JR: Wednesbury Unreasonableness

Question 1

Wednesbury (Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223):

Answer 1

PRINCIPLE:
Lord Greene on Wednesbury Unreasonableness - ‘so absurd that no sensible person could ever dream that it lay within the powers of the authority.’ ~ (this is what people typically refer to when referring to wednesbury unreasonableness)

• ‘It is true 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.’
• ‘[B]ut to prove a case of that kind would require something overwhelming…’
• ‘It is not what the court considers unreasonable, a different thing altogether.’

FACTS:
- Sunday Entertainments Act 1932, s 1(1): local authorities may allow cinemas to open on Sundays, ‘subject to such conditions as the authority thinks fit to impose.’

• Wednesbury Corporation gave the cinema permission, subject to the condition that no children under 15 years of age would be admitted on Sundays.
• The cinema sought a declaration that the condition was unlawful because it was unreasonable.

HELD:
NOT UNREASONABLE

Question 2

Judicial Restraint

Answer 2

Lord Irvine of Lairg:

Wednesbury review is ‘shorthand for that constitutional school of thought which advocates judicial self-restraint in public law matters’—a shorthand which the ‘vast majority of lawyers would still acknowledge to be the guiding principle of our system of judicial review.’

Wednesbury Unreasonableness sets a very high bar for irrationality for judicial review to be able to take part - in practice acting as a restrain on judicial review’s scope.

Question 3

4 Main Reasons for Restrain/Deference of Judicial Review?

Answer 3

4 Main reasons:

• Legal allocation of power (if parliament wanted to allocate the discretion to th court it would have said so)
• Administrative expertise (administration is able to gather higher level of expertise on the topics at hand)
• Political responsibility (minister, decision maker with some level of democratic or political responsibility…

-Effective process. (Procedures that administration has for providing answers may be more effective than judicial procedures)

Question 4

Rule of Reason and Wednesbury

Answer 4

Sir John Laws:

• Wednesbury ‘exemplifies the rule of reason as a fundamental principle of the law’, which requires that the public authority’s decision ‘must be objectively justified.’
• ‘The rule of reason requires a variable standard of review.’

Question 5

Wheeler v Leicester City Council [1985] AC 1054:

Answer 5

PRINCIPLE: procedural impropriety!

• the authority for JR for intervening when an authority has not followed procedural fairness in decision making. (? double check this)

FACTS:

• Members of Leicester Tigers took part in a Rugby Football Union tour of apartheid South Africa in 1984.
• The Labour-controlled Leicester City Council asked the club to stop its members going on the tour.
• The club condemned apartheid, but insisted that there was reasonable disagreement over the best way to oppose it. (Did not believe boycotting was the way to proceed)
• The council suspended the club’s use of a municipal recreation ground, defending its action on the basis of the Race Relations Act 1976, s 71 (which imposes a duty to promote good race relations).

HELD:
HL -
- council acted unlawfully
- there was procedural impropriety
- it was Wednesbury unreasonable
- LORD TEMPLEMAN: it was unlawful bc it punished the club when the club had done nothing wrong.

Question 6

CASES THAT TOOK INTERVENTIONIST VIEW

Answer 6

***Secretary of State for Education v Tameside MBC [1977] AC 1014:

PRINCIPLE:
‘[T]he question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.’

• HL applying the ‘high Wednesbury standard’- held SoS acted unreasonably.

FACTS:
- The (Labour) government ordered a (Conservative) local education authority to change a school from a selective grammar into a comprehensive.

• The Education Act 1944, s 68, empowered the Secretary of State to intervene if he was ‘satisfied … that any local education authority … have acted or are proposing to act unreasonably’.

HELD:
- The House of Lords held that the Secretary of State’s decision was unlawful, because the council’s action was not so unreasonable that no reasonable authority could have adopted it

***Bromley London Borough Council v Greater London Council [1983] 1 AC 768: The ‘Fares Fair’ Case:

FACTS:
- The (Labour-controlled) GLC implemented its manifesto commitment to cut fares on the London underground—a cost which would be met through the rates (local government taxes at the time).
- The House of Lords held that the GLC had acted unlawfully.
- Their Lordships (except Lord Keith) held that the GLC was under a ‘fiduciary duty to the ratepayers’.
- COMMENT: Is it the judiciary’s role to make judgments about public spending? (Probably not… decision for public resources)

Question 7

CASES that were more conservative in applying Wednesbury unreasonableness

Answer 7

These cases were a pull back from the previous cases which sought a more interventionist view. The courts here are seen to have a narrower interpretation for Wednesbury unreasonableness.

R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240 : Nottinghamshire County Council

• Facts:
• The (Conservative) Secretary of State set expenditure targets for local authorities.
• Two (Labour-run) local authorities sought judicial review, arguing that the targets were unreasonably low.
• The House of Lords held for the Secretary of State.
• Lord Scarman: Wednesbury unreasonableness could only succeed if the Secretary of State had acted in a way that was ‘so absurd that he must have taken leave of his senses’.
  This is a narrower interpretation of ‘unreasonable’.

Puhlhofer v Hillingdon London Borough Council [1986] AC 484
- Facts:
- A married couple with two young children lived in one room at a guesthouse, with no cooking or laundry facilities, and no meals except breakfast.
- They applied to the local authority for housing under the Housing (Homeless Persons) Act 1977.
The application was refused on the ground that the family was not homeless.
- The Puhlhofer family won in the Divisional Court, but lost in the Court of Appeal and House of Lords.
- The House of Lords’ judgment (Lord Brightman):
‘I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the [Housing (Homeless Persons) Act 1977].’
The courts should only intervene in the discretionary judgments of public bodies if they act ‘perversely’.
‘Parliament plainly, and wisely, placed no qualifying adjective before the word “accommodation”. … The word “appropriate” or “reasonable” is not to be imported.’ ~ Parliament did not set out that accommodation must be of a certain quality, and the Court refused to intervene for this reason as it was not clearly unreasonable.