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Wednesbury vs Proportionality – Rule of law in a common law renaissance

A post by William Wong


Introduction

Judicial review is a potent tool to uphold the rule of law by limiting arbitrary executive acts. Among the court’s toolkits are the well-known Wednesbury and proportionality tests. This essay argues first that, historically, Wednesbury unreasonableness (a common law invention), and proportionality (a product of ECHR jurisprudence) are conceptually different, with application in different contexts. Secondly, that however the law has developed to a state where the two tests appear to merge and overlap, and the reason driving such a change. Thirdly, this is a laudable trend, heightened in Kennedy v The Charity Commission  with a return to common-law constitutionalism and a contextual approach. Overall, this essay criticizes the conception that a clear demarcation between the two labels should be made. Instead, substantive review is to be conducted on a spectrum of intensity depending on the subject-matter.


I.    Traditional understanding and differences

As Lord Diplock remarked in his classic statement in the GCHQ case , back in the 1980s ‘proportionality’ was viewed as a novel invention under European influence (it is the approach required under the ECHR for dealing with the ‘qualified rights’). A proportionality analysis asks for four elements: 1) Sufficiently important legislative objective in limiting a right; 2) rational connection; 3) minimal impairment; 4) fair balance between rights and community interests.  Unlike the structured, nuanced and intensive nature of proportionality, Wednesbury unreasonableness is restrictive, aiming at avoiding judicial intervention: “if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.”


Two differences can be drawn at this point. First, Wednesbury is arguably more consistent with separation of powers as it allows a greater level of deference to the executive or legislative in matters where the judiciary lacks institutional competence on general administrative decisions; while proportionality tends less to defer.  For example in Coughlan  the court found itself ill-suited to evaluate on the strict Wednesbury standard the health authority’s decision to close the Mardon House for better allocation of resources. Secondly, in terms of function, proportionality test is designed to determine the justification interfering with a protected right (where HRA or EU law is in play). Wednesbury, in its purest form was clearly conceived as being limited to the exceptional class of cases where the public authority had obviously stepped outside the permissible range of decisions. On this understanding, it is an extension of the illegality ground. Up to 1997, the demarcation is still clear as indicated by Laws J in the First City Trading that "Wednesbury and European review are two different models - one looser, one tighter".


II.    Overlapping considerations

Soon, judges realize it is dangerous to over-rely on the simplistic view that Wednesbury is a monolithic truism that imposes a rigid and high threshold, as evidenced from the plethora of expressions such as ‘super-Wednesbury’ and ‘anxious scrutiny’, bearing greater and greater resemblance with the proportionality test. First, ‘rational connection’, limb two of the orthodox proportionality test, was unequivocally adopted in a Wednesbury sense in Association of British Civilian Internees v Secretary of State for Defence  per Dyson LJ, “just as in satisfying the requirements of proportionality, so too in meeting the Wednesbury test the measures designed to further the objective must be rationally connected to it.” Second, limb three, “minimal impairment’, meaning that a less restrictive alternative should be adopted is also frequently applied to cases on Wednesbury analysis. In Hall and Co v Shoreham-by-Sea UDC   planning conditions were struck down where a less onerous condition is available. These can be explained on the basis of a growing realization is that where the decision is concerned with an important right, the level of scrutiny is heightened.


Weighting and balancing exercise

The most obvious common point is the engagement in a weighting exercise. As Professor Paul Craig has shown , both tests involve considerations of weight and balance, with varying degree of intensity of scrutiny. This is apparent in Tesco Stores v Dundee City Council  that concerned whether the promise of funding for a link road is a material consideration for the purposes of a planning permission. Lord Keith held that the weight of the consideration was within the discretion of the primary decision-maker. Although proportionality was impliedly considered, it was stated expressly that this was a reasonableness review.

A criticism of this theory is launched by Lord Steyn in Daly , even if weight/balancing is undertaken in Wednesbury review it is nonetheless distinguishable from proportionality, which is more far-reaching because it requires assessing the balance struck by the decision-maker, not merely whether it was within the range of reasonable decisions. It is submitted that this is an outdated view incongruent with judicial reality. Properly understood, proportionality test now entails a culture of justification:  courts are now more willing to probe the evidence of various restrictions on rights and interests; not shy of holding that the lack of robust evidence justifying the measure rendered it disproportionate. Still, this is not engaging a merit test – just require more fulsome justification. This is exactly a crucial focal point of unreasonableness analysis.


III.    Renaissance of common-law constitutionalism and wider applicability of proportionality

What explains the dramatic switch in attitude and the relaxation of Wednesbury unreasonableness? The core reason can be attributed to the tautologous and circular definition offered by Lord Greene. It is fundamentally unclear as to what standard is the decision to be measured against. The ‘reasonable authority’ is a pure legal fiction of limited assistance, promoting judges to devise more nuanced approaches by borrowing elements from the European concept. Further, when viewed in a broader socio-legal context, the judicial restraint in Wednesbury indicates judges’ awareness of the growing legitimacy of a democratic government vis-à-vis their lack of public mandate.  What led to the merge of the test concepts is a greater willingness to endorse a higher order of rights since the 1960s, when a series of decisions by some judicially active judges (e.g. Lord Reid and Lord Denning) exhibited greater willingness to hold the executive to account.


A doctrinal insistence of this a division of labour for the two tests is overtly mechanical, diverting the court’s attention to the futile exercise of selecting a seemingly more ‘appropriate’ label. The long-awaited clarification finally comes with Kennedy. Lord Mance was at pains to pinpoint that “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.” The nature of judicial review is heavily context-specific. In a modern state the administrative machine is faced with a huge variety of public tasks. It is inherently dangerous to hold various public bodies and departments to a single standard. In light of this, to a certain extent Lord Mance advocates for the reception into purely domestic cases (those lacking an EU or ECHR/HRA dimension) of the proportionality test. This has the effect of creating a spectrum of intensity of ‘substantive review’. While this signifies a greater level of proactiveness in an increasingly “right-conscious” and liberal supreme court, it shall be noted that Lord Carnwath (dissenting) sounded a note of caution that the foundation of Lord Mance’s reasoning is dubious, and that the extent of domestic application of proportionality is still ‘uncertain’.


Nonetheless, it is ultimately unsatisfactory to demarcate the respective provinces of proportionality and Wednesbury by reference to formalistic benchmarks such as whether the HRA (or EU law) is involved. As Lord Mance in Kennedy indicates, what is required is a meaningful, tailor-made analysis that engages with the constitutional tenets implicated. In light of the excessive reliance on Convention rights, reverting to common law rights, legal constitutionalism and the judicial conception of the rule of law as the starting point means that the court is now finally drawing a unifying thread between common law unreasonableness and proportionality. All that remains now is a formal burial rite for the redundant ‘Wednesbury’ label.


References:

[1] [2015] 1 AC 455

[2] [1985] AC 374

[3] R (Quila) v SSHD [2012] 1 AC 621

[4] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB

[5] Wade and Forsyth, Administrative Law (11th edn, Oxford 2014)

[6] R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213

[7]  [1997] 1 CMLR 250

[8] [2003] QB 1397

[9] [1964] 1 WLR 240

[10] Paul Craig, “The Nature of Reasonableness” (2013) 66 CLP 131

[11] [2012] PTSR 983

[12] [2001] 2 AC 532

[13] Woolf et al., de Smith’s Judicial Review (7th edn, Sweet & Maxwell, 2013)

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