Chapter 3: Unreasonableness

Question 1

1. Introduction

Answer 1

A further ground of challenge raised in judicial review is that a public body has acted
unreasonably. This ground of review is conceptually more nebulous than that of illegality. The broad idea underlying the ground was expressed in the following terms by Lord Wrenbury in Roberts v Hopwood [1925] AC 578: A person […] must, by the use of his reason, ascertain and follow the course which reason
directs. He must act reasonably.

Question 2

1 Introduction

Answer 2

The idea can be traced back at least as far as the Rooke’s Case (1598) 5 Co. Rep. 99b. However, in
its modern form it became known as ‘Wednesbury unreasonableness’ following the judgement of the Court of Appeal in the ‘Wednesbury case’

Question 3

Key case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680

Answer 3

Facts: Under s 1(1) of the Sunday Entertainments Act 1932 local authorities were given the power
to allow venues to show films on Sundays ‘subject to such conditions as the authority thinks fit to impose’. The Picture House was granted a licence to open on Sundays, but the local authority
granted this subject to the condition that no children under the age of 15 would be admitted on a Sunday

Question 4

Key case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Judgement

Answer 4

Held: In his judgment, Lord Greene MR said that the physical and moral health of children was a matter which a local authority, in exercising its powers, could properly have in mind when
considering what condition should be attached to the grant of a licence. The Picture House
therefore failed in its challenge. However, Lord Greene found that ‘[…] if a decision on a
competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere […]’. He added: ‘[…] to prove a case of that kind would require something overwhelming, and in this case, the facts do not come anywhere near anything of that kind’

Question 5

1.1 The Wednesbury test

Answer 5

The case is important because Lord Greene reviewed existing case law and attempted to
summarise what he considered to be well-established principles through which the courts could
contemplate interference with executive decisions. He emphasised that it was not for a court to interfere merely because it holds a different view on a matter of policy to that of the relevant public body and, in that sense, considers that the authority’s decision may be unreasonable.

Question 6

Wednesbury test.

Answer 6

Greene’s opinion that the court would be able to undertake a review where ‘a decision on a
competent matter is so unreasonable that no reasonable authority could ever have come to it’ has become known as the Wednesbury test.

Question 7

Lord Greene

Answer 7

Precisely what would be so unreasonable to meet the test was not discussed in any depth by Lord Greene. However, he did provide one example. He drew upon the judgment of Warrington LJ in Short v Poole Corporation which gave an example of a red-haired teacher being dismissed just because she had red hair.

Question 8

1.1.1 Reformulation of Wednesbury?

Answer 8

There have been some attempts to reformulate the basis of this ground. In the GCHQ case, Lord Diplock preferred to use the term ‘irrationality’ to describe
unreasonableness. He explained that: ‘It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it

Question 9

R v Devon CC, ex parte G [1988] 3 WLR 1386

Answer 9

Lord Donaldson argued against this approach, however, as he felt that it cast doubt upon the mental capacity of the decision-maker. It is probably better now to see irrationality as a sub-category of unreasonableness.

Question 10

Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry [1999] 2 AC 418

Answer 10

Also disapproved of Lord Greene’s formulation, describing it as tautologous and exaggerated. He
preferred to ask more simply whether the decision in question was ‘one which a reasonable
authority could reach’

Question 11

Lord Cooke’s formulation

Answer 11

For all its simplicity, still has its own problems, however; what one
authority might conclude may be different from another, yet both may be reasonable

Question 12

2 Classes of unreasonableness

Answer 12

According to De Smith and Jowell, there are three main classes of unreasonableness that have
been identified by the courts:
* Material defects in the decision-making process
* Oppressive decisions
* Decisions that violate constitutional principles

Question 13

2.1 Material defects in the decision-making process

Answer 13

These are defects that are not faulty in terms of ‘illegality’, but which are serious enough to render a decision flawed. This class of unreasonableness can itself be sub-divided into two further headings:
* Wrongly weighing-up relevant factors
* Failure to provide a comprehensive chain of reasoning: ‘irrationality’

Question 14

2.1.1 Wrongly weighing-up relevant factors

Answer 14

The two following cases provide examples of this aspect of unreasonableness. In West Glamorgan CC v Rafferty [1987] 1 All ER 1005 travellers faced eviction from local authority
land in circumstances where the local authority was under a statutory duty to provide sites in
their area. It had failed to do so, and it had not even attempted to provide temporary sites

Question 15

2.1.1 Wrongly weighing-up relevant factors

Answer 15

It was found that no reasonable local authority would have placed more weight on the fact that
there would be a delay in reclaiming the land, while temporary sites were found, over (i) the effects of eviction on the travellers themselves, and (ii) the impact on those who were likely to be affected elsewhere by the travellers trespassing in the meantime.

Question 16

Re Duffy [2008] UKHL 4

Answer 16

Concerned the appointment of two new members to the
Parades Commission of Northern Ireland (a body set up to resolve disputes relating to marches
and parades in the province). The two appointees were both prominent loyalist proponents of a parade along the Garvaghy Road, one of the most contentious of all marching routes in Northern
Ireland at that time.

Question 17

Lord Bingham

Answer 17

Stressed the significance of the Parades Commission as an independent, objective, and impartial mediator and concluded that the decision made was one which a reasonable Secretary of State could not have made, if properly directing himself in law, if in possession of the relevant facts and if taking account of necessary considerations. Both appointments were therefore confirmed as unlawful. (Note here the cross-over with the ground of illegality in terms of relevant factors.)

Question 18

2.1.2 Failure to provide a comprehensive chain of reasoning

Answer 18

This is the sub-category of unreasonableness that is often described as irrationality.

Question 19

Key case: R v Secretary of State for Environment, ex parte Fielder Estates (Canvey Ltd) [1988] 6 WLUK 62

This is a good example of this type of flawed decision.

Answer 19

Facts: After a planning application to build houses was refused, a public inquiry was set up, and
listed for three days. One of the objectors was to present evidence on the second day, but when
he turned up to do so, he found that the hearing had been closed on the previous day. A
complaint was made to the Secretary of State who, without consultation, ordered a completely fresh inquiry. The developers applied for judicial review of the decision because of the delays this would cause.

Question 20

Key case: R v Secretary of State for Environment, ex parte Fielder Estates (Canvey Ltd) [1988] 6 WLUK 62

Answer 20

Held: The Secretary of State’s decision was so unreasonable as to verge on the irrational because
there was no logical reason why the objector’s views could not have been considered in writing

Question 21

Fielder Estates

Answer 21

Can be contrasted with the decision in R v Secretary State for Health, ex parte Luff
[1992] 1 FLR 59; [1991] Fam Law 472, where irrationality was unsuccessfully raised as a ground of review. In this case a middle-aged couple wanted to adopt Romanian orphans but were refused. The Health Secretary had considered on the one hand, advice that suggested Mr Luff’s long-term health and life expectancy was not good. He had also taken account of, but not followed, the advice of the Bexley Health Panel, which had found the couple suitable to adopt

Question 22

Waite J

Answer 22

Found that the decision was not irrational because the opposing viewpoint, which took into account the likely trauma that would have been caused to the children, if the couple were to
suffer from ill health or death, was one that could be reasonably held.

Question 23

R v North-West Lancashire Health Authority, ex parte A, D & G [2001] 1 WLR 977

Answer 23

Buxton LJ found that the health authority’s general policy towards those seeking gender reassignment surgery was unlawful.

Question 24

R v North-West Lancashire Health Authority, ex parte A, D & G [2001] 1 WLR 977

Answer 24

In refusing to recognise a significant body of expert medical opinion, which supported the need for gender reassignment surgery in these cases, the health authority had in his view acted
irrationally, when stating that this treatment would have no proven clinical benefit.

Question 25

R (Rogers) v Swindon NHS Primacy Care Trust & Secretary of State for Heath [2006] EWCA Civ
392

Answer 25

Was an important case dealing with the availability of breast cancer treatment on the NHS.
The applicant successfully argued that the policy adopted by Swindon PCT was irrational. This
was because ‘there was no rational basis upon which it could properly provide funding for some
women [in the relevant eligible group] and not others, on the basis of exceptional circumstances’. (See para 55 of the judgment.)

Question 26

Key case: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

Answer 26

This is a significant modern case, involving several issues relating to unreasonableness, as well as
other grounds of challenge.

Question 27

Key case: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

Answer 27

Facts: Under the Counter-Terrorism Act 2007 the Treasury issued a direction prohibiting all parties in the UK financial sector from dealing with the claimant bank, because of its alleged connections with Iran’s nuclear programme. The Act contained certain safeguards, including that the conditions in a direction had to be ‘proportionate’, having regard to the risk to the national
interests of the UK.

Question 28

Key case: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 Judgement

Answer 28

Held: The action taken by the Treasury was unlawful in the sense that it was irrational and
arbitrary and did not amount to a proportionate response in aiming for the intended objective.
Lord Sumption stated firstly that Bank Mellat had effectively been singled out for harsh treatment,
when there was a similar risk of other Iranian financial institutions facilitating the nuclear programme. Secondly, the court was not satisfied that the justification for the actions taken,
given by ministers in Parliament, was entirely consistent with those advanced as part of the
litigation.

Question 29

R (DSD and NBV) v The
Parole Board [2018] EWHC 694

Answer 29

There was further useful discussion of the rationality of public law decisions and the close
connection between this broad ground of review and that of illegality in R (DSD and NBV) v The
Parole Board [2018] EWHC 694

Question 30

R (DSD and NBV) v The
Parole Board [2018] EWHC 694

Answer 30

This case involved a challenge by a number of interested parties to the decision by the Parole
Board to release the convicted rapist and former taxi-driver, John Radford (previously known as
John Worboys).

Question 31

Court Accepted

Answer 31

The court accepted that the Board had not acted irrationally during the parole hearing, in failing
to probe the evidence presented to it rather more thoroughly than it had done. However, it did find
that the Board had acted irrationally by failing to follow this up by making further inquiries, given the evidence it possessed of significant further criminal offending that had been carried out by Worboys. This evidence was seen as ‘so obviously material’ that no reasonable Parole Board
should have failed to carry out further investigations before making its final decision.

Question 32

2.2 Oppressive decisions

Answer 32

Where a decision imposes excessive hardship or represents an infringement of rights, which is
deemed unnecessary, the courts will consider it to be oppressive and therefore in that sense
unreasonable. A particular example is the imposition of a penalty for legal behaviour, as seen in the following case.

Question 33

Key case: Wheeler v Leicester City Council [1985] AC 1054

Answer 33

Facts: A ban was imposed by the local authority on Leicester Rugby Club, which prevented the
club from using the City Council’s Welford Road ground for its matches. The ban had been
introduced because three Leicester players intended to play in an unofficial tour of South Africa (during the period of the ‘apartheid’ regime in that country.)

Question 34

Key case: Wheeler v Leicester City Council [1985] AC 1054 Judgement

Answer 34

Held: The ban was an improper use of statutory power and had the effect of punishing the club
unfairly. The House of Lords also found the decision to be ‘Wednesbury unreasonable’. According to Lord Roskill, although the decision was ‘Wednesbury unreasonable’, it was far from clear that it was illogical or immoral. However, he did feel that the policy was unreasonably punitive on the club which had remained neutral on the matter.

Question 35

2.2.1 Further cases

R v Secretary of State for the Home Department, ex parte Norney [1995] 7 Admin LR 861

Answer 35

In R v Secretary of State for the Home Department, ex parte Norney [1995] 7 Admin LR 861 a
policy applied by the Home Office was considered unreasonable.
The case concerned the refusal to refer the cases of five IRA prisoners serving discretionary life
sentences to the Parole Board until their tariff had expired. It was held to be unlawful because it
would have meant them serving many months longer in detention than if referrals were made in
advance.

To follow such a policy, without compelling reasons, was held to be ‘Wednesbury unreasonable’ on the basis that it was oppressive and was contrary to the principles of common law, as well as article 5(4) of the European Convention on Human Rights

Question 36

R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452

Answer 36

In R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452 the decision of a local authority to remove Hook’s market trading licence, because he had urinated in a side street (after the market had closed), was quashed.
This was, in part, on the basis that the decision was excessive, and had a disproportionate impact upon the claimant and his livelihood.

Question 37

2.3 Decisions that violate constitutional principles

Answer 37

In order to uphold the rule of law, decisions made by public bodies should be consistent and rules
should be sufficiently certain. Decisions that contradict these principles can be held to be unreasonable, as they represent arbitrary decision-making and can lead to inequality before the
law

Question 38

R v Secretary of State for the Home Department, ex parte McCartney [1994] COD 528

Answer 38

The Home Secretary had set the tariff sentence for McCartney (an Irish Republican who was serving
three discretionary life sentences for the attempted murder of a policeman), at a higher level than
for others who had committed more serious crimes of a similar type.

Question 39

Inconsistent

Answer 39

It was held that the action of the Home Secretary was inconsistent with the treatment of other
similarly affected persons and so his decision was found to be ‘Wednesbury unreasonable’.

Question 40

Percy v Hall [1997] QB 924

Answer 40

The Court of Appeal was asked to consider the argument that certain military byelaws were too uncertain in their geographical scope. Protesters, who tried to enter a military base, were arrested and sought to argue that the boundaries of the bases were not defined clearly enough in the byelaws, so members of the public could not know with certainty
where they could or could not go. The possibility of such a challenge was accepted by the court but it ultimately rejected the challenge on the facts.

Question 41

3. Intensity of review

Answer 41

When considering the topic of unreasonableness, it is not only necessary to consider the technical basis on which the relevant decision may be challenged; it is also important to assess the context in which the decision has been reached. This will determine the approach of the court when it comes to the degree or extent of judicial intervention.

Question 42

Relevant context of unreasonableness

Answer 42

This secondary, albeit equally important consideration, is relevant in the context of
unreasonableness, and also legitimate expectation, as these are ‘substantive‘ grounds of judicial review. Such grounds may purport to criticise the substance of a decision, as opposed to or as
well as, the manner in which it was made.

Question 43

Intensity of review

Answer 43

The degree to which the courts will scrutinise decisions is known as intensity of review. It can be
seen as a practical manifestation of how the theory of the separation of powers operates when the courts scrutinise executive actions and decisions.

Question 44

Two different ends of a spectrum

Answer 44

The courts will tend to distinguish between two different ends of a spectrum of subject matter.
Note that the courts are not making a formal calculation on this point but are instead coming to a background contextual judgement which will influence their approach and may have an
important bearing on the outcome of cases before them.

Question 45

3.1 Rationale

Answer 45

The courts’ approach to the intensity of review reflects the interplay of two closely related ideas:

• Constitutional entitlement: The courts tend to be reluctant to interfere with the decisions of
  democratically elected officials on questions of policy.
• Institutional competence: Fundamental rights have traditionally been seen as something the courts are under a strong duty to protect. Not only should the courts scrutinise decisions concerning fundamental rights more closely; judges are also more experienced,
  knowledgeable and skilled in assessing these kinds of questions.

On the other hand, they are less experienced in the evaluation of ‘high policy’ matters, notably
those involving national defence, security and allocation of public resources.

Question 46

3.2 The traditional Wednesbury standard

Answer 46

The standard of review, set out by Lord Greene in Wednesbury, was based on the following
formulation: [if] a decision on a component matter is so unreasonable that no reasonable authority could have come to it, then the courts can interfere

Question 47

3.2 The traditional Wednesbury standard

Answer 47

This represents a very high threshold for an applicant to overcome – a notably high or
exceptional level of unreasonableness would have to be found. Consequently, the original standard has been modified in some situations by the judiciary, representing an example of how the common law can respond and evolve to meet the need to protect rights and other fundamental interests.

Question 48

3.2.1 Broad social and economic policy questions

Answer 48

It remains the case that the courts are reluctant to review decisions relating to social and economic policy. They operate a higher degree of deference (and therefore apply a lower
intensity of review) to the decision-maker in such circumstances. This means that the traditional Wednesbury standard with its very high threshold continues to apply in this area

Question 49

Key case: Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240

Answer 49

In this case the court coined the phrase ‘super-Wednesbury’ to denote these areas of policy
decision-making, which are deemed to be political and not within the proper ambit for judicial review (other than in exceptional circumstances). The question before the court was whether it could intervene to quash the Environment Secretary’s guidance to local authorities, setting public
spending limits. This guidance had been approved as a statutory instrument by Parliament,
however, and so was seen by the court to have had the ‘seal of democratic approval’.

Question 50

Lord Scarman said:

Answer 50

Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgement for him and for the House of Commons. They are not for the judges.

Question 51

R v Cambridge District Health Authority, ex parte B [1995] 1 WLR 898

Answer 51

Sir Thomas Bingham MR
stated that decisions about how a ‘limited budget is allocated to maximum advantage for the
maximum number of patients’ was not something a court should make, notwithstanding the
compelling factual circumstances. (The case involved a child who was being denied additional important medical treatment for leukaemia by the health authority.)

Question 52

R v Secretary of State for the Home Department, ex parte Javed [2001] EWCA 789

Answer 52

However, the involvement of matters of high policy does not automatically prevent the court from intervening. In R v Secretary of State for the Home Department, ex parte Javed [2001] EWCA 789, the Court of Appeal held that the minister had acted irrationally when he made a statutory instrument, which designated Pakistan as a country in which ‘in general there is no risk of persecution’. This went against an abundance of evidence that persecution was widespread in
Pakistan at the time.

Question 53

3.2.2 Decisions affecting fundamental rights

Answer 53

The reverse side of the deference coin is that in some circumstances the courts are increasingly
willing to exercise a more intense degree of scrutiny when assessing the reasonableness of a
decision. This point assumed particular prominence in the late 1980s and 1990s on issues
concerning fundamental or human rights. In terms of the traditional Wednesbury standard, this heightened standard became known as ‘sub-Wednesbury’.

Question 54

Bugdaycay v Secretary of State for the Home Department [1987] AC 854

Lord Bridge said that the courts are entitled:

Answer 54

[…] to subject an administrative decision to the more rigorous examination, to ensure that it is
in no way flawed, according to the gravity of the issue which the decision determines. The
most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny. Even where a heightened scrutiny is applied in the context of unreasonableness, this will not
necessarily be sufficient for a challenge to be successful, as demonstrated in the following case.

Question 55

Key case: R v Ministry of Defence, ex parte Smith and Others [1996] QB 517

Answer 55

The applicants were discharged from the armed forces on the basis of their sexuality, in
accordance with Ministry of Defence (MOD) policy at that time. Although the MOD argued that
the matter was non-justiciable (see Lord Roskill’s obiter speech in GCHQ), the court reviewed the
issue with a relatively intense degree of scrutiny. It justified its approach by distinguishing
between cases concerning high military policy (national security; military operations) and those,
as in this case, concerning membership of the armed forces and the rights of those serving.

Question 56

Key case: R v Ministry of Defence, ex parte Smith and Others [1996] QB 517

Answer 56

Notwithstanding, the applicants were unsuccessful in their domestic challenge. A key factor in the court’s decision was that the policy had been debated and was then supported by a significant
body of opinion in Parliament. The MOD’s policy position could not, therefore, be considered
outside the range of reasonable responses on the issue in question, in terms of the Wednesbury test.

Question 57

R (Rogers) v Swindon NHS Primary Care Trust & Secretary of State for Health [2006] EWCA Civ 392

Answer 57

It is worth referring back to R (Rogers) v Swindon NHS Primary Care Trust & Secretary of State for
Health [2006] EWCA Civ 392, in which a relatively intense degree of scrutiny was applied, despite
there being no formal argument put forward on human rights grounds.

Question 58

Human Rights Act 1998 (HRA)

Answer 58

Note that this case, unlike Smith, was heard after the Human Rights Act 1998 (HRA) came into
force (in 2000). The court recognised that, although Article 2 of the European Convention on
Human Rights (ECHR) had not been specifically raised, the case concerned a decision that may
involve a life-or-death decision for Ms Rogers, and it therefore concluded that rigorous scrutiny
was appropriate.

Question 59

4. Proportionality: Introduction

Answer 59

The Human Rights Act (HRA) has provided further development of judicial scrutiny in respect of
decisions that affect fundamental rights. When human rights protected by the ECHR are engaged, the relevant test to be applied by the courts is that of proportionality rather than
Wednesbury unreasonableness. (This is covered in greater depth in study of the ECHR and HRA.) Proportionality is the general approach in EU law as well.

Question 60

4.1 Proportionality as an independent JR ground?

Answer 60

In GCHQ, Lord Diplock suggested that in future there may be additions to the three heads of review which he identified at that time. One of the possible new grounds he referred to was proportionality.

Question 61

Doctrine of proportionality

Answer 61

The doctrine of proportionality requires in general terms that the means employed by a decisionmaker to achieve a legitimate aim must be no more than is necessary to achieve that aim. There has been considerable comment and contention, judicially and academically, about the nature of the proportionality test and its application to public law cases, in which ECHR (or EU
law) rights are not engaged.

Question 62

Orthodox view

Answer 62

The orthodox view of the place of proportionality in UK law was set out in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696. In that case the relevant decision was
challenged both on the basis that it was Wednesbury unreasonable and that it was disproportionate. In declining to recognise an independent ground of proportionality, Lord Ackner
stated that:

Question 63

No independent ground

Answer 63

Unless and until Parliament incorporates the convention [ie the ECHR] into domestic law [… there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country […]. This orthodox position with regard to proportionality in domestic administrative law has been
challenged in a number of subsequent cases

Question 64

In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 Lord Cooke was strongly critical of the Wednesbury test:

Answer 64

The day will come when it will be more widely recognised that […] Wednesbury […] was an
unfortunately retrogressive decision in English administrative law […] in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation

Question 65

Lord Steyn

Intensity of review under proportionality approach

Answer 65

Also in Daly, Lord Steyn discussed the distinctions between the Wednesbury standards of review
and proportionality. His view was that, whilst most cases would yield the same result, ‘the intensity of review is somewhat greater under the proportionality approach’ which could provide different outcomes. For example, contrast the domestic decision in ex parte Smith (discussed
above) with the European Court of Human Rights’ decision in Smith and Grady v UK.

Question 66

4.1.1 Further cases

R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389

Answer 66

Lord Slynn stated his belief that the time had come to recognise that proportionality was an
established principle of administrative law, not just limited to the ECHR and to EU law. He stated that: […] trying to keep the Wednesbury principle and proportionality in separate compartments seems to […] be unnecessary and confusing.

Question 67

Association of British Civilian Internees - Far East Region v Secretary of State for Defence [2003] 3 WLR 80

Answer 67

However, in Association of British Civilian Internees - Far East Region v Secretary of State for Defence [2003] 3 WLR 80, whilst recognising that arguments for recognising proportionality as a general test applying to all domestic cases were strong, Dyson LJ stated, in relation to Wednesbury unreasonableness, that ‘it is not for this court [ie the Court of Appeal] to perform its burial rites’.

Question 68

Pham v Secretary of State for the Home Department [2015] UKSC 19

Answer 68

The case of Pham v Secretary of State for the Home Department [2015] UKSC 19 concerned a
decision to deport a Vietnamese-born man and to deprive him of British citizenship. Whilst the
discussion of proportionality was ultimately obiter, it marks the most direct engagement of the Supreme Court to date with this standard of review

Question 69

Proportionality as a more forensic and precise legal test than Wednesbury.

Answer 69

Proportionality was again viewed as a more forensic and precise legal test than Wednesbury. However, the court did not feel that it necessarily promoted greater judicial intervention – it could itself be applied with a varying degree of intensity, depending on the constitutional and practical
context of the legal issue in dispute

Question 70

Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69

Answer 70

In Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 Lord
Neuberger suggested that the possible replacement in domestic law of Wednesbury
unreasonableness with a proportionality standard should only be sanctioned by a full panel of the UKSC, given that it would represent a very significant constitutional development in domestic law.

Question 71

4.1.2 Future for proportionality?

Answer 71

Finally, in Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 Lord
Carnwath appeared to accept the need for an ‘authoritative review’ of this area of public law by
the Supreme Court

Question 72

4.1.2 Future for proportionality?

Answer 72

This is a subject which continues to attract intense academic debate. […] It is to be hoped that an opportunity can be found in the near future for an authoritative review […] of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the
lower courts than such imprecise concepts as “anxious scrutiny” and “sliding scales”.

Question 73

5. Summary

Answer 73

We have considered the following sub-classes of unreasonableness in the context of the Wednesbury test:

• Material defects in the decision-making process. Where the decision-maker:
• Wrongly weighs-up relevant factors; or
• Fails to provide a comprehensible chain of reasoning (‘irrationality’).
• Oppressive decisions. Where the decision-maker imposes excessive hardship which is
  considered unnecessary.
• Decisions that violate constitutional principles. Where the decision-maker makes inconsistent
  or uncertain decisions.

Question 74

In the context of unreasonableness, we have considered:

Answer 74

• The courts’ approach to the intensity of review: To what degree will the courts scrutinise the decision under challenge?
• A higher intensity of review: ordinarily in cases involving fundamental rights; or
• A lower intensity of review: ordinarily in cases involving social and economic policy, or other high policy matters such as national security

Question 75

Intensity Review is not binary

Answer 75

• Intensity of review is not a binary consideration; cases may involve both fundamental rights
  and social and economic policy. The courts will determine this question on a case-by-case basis.
• The increasing significance of the proportionality approach.