Administrative Law

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI RESEARCH PAPER ON

WEDNESBURY UNREASONABLENESS

SUBMITTED BY – SUBHASHNI KUMARI

SUBMITTED TO – MR. JAGDISH

JENA SEMESTER – V, SECTION - A ROLL NO. - 778

ASSISTANT PROFESSOR ADMINISTRATIVE LAW

WEDNESBURY UNREASONABLENESS INTRODUCTION: The Doctrine of judicial Review has been developed through different courts of different countries. It’s origins can be traced back to UK which has no written constitution, but, it was firmly established by the country with written constitution, i.e. USA. In the historic and famous case of Marbury v. Madison1, the Supreme Court of America made it clears that Court has the power of Judicial Review. It found wide application only in the later periods of the 20 th Century, when in the aftermath of the World War II, democracy came to be the governing political principle in most parts of the world. However, the Doctrine reached its culmination to the Indian Constitution when the Supreme Court of India bestowed on judicial Review the widest gamut and amplitude in the case of Keshvanand Bharti v. State of Kerela.2 CHAPTER 1: JUDICIAL REVIEW IN ADMINISTRATIVE ACTION: The growth of modern welfare state coupled with the technological advances has resulted in the legislature not only leaving wide areas of discretion to the administrative authority but also even delegating many of its powers and functions. This has resulted in the modern day bureaucrat becoming extremely powerful. This often leads to misuse of discretion vested in him there by requiring frequent judicial intervention. However this intervention should not result in the judiciary encroaching into areas reserved for the executive. Consequently, the scope and ambit of judicial review must be limited to the extent just necessary to prevent the abuse of the discretion conferred on the executive. Since then the scope and ambit of judicial review has been one of the central themes of discussion in reviewing Administrative Action. Administrative Action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on Subjective satisfaction where decision is based on policy and expediency. It does not decide a right though it may affect the right of an individual. However, it 1 2

5 US 137 (1803). (1973) 4 SCC 225).

does not mean that the principles of natural justice can be ignored completely when the authority is exercising “Administrative Powers”. Previously, where a body was awarded subjectively worded powers, the courts used to adopt ‘hands-off’ approach, as they were reluctant in intervening those administrative actions. 3 However, in the changed circumstances of socio-economic development in the country, the Court is emphasisng ‘Self-Restraint’. Unless, the administrative action is violative of law or the Constitution or is arbitrary or malafide, Courts should not interfere in administrative decisions. Movin in this direction, the Apex Court in Sidheswar Sahakari Sakhar Karkhana Ltd.v. Union of India4, was of the opinion that normally the court should not interfere in policy matter which is within the purview of the government unless it is shown to be contrary to law or inconsistent with the provisions of the Constitution. However, some control over decisions that were within the four corners of the public body’s power was, however, felt to be warranted and legitimate. Lord Templeman5 expressed his view that: where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process. This unequivocal recognition of the need for stricter scrutiny of administrative discretion where fundamental human rights are at stake, and of the need to protect those rights, has great potential significance for the development of public law.6 To achieve the limiting function of judicial review, common law systems and civil law systems reacted differently and developed different processes. In common law jurisdictions the concept of secondary review was developed to achieve this limiting function of judicial review. 7Under the concept of secondary review the courts would strike down administrative orders only if it suffers the vice of wednesbury unreasonableness8 which means that the order must be so absurd Liversidge v. Anderson, [1942] AC 206. http://www.legalservicesindia.com/article/1581/Judicial-Review-of-Administrative-Actions-in-India.html 5 Jeffrey Jowell, “Beyond Wednesbury: substantive principles of administrative law”, Commonwealth Law Bulletin, April 1988, pp. 858 6 R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74, pp. 110-111. 7 Ajoy P.B., “Administrative Action and the Doctrine of Proportionality in India”, IOSR Journal of Humanities and Social Science (JHSS), ISSN: 2279-0837, ISBN: 2279-0845. Volume 1, Issue 6 (Sep-Oct. 2012), PP 16-23, www.iosrjournals.org . 8 Picture House v. Wednesbury Corporation (1947) 2 All ER 74 (CA). 3 4

that no sensible person could ever dream that it lay within the powers of the administrative authority. The civil law jurisdictions on the other hand developed the concept of proportionality based review (primary review) which is a much more intensive form of judicial review. The principle of proportionality ordains that the administrative measure must not be more drastic than is necessary for attaining the desired result.9 CHAPTER 2: THE BIRTH OF WEDNESBURY PRINCIPLE Earlier, the judiciary took ‘hands-off’ approach while interfering with the administrative decision. However, some control over decisions that were within the four corners of the public body’s power was, however, felt to be warranted and legitimate. Associational Provisional Bank Houses v. Wednesbury Corporation10, was the case that marked the occasion when the basic principles of unreasonableness were reaffirmed and elaborated. In his judgment, Lord Greene had to go on to consider the extent of the court’s power to intervene. In doing so, he provided the test for unreasonableness, which stated that whether an authority had acted, or reached a decision, in a manner “so unreasonable that no reasonable authority could ever have come to it”. It was outside the four corners of the power that parliament had given to the decision maker and it was therefore right and proper for the courts to step in. There are number of cases where the concept of unreasonableness was used as a ground of Judicial Review.11 However, the test of unreasonableness has always been difficult to pin down because it is such a subjective concept and opinions can obviously vary widely on whether a particular decision is reasonable or not. Also the courts have adopted the view that the test of unreasonableness does not provide sufficient protection for convention rights. In the build up to the incorporation of the European Convention of Human rights (ECHR), the domestic courts began to develop a more rigorous application of the test for unreasonableness, in those cases touching upon the fundamental rights of the citizen.

Justice Anand Byrareddy, Proportionality vis-à-vis irrationality in administrative law (2008) 7 SCC J-29, p.32. [1948] 1 KB 223. 11 Roberts v. Hopwood, (1925] All ER 24; Tameside MBC Bromley LBC v. GLC, [1982] 1 All ER 129; Wheeler v. Leicester CC, HL 25 Jul 1985. 9

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CHAPTER 3: NEW ASPECTS OF SUBSTANTIVE REVIEW: LORD DIPLOCK Lord Diplock in the case of Council of Civil Service Unions. v. Minister for the Civil Service12 , laid down the broad contours of the external structure of judicial review as: “illegality”, “irrationality” and “procedural impropriety”. This tripartite classification demarcates judicial review’s external structure. Lord Diplock has himself very neatly defined all the three structures within his classification – namely Illegality, irrationality and procedural impropriety but it is the concept of irrationality that is of importance in this work. The first way in which courts challenge the substance of official decisions is through review on the ground of what Lord Diplock referred to as "illegality". This ground involves the courts in insisting that public bodies keep within the scope of their powers. 13 Lord Diplock defined irrationality as applying to "a decision which is 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." 14 Lord Diplock's separation of illegality from irrationality thus usefully distinguishes two grounds of substantive review. The first, illegality, is concerned with the infidelity of an official action to a statutory purpose, usually involving taking into account considerations that are irrelevant to that statute's purpose, or failing to take into account considerations that are relevant. The second, "irrational" decision is independent of statutory purpose. CHAPTER 3 (A) : IRRATIONALITY AND WEDNESBURY UNREASONABLENESS While defining irrationality Lord Diplock equated it with “wednesbury unreasonableness”. Lord Diplock beautifully sums up “wednesbury Unreasonableness” as a principle that applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it. 15 The 3 WLR 1174. Jeffrey Jowell, “Beyond Wednesbury: substantive principles of administrative law”, Commonwealth Law Bulletin, April 1988, pp. 859 14 GCHQ case, at pp. 410-411. 15 Ajoy P.B., “Administrative Action and the Doctrine of Proportionality in India”, IOSR Journal of Humanities and Social Science (JHSS), ISSN: 2279-0837, ISBN: 2279-0845. Volume 1, Issue 6 (Sep-Oct. 2012), PP 16-23, www.iosrjournals.org . 12 13

important point is that he suggested that it could stand on its own as an accepted ground of review, and so become a genuine extension of the ultra vires principle. However, it was criticised by Walkers’ Excellent Critic 1995, as in his redefinition his Lordship emphasised not only illogicality but also immorality. However, there is some doubt as to whether Wednesbury unreasonableness and irrationality indeed are the same thing. For example, Ex p Handscomb, where it was considered whether a decision could be challengeable on grounds of both irrationality and Wednesbury unreasonableness. Nevertheless, despite some doubts about the superiority of the term ‘irrationality’ as a ground of review over Wednesbury unreasonableness, it is for sure that the later on falls far below the standard that public bodies are expected to display.16 CHAPTER 4: WEDNESBURY PRINCIPLE: AN OBSOLETE? This principle has been scathingly berated throughout the world. The main criticism was the concept of wednesbury unreasonableness is extremely vague and is not capable of objective evaluation. Hence wednesbury unreasonableness cannot be defined in the form of standard tests for universal application. Because of the following reasons this principle has been declared as historic principle with no contemporary worth.  Wednesbury is inadequate. The incantation of the word "unreasonable" simply does not provide sufficient justification for judicial intervention. Intellectual honesty requires a further and better explanation as to why the act is unreasonable. The reluctance to articulate a principled justification naturally encourages suspicion that prejudice or policy considerations may be hiding underneath Wednesbury's ample cloak.17  Wednesbury is tautological One of the difficulties with the Wednesbury test is its tautological definition, because it defines the negative term unreasonableness by both a negative and positive reference to itself: an unreasonable decision is ‘‘so unreasonable that no reasonable body should so act, which further fails to guide us with any degree of certitude. 18Lord Greene did attempt to provide a list of 16

G. L. PEIRIS, “Wednesbury Unreasonableness: The Expanding Canvas”, Cambridge Law Journal, 46(I), March 1987, pp. 53-82 17 Ibid. 18 R. v IRC Ex p. Taylor (No.2) [1989] 3 All E.R. 353 at 357.

administrative sins which he thought were covered by his notion of unreasonableness, all of which he considered to ‘‘overlap to a very great extent’’ and ‘‘run into one another’’. 19 These included: bad faith, dishonesty, attention given to extraneous circumstances, disregard of public policy, wrong attention given to irrelevant considerations, and failure to take into account matters which are bound to be considered. Some of these instances are today more appropriately considered as instances of illegality rather than unreasonableness, because they are extraneous to the objects or purposes of the statute under which the power is being exercised, thus taking the decision outside the ‘‘four corners’’ of the governing statute.  Wednesbury associated with extreme behaviour Apart from its vagueness, the Wednesbury formulation has been challenged in recent years for the reason that it depicts ‘‘unreasonableness’’ as particularly extreme behaviour, such as acting in bad faith, or a decision which is ‘‘perverse’’,20 or ‘‘absurd’’—implying that the decisionmaker has ‘‘taken leave of his senses’’.21 In the GCHQ case,22in the famous passage where he formulated the ‘‘grounds’’ of judicial review, Lord Diplock preferred to use the term ‘‘irrational’’, which he described as applying 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’’. 23In addition, as has been pointed out, the term irrationality has the drawback that it casts doubt on the mental capacity of the decisionmaker,63 whereas many decisions which fall foul of this ground of review have been coldly rational. Lord Cooke opined that Wednesbury was ‘‘an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation’’.24  Wednesbury unreasonableness is unrealistic. Attempting as it does to avoid judicial intervention in the merits of decisions assigned to officials, it seeks to prevent review except in cases where the official has behaved absurdly or has "taken leave of his senses".' In practice, however, the courts are willing to impugn decisions Wednesbury [1948] 1 K.B. 223 at 229. Pulhofer v Hillingdon LBC [1986] A.C. 484 at 518. 21 R. v Secretary of State for the Environment Ex p. Notts CC [1986] A.C. 240 at 247–248. 22 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374. 23 [1985] A.C. 374 at 410; cf. Luby v Newcastle-under-Lyme Corp [1964] 2 Q.B. 64 at 72. 24 R. v Secretary of State for the Home Department Ex p. Daly [2001] UKHL 26; [2001] 2 A.C. 532 at [32]. 19 20

that are far from absurd and are indeed often coldly rational. Were the courts only to interfere with decisions verging on the insane, a zone of immunity would be drawn around many oppressive or improper decisions that are in reality vulnerable to judicial review. And public authorities which had taken leave of their senses could use the language of rationality to circumvent judicial review. These problem in Wednesbury principle lead to the development of another principle i.e. Doctrine of Proportionality. The other reasons why proportionality is likely to emerge as an independent head of review is in cases where the allegations is that is the punishment or penalty which is disproportionate to the offence committed and is a consequence of the changing judicial attitudes to fundamental rights. CHAPTER 5: PROPORTIONALITY PRINCIPLE: ALTERNATIVE OF WEDNESBURY PRINCIPLE? The classical definition of proportionality has been given by none other than Lord Diplock when his Lordship rather ponderously stated “you must not use a steam hammer to crack a nut if a nut cracker would do”25 Thus proportionality broadly requires that government action must be no more intrusive than is necessary to meet an important public purpose 26. Under the doctrine, courts are typically required to assess whether, firstly, the restriction on the right is rationally connected to a given objective, which must be authorised by law, secondly, it is no more than is necessary to obtain the objective and finally, the objective is sufficiently important to justify limits to a fundamental right.  However the greatest advantage of proportionality as a tool of judicial review is its ability to provide objective criteria for analysis. It is possible to apply this doctrine to the facts of a case through the use of various tests. According to De Smith, Woolf and Jowell on Judicial Review of Administrative Action 27, there are three principal formulations by which proportionality is tested. The principle of proportionality evaluates two aspects of a decision: (1) Whether the relative merits of differing objectives or interests were appropriately weighed or "fairly balanced"?

R v. Goldsmith (1983) 1 WLR 151, p. 155 John Adler, General Principles of Constitutional and Administrative law, (4th ed., 2002) p. 368. 27 5th Edn. (1995), Sweet and Maxwell at pp. 595-96. 25 26

(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an unnecessary burden on affected persons?28 The doctrine struggled a lot to come into the view, as the domestic courts always used to refuse proportionality as a free standing ground of JR [ex p Brind], but it received its most significant recognition in English administrative law, when Lord Diplock in GCHQ upheld the potential importance of proportionality.29 Lord Diplock even while giving the tripartite classification admits that proportionality in the future would be an additional ground of review. However, today most authors accept proportionality as an additional head of judicial review within the concept of irrationality 30. Thus proportionality and wednesbury unreasonableness is seen as the two aspects of irrationality. CHAPTER 6: COMPARATIVE ANALYSIS CANADA: The Supreme Court of Canada has commensurate the principle of Proportionality as a mechanism for assessing and evaluation Charter Rights.31 But, the common law grounds of judicial review and much of the legislative codification of the grounds of review continue to be expressed in terms of the traditional common law grounds: a decision based on a complete lack of evidence, and the usual abuse of discretion grounds: bad faith, taking account of irrelevant factors, failure to take account of relevant factors, acting for an improper purpose, unlawful fettering of discretion, acting under dictation, and, occasionally, Wednesbury unreasonableness. Wednesbury unreasonableness has been subsumed by the term patent unreasonableness when that is the chosen standard of review. The Supreme Court has shown no disposition to move with the courts of England and Wales and to adopt or adapt other grounds of review such as proportionality, substantive legitimate expectation, and inconsistency. NEW ZEALAND: Ibid. at p. 598. G. L. PEIRIS, “Wednesbury Unreasonableness: The Expanding Canvas”, Cambridge Law Journal, 46(I), March 1987, pp. 53-82 30 Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374. 31 Legislative Standards Act 1992 (Qld). 28

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Proportionality is a central element in deciding the reasonable limits of right under the New Zealand Bill of Rights Act 1990 (BORA). The doctrine requires that the legislative measures designed to give effect to certain objectives must be rationally connected to those objectives and impair rights no more than is necessary to accomplish the objectives. In New Zealand proportionality is known as the Oakes test, it having been having imported from Canada32 and modified subsequently.33It is assumed that any challenge to the exercise of administrative power on the ground that it unreasonably limits rights in the BORA will go through the three or four steps in this proportionality analysis.34 New Zealand has yet to embrace the doctrine of proportionality and so far have stuck with Wednesbury unreasonableness. SOUTH AFRICA: The South African Constitution 1996, Sec.33 enshrines the notion of ‘‘just administrative action’’, which is defined as administrative action which is ‘‘lawful, reasonable and procedurally fair’’. It required a statute to fill in the detail of those requirements, and in 2000 Parliament enacted the Promotion of Administrative Justice Act (PAJA).35 The PAJA sets out a comprehensive list of grounds of judicial review, one of which is the Wednesbury formulation. PAJA s.6(2)(h) reads: ‘‘A court or tribunal has the power to judicially review an administrative action if the exercise of the power or the performance of the function authorized by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function’’. CHAPTER 7: CONCLUSION It is patently clear that at the international level wednesbury unreasonableness is on a terminal decline. It is fast being replaced by the doctrine of proportionality which is a much more intense form of review which seeks to see whether the decision maker has properly balanced the various factors that he has to take into consideration before rendering a decision.

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Ministry of Transport v Noort [1992] 3 N.Z.L.R. 260 at 283, CA (Richardson J.). Moonen v Film & Literature Board of Review [2000] 2 N.Z.L.R. 9 CA. 34 P. Rishworth, G. Huscroft, S. Optican and R. Mahoney, The New Zealand Bill of Rights (2003), pp.176–186. 35 https://www.unece.org/fileadmin/DAM/env/pp/compliance/C201164/Communication/Annex26_ch11_DeSmithSubstantiveReview_Justification.pdf 33

In the Indian context it is amply clear that even though proportionality was made part of the Indian law as early as 2000, there is hardly any significant use of doctrine in India. Not only has the doctrine as adopted by the Supreme Court, limited application, but even within that applicable range, it has hardly been used. However sooner or later courts in India will have to actively consider implementing the doctrine of proportionality in all cases coming before it irrespective of whether fundamental or ordinary rights of citizens / persons are involved. This is because of the fact that human rights jurisprudence that has come to dominate the legal system includes not just fundamental rights but other rights also. Hence the urgency of adopting the doctrine of proportionality cannot be overlooked for otherwise steam hammers would increasingly be used to crack nuts even if nut crackers are sufficient. REFERENCES  JEFFREY JOWELL, Beyond Wednesbury: substantive principles of administrative law, Commonwealth Law Bulletin, April 1988, pp. 858 

AJOY P.B., Administrative Action and the Doctrine of Proportionality in India, IOSR Journal of Humanities and Social Science (JHSS), (2012) 1 6 ISBN: 2279-0845, pp.1623, www.iosrjournals.org .

 JUSTICE ANAND BYRAREDDY, Proportionality vis-à-vis irrationality in administrative law (2008) 7 SCC J-29, p.32.  G. L. PEIRIS, Wednesbury Unreasonableness: The Expanding Canvas, Cambridge Law Journal, 46(I), March 1987, pp. 53-82  JOHN ADLER, General Principles of Constitutional and Administrative law, (4th ed., 2002) p. 368.  P. RISHWORTH, G. HUSCROFT, S. OPTICAN

AND

R. MAHONEY , The New Zealand Bill of

Rights, (2003), pp.176–186. 

https://www.unece.org/fileadmin/DAM/env/pp/compliance/C201164/Communication/An nex26_ch11_DeSmith-SubstantiveReview_Justification.pdf