Wednesbury unreasonableness/irrationality
[6.05] Judicial restraint relative to the substantive choices of administrative and other subordinate decision-making bodies is most famously associated with Wednesbury unreasonableness.
The Wednesbury principle, which takes its name from the seminal Wednesbury Corporation case,[1150] entails that the courts should only interfere with disÂcretionary choices that are taken beyond the very outer reaches of a decision-maker’s power. Although the principle no longer enjoys a dominant position in administrative law (see [6.27]-[6.28]), its constitutional logic remains linked to the separation of powers doctrine and the understanding that judicial intervention in substantive choices is permissible solely where â€?a decision is really virtually untenable as the decision of a sensible person’.[1151] In the Wednesbury case, Lord Greene MR thus spoke of judicial intervention as justified where a decision is â€?so unreasonable that no reasonable authority’ could have taken it.[1152] And in the GCHQ case, Lord Diplock equated the Wednesbury threshold to â€?irrationality’ and said that a decision must be â€?so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.[1153][6.06] Wednesbury unreasonableness/irrationality (the terms are interchangeable) is, however, also a multi-faceted principle. For example, while the principle is typically associated with the above formulations that require absurdity or capriciousness, it also has an â€?umbrella’ meaning that is consonant with the overlapping nature of the grounds of review.[1154] The principle has, moreover, long been applied in a context-sensitive way that provides for more or less intensive judicial scrutiny of decisions depending on the nature of the dispute at hand and of the interests affected.[1155] Hence, where a case involves political questions that are regarded as ill suited to the judicial process, the Wednesbury threshold may rise.
Where, on the other hand, a case is concerned with the protection of common law fundamental rights, the threshold for intervention may be lowered (although such cases would now be likely to come under the Human Rights Act 1998; see [6.18]-[6.28]).Wednesbury Unreasonableness: Its �Umbrella’ and �Substantive’ Meanings
[6.07] Wednesbury is used within its umbrella sense when it describes decisions that are unreasonable on grounds of relevancy, improper purpose, or bad faith.[1156] Although these Wednesbury grounds can be examined under the heading of illegality,[1157] they equally speak to the need for statutory power to be exercised reasonably within the more general meaning of that word. For instance, it cannot be said that a decisionÂmaker who has exercised their power for an improper purpose has used the power reasonably; and neither can it be said that there is a reasonable exercise of power where the decision-maker takes irrelevant considerations into account or ignores relevant ones.[1158] While arguments of purpose and/or relevancy may in turn be made with referÂence to â€?substantive Wednesbury’ where the purpose pursued is grossly improper (so as to amount to an abuse of power[1159]) or where there is an egregious failure to take account of a relevant consideration, behaviour that is â€?so unreasonable that no reasonable authority’ could behave in that way is not necessary for â€?umbrella Wednesbury’. A simple failure to observe statutory purposes and the requirements of relevancy will instead suffice, albeit as subject to counter-arguments about the lawfulness of the dominant purpose or consideration.[1160]
[6.08] Where a discretionary choice has been made in a manner consistent with underÂlying statutory purposes and/or the relevancy doctrine, it may alternatively be challenged within the substantive meaning of the Wednesbury principle. The argument that would be made here is, again, that the final substantive choice of the decision-maker is â€?so unreasonable that no reasonable authority’ could have made it.
Although such arguÂments can sometimes be made out in practice,[1161] it is much more usual for them to fail given the difficulties in convincing the court that a decision crosses the Wednesbury threshold.[1162] Substantive Wednesbury, while applied in a context-sensitive manner (see [6.09]-[6.11]), is premised on the understanding that different decision-makers may lawfully arrive at different conclusions and that the courts should therefore not ask what a reasonable decision-maker would do but rather what no reasonable decision-maker could do.[1163] This is widely regarded as a demanding test to satisfy, and the courts have variously described it as â€?notoriously high’ and one that imposes a â€?heavy burden’ on applicants.[1164] Yet, whatever the perceived difficulties associated with the test, it remains linked to the constitutional imperative of judicial self-restraint and the understanding that discretionary powers are to be exercised by those to whom they have been deleÂgated. As Lord Ackner has said:Where Parliament has given to a minister or other person or body a discretion, the court’s jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision.[1165]
Wednesbury Unreasonableness and Context Sensitivity
[6.09] The restraint-based logic of substantive Wednesbury is at its most apparent when decision-makers are taken to have a wide discretion in a matter and/or where a decision is viewed as essentially political in character (see [6.03]). Here, the courts may link the context of the case to the making of �policy’ choices that are ill suited to the judicial process and conclude that the need for restraint is even more pronounced (the term �policy’ in this context denotes a �political’ decision rather than an administrative policy that may guide an authority in the exercise of its discretion[1166]).
For instance, cases involving national security considerations have typically been taken to demand judicial self-restraint,[1167] and so too have cases concerned with aspects of national or regional economic policy.[1168] Although the courts have here stated that the political decisionÂmaking process does not lie wholly beyond judicial control,[1169] they have noted that they should demonstrate full caution before intervening. Hence the courts sometimes refer in such cases to the related standard of â€?soft-edged’ review that entails â€?that the court should in such circumstances be somewhat more ready than in some other cases to assume a higher degree of knowledge and expertise on the part of the decider’.[1170][6.10] On the other hand, the Wednesbury threshold can be lowered to provide for â€?closer look’ review where a case is concerned with an individual’s common law funÂdamental rights. These are rights that the courts developed with particular vigour prior to the coming into force of the Human Rights Act 1998 and which include the right to life,[1171] access to a court,[1172] and freedom of expression.[1173] Modification of Wednesbury here has usually been associated with the test of â€?anxious scrutiny’[1174] whereby the courts are more demanding of the justification for decisions that impact on an individual’s fundamental rights at common law[1175] (the courts will also be more exacting in their scrutiny of, for instance, matters of precedent fact;[1176] related approaches to the interÂpretation of legislation may likewise seek to safeguard common law rights[1177]). In terms of discretion, the corresponding rationale is simply that the range of options open to a reasonable decision-maker should be curtailed when its decision has, or would have, implications for, at one end of the spectrum, the right to life and, at the other end, freedom of expression.
While some cases may still raise difficult questions as to the appropriate level of review—for instance, disputes about the allocation of medical resources and the common law right to life[1178]—the courts will thus examine decisions that impact upon common law fundamental rights more closely and require a correÂspondingly fuller justification the greater the interference with the right.[1179] It is in this way that the Wednesbury threshold moves downwards, making it easier for applicants to succeed.[6.11] Most cases concerning fundamental rights will now be heard under the Human Rights Act 1998, although parallel arguments may still be made with reference to common law fundamental rights.[1180] This has led to the argument that there is no further need for the modified Wednesbury principle as the courts are required, under the Act, to give effect to the European proportionality principle that is said to demand a more structured and consistent standard of review than its Wednesbury comparator (see [6.27]). Wednesbury has, however, yet to â€?receive its quietus’[1181] and it can for that reason be said that the authorities on â€?anxious scrutiny’ remain of some relevance. Those same authorities are also of note insofar as they, together with the authorities on â€?policy’ choices ([6.09]), illustrate the more general point about the context-sensitive nature of Wednesbury and other common law principles.