Is it now time for UK courts to ‘ditch’ Wednesbury unreasonableness and replace it with

an independent ground of proportionality for judicial review?

Judicial review (JR) is a legal process by which an applicant with standing can apply to
challenge the decision of a public body. Broadly, it allows courts to check on the exercise of
public power ensuring the validity and fairness of public decisions. Traditionally, the courts
have used three main grounds through which a JR application can be brought: illegality,
unreasonableness and procedural impropriety (Associated Provincial Picture Houses v
Wednesbury Corporation1). Within this, the only means to challenge the justification for, or
merits of, a public body’s decision was through unreasonableness, as stated by Lord Greene
in Wednesbury.

Wednesbury unreasonableness is also known as irrationality after Lord Diplock stated in

GHCQ (FULL NAME) 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” 2. It appears that when considering irrationality, there
are two limbs to examine as per Lord Greene3. First, “the court is entitled to investigate the
action of the authority with a view to seeing if it has taken into account any matters that
ought not to be or disregarded matters that ought to be taken into account” 4. This focus is
clearly on the decision making process of the public body as recently seen used in The
Parole Board [2018]5. The second limb concerns the outcome; though the decision made
have been made lawfully and reasonably, have they still come to “a conclusion so
unreasonable that no reasonable authority could ever have come to it” (Lord Greene). This
limb appears to have a higher threshold looking at sheer irrationality and possible “abuse of
power by a public body”6. Roberts v Hopwood7 and Backhouse v Lambeth LBC8 are some of
the rare cases where this limb has succeeded.

Given that Wednesbury unreasonableness standard appeared to have such a high-

threshold, there developed two varying Wednesbury standards: 1) “sub-Wednesbury” and
2) “super-Wednesbury”. The former is high intensity where courts apply more intense or
“anxious” scrutiny (Bugdaycay v SoS for Home Depart9) and generally concern cases
involving fundamental, human rights. The latter is low intensity with a higher degree of
deference for cases concerning economic or social policy; areas courts feel are outside their
jurisdiction and the ambit of JR (Nottinghamshire CC v SoS for Environment10).

Proportionality on the other hand, is not an established ground of review in British law.
Proportionality is a doctrine used to determine the lawfulness of a public authority’s

1
Associated Provincial Picture Houses v Wednesbury Corporation [1947]
2
GCHQ -> full case name
3
Live and Kicking article
4
Lord Greene (Wednesbury)
5
R (DSD and NBV) v The Parole Board [2018] EWHC 694 (Admin), [2018] 3 All ER 417
6
Live and Kicking Article
7
Roberts v Hopwood[1925] AC 578, [1925] All ER Rep 24
8
Backhouse v Lambeth LBC [1972] 116 Sol Jo 802
9
Bugdaycay v SoS for Home Department [1987]
10
Nottinghamshire CC v SoS for Environment (1986
reasoning for infringing upon private rights. It’s used to assess whether in achieving a
legitimate aim, a decision-maker has done no more than is necessary to achieve that aim;
the conduct has been proportionate to the outcome. This standard engages courts in the
merits of public decision-making with much higher scrutiny than the other traditional review
standards which is why it has been considered controversial. So, unlike Wednesbury
unreasonableness, proportionality appears to be mainly focused on the outcome of a
decision. Indeed, a well-reasoned decision could still have “a disproportionate impact on the
right of an individual and therefore be unlawful”11.

The development of proportionality/experience courts have had to date in applying

proportionality standard with public law at large

The proportionality principle has grown to become a recognised (but not legally established)
feature within English administrative law after an uneasy introduction. The doctrine
developed in governmental law in many countries within the European Community (EC) by
the mid 1980s and became an important feature of the general principles of European
Community law as seen in Bela-Mühle v Grows-Farm GmbH (1977)12.

This standard was used by the European Courts of Justice and the European Court of Human
Rights (ECtHR) to examine the legality of states’ intervention in fundamental rights to
ensure a public decision does not restrict private interests more than is necessary for
achieving its objective. The fundamental rights concerned are those protected by European
Law under the European Convention of Human Rights (ECHR).

Proportionality was applied into English law through section 2 of the now repealed
European Communities Act 1972 but it wasn’t until 1990s that it was recognised in our
courts when it began to be felt that Sub-Wednesbury and Super-Wednesbury were not
enough for the exacting, intense enquiry needed for reviewing fundamental rights. This was
first seen in ex parte Smith (1995)13 where it was found that employment dismissal on the
grounds of private sexual preference demonstrated lack of respect yet the courts applied
irrationality standards because they deemed proportionality outside their jurisdiction. This
was an important case which I will consider in further detail later.

There continued to be judicial caution towards proportionality seen in ex parte Brind14

(1991) where the decision was challenged through grounds of it being Wednesbury
unreasonable and disproportionate. Yet the court declined to recognise a wholly
independent ground of proportionality. With the introduction of the Human Rights Act
(HRA) 1998, proportionality became a further established standard for cases brought under
the HRA (R (Daly) v SoS for Home Department (2001)). SEMINAL CASE -> STEYN REITERATED
THE ELEMENTS OF PROPORTIONALITY REVIEW. (USE VEENA). In Daly, Lord Cooke openly
criticised Wednesbury standards stating that the time will come to recognise that
“Wednesbury…was an unfortunately retrogressive decision in English administrative law…

11
Veena
12
Bela-Muhle
13
Smith full case name
14
ex parte Brind (1991)
[by suggesting] there are degrees of unreasonableness and only a very extreme degree can
bring an administrative decision within the legitimate scope of judicial invalidation.” Lord
Steyn reiterated the elements of the proportionality review demonstrating that where
fundamental, Convention rights are involved, the courts use proportionality to form a view
of the fairness of the balance. Such a balancing act is not within the ambit of irrationality.

This attitude appeared to become more widespread with Lord Slyn claiming proportionality
should be recognised as an established principle of administrative law in R (Alconbury) v SoS
for Environment, Transport and Regions [2001]. The first direct Supreme Court (UKSC)
engagement with proportionality was then seen in Pham v SoS for Home Department
[2015] where discussion recognised it for its precise and exacting legal assessment which no
previous tests had achieved.

Furthermore, in R (ABCI – Far East Region) v SoS for Defence (2003) it was stated that
proportionality should be judicially recognised by UKSC to replace Wednesbury
unreasonableness. This was confirmed by Lord Neuberger in Keyu v SoS for Foreign and
Commonwealth Affairs [2015] stating that such a change in English constitutional law would
need full UKSC sanction.

This ongoing discussion and judicial debate was recognised in Youssef v SoS for Foreign and
Commonwealth Affairs [2016] with Lord Carnwath calling for an “authoritative review” of
this area to replace confusion and uncertainty of “imprecise concepts as “anxious scrutiny”
and “sliding scales”.

Despite this increasing discussion and inclination to give proportionality formal

representation, in English law, at present, proportionality is still not an available ground for
JR.

Ex parte Smith and others (1996)

Smith was one of the first UK cases to grapple with Wednesbury unreasonableness doubts,
demonstrating a need for a further test in relation to human rights. The case was brought by
four claimants, each having been discharged from the Armed Forces on account of their
homosexuality on account of the discriminating blanket ban policy against homosexuals.

The case encapsulates the tension between the executive and the court whereby the court
felt unable to give weight to the human rights/privacy matters of the case as such factors
were not yet enshrined in domestic law; four years later the HRA came into effect. Perhaps
the case would have had a different outcome had it been held in the early 2000s. Despite
this, the judges also appeared to make clear the suitability and necessity of Wednesbury
unreasonableness.

At first instance in the Queen’s Bench Division, Brown, LJ and Curtis, J dismissed the case.
Brown’s judgment is particularly noteworthy due to his clear support for the claimants and
an overriding opinion that the blanket ban policy was disadvantageous. Primarily, he felt it
was a “grave invasion” of an individual’s freedom to live in accordance with his/her sexual
orientation. Here, Brown highlighting Article 8 of the ECHR where "everyone has the right to
respect for his private and family life”. Mentioning Norris v. Ireland15 quoting Dudgeon v.
United Kingdom16, Article 14 should also be considered as sexual orientation "concerns a
most intimate aspect of private life" (s1(1) Sexual Offences Act 1967).

However, Brown struggled with the dichotomy between protecting the individuals’ rights
and needing to adhere to a super-Wednesbury intensity approach, considering Ex parte
Hammersmith17. The subject of Smith touched upon the defence of the realm and protecting
national security and Brown commented on the Secretary of State’s position in justifying
this policy and determining the “delivery of an operationally efficient and effective fighting
force”18. That is not to say Brown felt the human rights element should be disregarded.
Quoting Neill L.J in ex parte Brind, he felt “that on the facts of this case I can see no basis
whatever for this court lowering the 'threshold of unreasonableness”19. Brown found
difficulty in that Smith uniquely combined fundamental right factors and features generally
considered as rendering a case “inappropriate for the court’s review process”.

Overall, this culminated in a decision that super-Wednesbury approach was the most
favourable with a need to act with reverence despite human rights features. Brown
concluded by emphasising this was a domestic position and in domestic law as it stood, the
decision made by Parliament was rational.

Curtis, J. largely agreed citing Vilvarajah v United Kingdom20 to state that where a decision is
challenged on the grounds of irrationality in a human rights context “the classic
Wednesbury test is sufficient to accommodate the requirements of the European
jurisprudence”21. He concluded that Article 8 is a qualified right and one justified under
article 8(2) as being necessary in a democratic society since member states have a wide
margin of appreciation in assessing pressing social needs and choosing the means to achieve
the legitimate aim of national security22.

At the Court of Appeal, with judgment delivered by Bingham, M.R., Henry and Thorpe, L.JJ, a
similar result was found. The policy and subsequent dismissal was considered rational for
three main, reasonable reasons: 1) it was supported by both Houses of Parliament; 2) the
Treaty of Rome and Council Directive 76/207 did not apply to discrimination on the grounds
of sexual orientation and 3) the failure to consider Convention obligations did not dispute
the exercise of discretion. Bingham stated that the question of whether the policy was
contrary to the Convention should be decided by the ECtHR not an English court.

Crucially, it was held that applying Wednesbury unreasonableness was sufficiently flexible to
cover all situations. Bingham stated that “major policy changes should be the product of
mature reflection, not instant reaction. The threshold of irrationality is a high one. It was not

15
Norris v. Ireland (1988) 13 E.H.R.R. 186
16
Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149
17
Ex parte Hammersmith and Fulham London E Borough Council
18
At para??
19
At para??
20
Vilvarajah v. United Kingdom, 14 E.H.R.R. 248
21
At para?
22
B. v. United Kingdom, 34 D. & R. 68
crossed in this case”23. However, Bingham didn’t hesitate to acknowledge that fundamental
rights had been breached, citing Article 8 and posing whether, as in Norris v Ireland, the
decision in question "answers a pressing social need and in particular, is proportionate to
the legitimate aim pursued”24. He denied their ability to answer such a question. Henry, LJ
agreed holding that “Parliament has not given our judges primary jurisdiction over the
human rights issues contained in the Convention…the court should not speculate”25.

The judges insinuated that a proportionality reviewing standard was needed but that it was
not within their current jurisdiction. Furthermore, there was an overwhelming agreement
that Wednesbury unreasonableness was the correct standard to be applied. In using it, both
courts analysed the process of the decision, finding it to be rationale in the current state of
law. Proportionality was referenced quite distinctly in relation to human rights factors.
Therefore we have a separation of the two standards and a clear qualitative difference for
their uses.

Smith v UK26

Given the comments of the judges in ex parte Smith, it is perhaps unsurprising that the
claimants had success at the ECtHR. The court disagreed with the UK, holding that there had
been a violation of Article 8 as well as Article 14 (prohibition on discrimination) and Article
13 (right to effective remedy)27. The court clearly discredited the “anxious scrutiny” of the
super-Wednesbury standards, finding it not intense enough to satisfy ECHR standards and
instead they applied more weight to the human rights factors. To do so, they applied a
necessity balancing review, questioning whether the decision had struck a fair balance
between the rights of the homosexual officers and the interest in national security
(VEENA28). Such an inquiry is wholly characteristic within proportionality and largely absent
from unreasonableness. The court was unpersuaded by the UK government’s rationale that
homosexuals in the armed forces would have a detrimental effect on morale thus putting
national security at risk.

Therefore, we again see a distinction between unreasonableness and proportionality, each

test applying different questions. There appears clear advantages in using proportionality
particularly in a human rights context to analyse whether the outcome of a decision was
necessary, requiring a fair balance to have been struck. Yet as ex parte Smith shows,
unreasonableness may also be needed to consider the actual decision making process of the
public body and whether a particular consideration made as a matter of statutory
interpretation is fair. (These latter considerations were used in Wagstaff and Bancoult).
Argument/conclusion:

Academic debate tends to advocate that either proportionality should be a completely new
replacement test (Craig, “Proportionality, Rationality and Review” [2010] New Zealand Law
23
At para what??
24
At para what??
25
At para what??
26
Smith v United Kingdom (33985/96
27
Smith and Grady v United Kingdom (2000) 29 E.H.R.R. 493.
28
Veena
Review 265) or that proportionality and the first limb of Wednesbury (the analysing of the
decision process) should be retained and merged (Daly, A Theory of Deference in
Administrative Law, chapter 5).

However, from this case study and reviewing other relevant case law in this area, it seems
that we cannot deem Wednesbury unreasonableness and proportionality as one
overlapping test. They are both unique in their own rights

There is no counterpart to the consideration in proportionality of necessity, legitimacy and

striking a fair balance within Wednesbury review, especially in a human rights context.
Similarly, there is no counterpart for the consideration of the process of reasoning adopted
by a public body when making a decision seen in Wednesbury under the proportionality
review.

This separation is supported by the fact that the burden of proof varies between the two
standards. For Wednesbury unreasonable, the claimant must show that the decision was an
unreasonable one yet under proportionality, the government must demonstrate that the
measure was proportionate to the legitimate aim sought (VEENA).

Therefore it does not seem like one reviewing standard could be subsumed within the other
as valuable elements of each test would be lost. Furthermore, proportionality is a review
standard founded within EU law. Given that we are now moving away from EU law in the
wake of Brexit there is an argument that perhaps it makes no sense to move entirely to this
European reviewing standard.

Yet there is also no denying that there is a great need for a proportionality test. As Lord
Carnwath commented in Kennedy29: “I remain unpersuaded that domestic judicial review,
even adopting the most flexible view of the developing jurisprudence, can achieve the same
practical effect in a case such as the present as full merits review under…the HRA”.

It may seem sensible therefore to introduce proportionality as a new ground of JR but in

relation to human rights cases only and maintain unreasonableness and a separate, distinct
ground. Whilst this does not clear up the sliding scales of deference within sub and super
Wednesbury, it would certainly clear up the standard needed for cases involving the HRA
and given that the stakes are arguably that much higher/more significant to those involved,
such clarity is needed for these.

What is clear, is that these issues are still going to be continually relevant given the recent
findings of the Faulks inquiry and so, given the judicial and academic debate surrounding
this area, some kind of reform of the reviewing standards is necessary.

29
Kennedy full name - at para. 267