wednesbury unreasonableness

Question 1

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948]

Answer 1

Lord Greene MR’s broad sense of ‘unreasonable’:

• This includes a decision that is:
• made by not properly directing oneself in law;
• made by not taking into account a relevant consideration;
• made by taking into account an irrelevant consideration;
• ‘so absurd that no sensible person could ever dream that it lay within the powers of the authority.’

Question 2

Wednesbury unreasonableness

Answer 2

The term ‘Wednesbury unreasonableness’ is usually reserved for a narrower, extreme sense of 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.’

Question 4

Judicial Restraint

Answer 4

• 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

Question 5

Reasons for Restraint/Deference

Answer 5

• Four main reasons for deference:
  
  • Legal allocation of power
  • Administrative expertise
  • Political responsibility
  • Effective process

Question 6

The Rule of Reason

Answer 6

• 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.’
• But consider Michael Taggart’s opposing argument:
  
  • Sir John Laws ‘stands the case on its head. … [T]he inscrutable Corporation never explained or justified its decision and the court was complicit in this non-transparency by assuming the answer to the very question to be decided and inferring what the Corporation must have thought and done.’
  • ‘Wednesbury is the antithesis of the rule of reason.’

Question 7

Wheeler v Leicester City Council [1985]

Answer 7

The Court of Appeal’s judgment

• The majority reasoned along Wednesbury lines to conclude that the council’s decision was lawful—i.e., it was not so unreasonable that no reasonable authority could have come to it.
• The majority emphasised the statutory duty to promote race relations and the ethnic mix of the community.
• Browne-Wilkinson LJ dissented.
  
  • The council’s decision was not ‘perverse’, but…
  • The ban unjustifiably infringed the fundamental right to free speech and conscience.
  • Browne-Wiklinson LJ did not cite any authority for the existence of this right in English law.
  • The reliance on fundamental rights in this case was an early sign of later common-law developments.

The House of Lords’ judgment

• Held that the council acted unlawfully
• Lord Roskill:
  
  • held there was procedural impropriety (even though this hadn’t been argued by the club), and
  • held that it was Wednesbury unreasonable (even though he accepted the council’s argument about its duty to promote good race relations).
• Lord Templeman:
  
  • held that it was unlawful because it punished the club when the club had done nothing wrong.

Question 8

Secretary of State for Education v Tameside MBC [1977]

Answer 8

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

Lord Diplock:

• ‘The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.’
• ‘[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.’

Question 9

Bromley London Borough Council v Greater London Council [1983]

Answer 9

• 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’.
• Is it the judiciary’s role to make judgments about public spending?

Question 10

Nottinghamshire County Council

Answer 10

• 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’.

Question 11

Puhlhofer v Hillingdon London Borough Council [1986]

Answer 11

• 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.’

Question 12

Criticism of Wednesbury unreasonableness

Answer 12

John Griffith’s argument:

• Judges are inevitably political.
• Their politics is conservative.

Does this explain the different decisions in these cases?

Beyond Wednesbury?

• Jowell and Lester argued for greater articulation of the substantive principles lurking in the existing law.
• Four substantive principles:
  
  • The principle of proportionality
  • The principle of legal certainty
  • The principle of consistency
  • Fundamental human rights

Question 13

R (Rotherham MBC) v Secretary of State for Business, Innovation and Skills [2015]

Answer 13

• It was claimed that the UK government had acted unlawfully in its allocation of EU funds (failing to treat like cases alike).

Lord Sumption:

• ‘The general principle of equality … is fundamental to any rational system of law… It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational.’
• ‘[T]he Secretary of State’s allocation is a discretionary decision of the kind which the courts have traditionally been particularly reluctant to disturb. There is no “right” answer…’
• Lord Neuberger:
  
  • ‘The line between judicial over-activism and judicial timidity is sometimes a little hard to tread with confidence, but it is worth remembering that, while judicial bravery and independence are essential, the rule of law is not served by judges failing to accord appropriate respect to the primary policy-making and decision-making powers of the executive.’