This chapter continues the discussion in Chapter 17. It includes grounds of review that are less clearly linked to the notion of ultra vires and which therefore especially raise issues of the proper limits of the courts’ role. It is important to bear in mind that the level (sometimes called the ‘intensity’) of review – in other words, the depth of the court’s investigation – varies with the context. The court will scrutinise a decision more rigorously according to the seriousness of its impact on the individual (see e.g. R (KM) v Cambridgeshire CC (2012) 3 All ER 1222 at : community care for the disabled). On the other hand, the court will show respect for a democratic decision-maker, an expert body, or a decision which appears highly ‘political’ in character (such as those entailing the allocation of limited resources), and be less intrusive in such cases (Section 19.7.1). As so often, an accommodation must be struck between competing concerns. Irrationality or ‘unreasonableness’ can be used to challenge the exercise of discretion, or findings of law and fact (Section 17.5). Although the question of what is reasonable must, as always, be decided in the context of the particular statutory power, this ground of review operates as an external control, in that it draws on values not directly derived from the statute. Indeed, the notion of ‘unreasonableness’ is so vague that it seems to invite the court to impose its own opinion of the merits in place of that of the decision-maker. Against this, the separation of powers, coupled with practical considerations, suggests that the courts should be cautious in interfering with the decisions of the executive on vague grounds such as unreasonableness.
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