Wednesbury in Proportion – Beyond mere reasonableness

Most actors fear being ‘type-cast’. In other words, being so identified with a particular character or type that the performer is continually allocated similar parts. For thespians frequently perceive their craft to lie in their chameleon-like ability to ‘become’ different people in different productions. A vintage example is Alec Guinness in the 1949 film, Kind Hearts and Coronets.There he plays all eight members of the D’Ascoyne family (relatives of the protagonist, Louis Mazzini) who stand between Mazzini and the Dukedom of Chalfont and whom he therefore decides to ‘remove’.

But typecasting can also afflict the rather different world of public law. For although the seminal 1947 case of Wednesbury (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 223) is really an early expression of the principles for properly exercising public authority statutory discretion, in the minds of many it has unfortunately been typecast by the misleading abbreviation, ‘Wednesbury reasonableness’, bringing to mind the absurd ‘example of the red-haired teacher, dismissed because she had red hair’.So it is worth reminding ourselves of the breadth of the Wednesbury principles before briefly considering some aspects of the modern concept of proportionality.

Wednesbury

Lord Greene (with whom his colleague judges Somervell L.J. and Singleton J.agreed) distinguished the roles of the court and the executive. He said that the courts ‘can only interfere with an act of executive authority if it be shown that the authority has contravened the law’. For when:

‘…an executive discretion is entrusted by Parliament to a body such as the local authority…what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case.’

Lord Greene therefore highlighted various key principles underpinning the proper exercise of public authority statutory discretion. These include the following:

1. Court not an appellate authority. The power of the court to interfere is as a judicial authority concerned only ‘to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.’
2. Court must not substitute itself for the authority.The Courts ‘can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition… the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good’.
3. There must be a real exercise of discretion. For if ‘in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters’. On the other hand, ‘if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.’
4. Wednesbury encompasses fundamental public law principles i.e. various issues broadly encompassing the modern concepts of abuse of power and the need for focus on proper statutory requirements and purpose which Lord Greene thought might be broadly classifiable under a single head, e.g. ‘Bad faith, dishonesty – those of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that…’ which can’overlap to a very great extent’.
5. Discretion must be exercised reasonably. Lord Greene noted that (even back in 1947!) lawyers ‘often use the word ‘unreasonable’ in a rather comprehensive sense. So a ‘person entrusted with a discretion must direct himself properly in law, calling his attention to the matters which he is bound to consider and excluding from his consideration matters which are irrelevant to what he has to consider. Failure to obey these rules may be said to be acting unreasonably. However, at the extreme end, there may arise’something so absurd that no sensible person could ever dream that it la within the powers of the authority’. This would no doubt contravene various public law principles. However, ‘to prove a case of that kind would require something overwhelming’.

So Wednesbury underlines that discretion lawfully vested in a particular body is a matter for that body and not for the courts whose fundamental role is to ensure compliance with the law. But whilst discretion should be exercised properly within its scope, there can also be scope for judicial intervention in a decision within the proper competence of a public authority if it is ‘so unreasonable that no reasonable authority could ever have come to it’.

The court’s duty, therefore, is to regulate, without interfering with, the exercise of public authority statutory discretion (i.e. decisions are for the proper decision maker and not for the court). However, even before the Human Rights Act 1998, the application of Wednesbury reasonableness (as indicated,effectively shorthand for relevant public law considerations) was flexible and context sensitive in its intensity of review. As Lord Bridge indicated in R. vSecretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514where fundamental human rights are concerned (in that case the right to life)the basis of the administrative decision under challenge requires ‘the most anxious scrutiny’.

Proportionality

However, despite the flexibility of Wednesbury, where qualified rights [1] are engaged under the European Convention on Human Rights (and the domestic formulation in the Human Rights Act 1998), it is necessary for the courts to apply a test known as ‘proportionality’. As the European Court of Justice indicated in R vMinister of Agriculture, Fisheries and Food and the Secretary of State for Health, ex parte Fedesa Case C-331/88:

‘By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’

So Lord Clyde (in his classic formulation) pointed out in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC69, that in determining whether a measure has been applied arbitrarily or excessively, a court should ask itself: whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

Lord Sumption in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 summarised what he then considered to be the current position on proportionality in the light of the caselaw to date. In his view:

‘… the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii)whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.’

However, as per the classic role of judicial review where, although the review may be close and intense: ‘None of this means that the court is to take over the function of the decision-maker’

Lord Reed, also in the Bank Mellat case took a similar view on this aspect,indicating that although ‘assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon’,this does not ‘entitle the courts simply to substitute their own assessment for that of the decision-maker’. He also said that: ‘The intensity of review varies considerably according to the right in issue and the context in which the question arises’.

Lord Reed also highlighted the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103as providing ‘the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning’. This is that it is necessary to determine:

‘(1)whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective,and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

Although Lord Reed said that he had ‘formulated the fourth criterion in greater detail than Lord Sumption’ he saw ‘no difference of substance’. For in essence, step four assesses ‘whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure’.

But whilst the courts are still routinely referring to Wednesbury reasonableness (a Lexis search for Wednesbury in senior court decisions from October 2014 to October 2015 yielding 448 entries) some influential voices are suggesting that proportionality may be a more useful general test i.e. also in cases not involving Convention rights.

So Lord Mance in Kennedy v Charity Commission [2014] UKSC 20 said that the advantage of proportionality terminology ‘is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages’. In his view there ‘seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law’. But whatever ‘the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context’. For in ‘the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved.’

In Lord Mance’s view, the ‘common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle’. For the ‘nature of judicial review in every case depends upon the context’

And in Pham v Secretary of State for the Home Department [2015] UKSC 19 Lord Mance summed up the nature of proportionality as framed by ‘Professor Dr Lübbe-Wolff (former judge of the Bundesverfassungsgericht which originated the term’s modern use) as ‘a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction. And this seems to return us to the broad concept of reasonableness as outlined by Lord Greene back in the dark November days of 1947!

Comment

As indicated, Wednesbury is much wider in its scope than might be suggested by the shorthand reference of ‘reasonableness’. However, it is clearly important that the lawfulness of the exercise of public authority statutory discretion is appropriately analysed and reviewed in the light of all its facts and circumstances and with such intensity as the circumstances dictate. For as Lord Steyn famously pointed out in in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 ‘in law context is everything’.

But although weighing decisions on the proportionality balance will always be necessary where material Convention rights are engaged, in other cases the structural formality highlighted by Lord Mance in Kennedy may sometimes prove less flexible than a broad Wednesbury review can afford. For arguably Wednesbury now connotes the spectrum of public law principles (informed and enhanced as necessary by proportionality) which have been extensively developed and matured by the courts since those sombre foggy days of November 1947.

[1]Those than can be interfered with if specified conditions are met.
[2]Nicholas Dobson is a Consultant with Freeths LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government.

This article was first published in New Law Journal on 27 November 2015.

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