From the outset, Hogan and Morgan make it clear that controlling the review of administrative discretion is a difficult area of law to master, particularly noting “the formulation of a precise test is especially difficult because it has been made to apply to such a wide range of subject matter.” Indeed the practice of reviewing administrative discretion is one that involves many interlinking factors, and has punctuated the judicial system for many years. Even to this day, “the law in relation to…discretionary power is in a state of change.”
When entering the arena of judicial review, there is a fine line to be navigated in terms of balancing the need for judicial scrutiny and maintaining an appropriate level of curial deference. In attempting to balance these competing interests, and ultimately arrive at the fairest decision making process, the courts have progressed through a number of phases. In terms of unreasonableness, a head of review, jurisprudence has emanated from the highly controversial Wednesbury case. This essay aims to trace the progression of the law in this area, moving from Wednesbury unreasonableness through to the modern position laid out in the Meadows case, and ultimately suggest that the adoption of a proportionality test, as a separate head of review, is beneficial and would be most welcome in the Irish administrative law framework. This essay will analyse the position which Meadows has left this potentiality in. It will be noted throughout, that this is a difficult proposition, involving a large number of considerations, but simultaneously postulated that a well-reasoned proportionality test would go a long way to achieving an ideal balance for administrative review.
II. The foundations of unreasonableness
The concept of unreasonableness derives from the Wednesbury case, an English decision of Lord Greene MR. While the judge in this case eruditely acknowledged that the role of judicial review was not to overturn a decision that it did not like, à la Chief Constable for North Wales , it is promulgated that he failed in his assertion of a fair reasonableness test. Lord Greene’s formulation of unreasonableness, or irrationality, revolves around the belief that an unreasonable decision must be “so unreasonable that no reasonable authority could ever have come to it” before a court can interfere. This test became the standard for unreasonableness, and was followed with similar espousals in other leading cases, most notably, the judgment of Lord Diplock in CCSU v Minister for the Civil Service.
It is submitted that criticism has rightly landed at the feet of the Wednesbury test for a number of reasons. First, the threshold imposed on the is unfairly high , leaving the applicant with very little recourse in terms of being able to discharge the burden of proof laid out before them. More fervently, much criticism has been lobbied at the actual formation of Lord Greene’s test, deriding the circularity and...