Public Law and Judicial Review

Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in UK cases where issues of European Community law and ECHR is involved, it seems logical that the treatment becomes the standard of substantive review in all cases. A significant criticism of the Wednesbury criteria is that they do not allow for the effect on the life of the individual involved to be judged.

Just because a judgement is not so unreasonable as to be incomprehensible does not mean that it is not disproportionately devastating for the affected individual – for example, when resources are scarce, it may not be irrational for a local authority to discharge their statutory duties under the 1996 Housing Act by offering housing in an area where it is cheap, but the effects on the lives of e. g. a person who has become homeless who is only offered accommodation a long way from good employment prospects, may be enormous.

In such cases, the proportionality test would reveal that a general policy intended to conserve resources would in fact cause the individuals affected to consume more resources. The state and thus administrative decisions enter into so many areas of the lives of individuals that the idea of bifurcation – using proportionality where “fundamental rights” are concerned and the Wednesbury test in all others – is disingenuous at best. In areas such as asylum support or housing, it is immensely complex to distinguish the point at which mere “interests” end and “fundamental rights” begin.

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It is both simpler and more logical to assume the same standard for all issues of judicial review. It is also notable that the Wednesbury test is, by its very nature, a less transparent methodology than proportionality – there are a number of significant cases, such as Wheeler v Leicester City Council, where decisions have been overturned on grounds of irrationality without substantive reasons being given as to why “no reasonable judge could make this decision,” – which must, by its very nature, be on some level subjective.

That is not possible with proportionality, where all aspects must be laid out and considered in turn as a basic fact of the methodology. The Wednesbury test comes under further criticism when we consider the significantly narrow scope for intervention. The case of Short v Poole Corporation (1926) Ch 66 at 90-91 is the well documented example of the red haired teacher dismissed because she had red hair. This case proved that decision makers can act unreasonably and reach the wrong decision but they can't exercise their power so unreasonably that no other body would have reached that decision.

This was an extreme case of unreasonableness where lord Greene's principle could easily be applied however there are a large number of other cases where intervention is not so accessible. Le Sueur (2004) highlights that Wednesbury principle is only appropriate in the most extreme circumstances and does not allow for a varied intricate subject matter. Lord Walker (2007) in the case of R (Pro-life Alliance) v BBC appeal highlighted that the advantage of the Wednesbury test is simplicity.

However, when it comes to human rights - a complex matter - 'a one size fits all' test is nothing short of being unsatisfactory. The Wednesbury principle was adopted in the Australian case Parramatta City Council v Pestell (1972) It was concluded that the court had considered irrelevant matters and not considered matters that it should have. This clearly shows other forms of judicial review being used in conjunction with the Wednesbury approach thus endorsing that Wednesbury alone does not suffice in judicial review.

Proportionality provides a more effective remedy as it allows courts to examine whether the violation of a right was necessary, not just whether it is reasonable. “... it [the courts] has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power” . In all matters of public law a right, formalised by the convention and human rights act has been violated. As Lord Bingham in the case of R(SD) v The Governors of Denbeigh High School[2007] 1 AC 100, para 30 “... t is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting” In Smith ;amp; Grady when “applying the conventional Wednesbury principles of judicial review (adapted to a human rights context) the judge found that, although the justifications may have seemed to many to be unconvincing, the policy was not “outrageous in its defiance of logic” and, accordingly, not unlawful. ” However the European Court of Human Rights found it to be in breach of multiple articles of the convention of human rights.

Smith and Grady is an example of how many claimants now rely on both domestic law and HRA grounds of review. A key case in the propagation of proportionality is The House of Lords in R (Daly) v. Secretary of State for the Home Department (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn stated that most cases would be decided in the sameway whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.

The question arises as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions (2001) 2 All ER 929 stated as follows:- “I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.

Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing”. It would seem that as the proportionality test is more frequently applied, when there is violation of human rights, and fundamental freedoms, the Wednesbury test finds itself relegated to matters of a more domestic nature and as such its importance in matters of jurisprudence has diminished.

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