Introduction
Judicial review, a fundamental part of administrative law, enables courts to scrutinize the legality of governmental decisions. Two prominent standards of review used in this process are Wednesbury unreasonableness and proportionality. Wednesbury unreasonableness, derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, traditionally represented a high threshold for intervention, requiring decisions to be so unreasonable that no reasonable authority could have arrived at them. Proportionality, originating in European Union law and increasingly influential in domestic jurisprudence, calls for a more structured and balanced evaluation of the relationship between the objective pursued by a decision and the methods used to reach it. This article examines the main differences between these two standards, looking at their application and consequences within the context of judicial review.
Wednesbury Unreasonableness: A High Threshold
The Wednesbury standard sets a deliberately high bar for judicial involvement. A decision is deemed unreasonable only if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have reached it. This approach emphasizes judicial deference to administrative judgment, recognizing the knowledge and democratic legitimacy of decision-makers. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) clarified this standard, introducing the idea of "irrationality" as the same as Wednesbury unreasonableness. The House of Lords held that a decision could be found irrational if it was so flawed in reasoning or factual basis that it could not be justified.
Proportionality: A Balancing Act
Proportionality, in contrast, requires a more careful and structured assessment of administrative decisions. It involves a four-stage inquiry:
- Legitimate Aim: The objective pursued by the decision must be proper and lawful.
- Rational Connection: There must be a rational link between the methods used and the goal intended.
- Necessity: The measure must be needed to achieve the objective, meaning no less restrictive alternative exists.
- Balancing (Strict Proportionality): The benefits of meeting the objective must exceed the burdens imposed by the measure.
This framework, established in cases like R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, encourages a more detailed judicial review than Wednesbury unreasonableness, requiring a clear explanation for the interference with individual rights.
Distinguishing Wednesbury and Proportionality: A Practical View
The main difference between the two standards is the extent of judicial scrutiny. Wednesbury unreasonableness demands a plainly absurd decision, while proportionality calls for a balanced look at the relationship between the goal and the method. As an example, suppose a local authority deciding to ban all public gatherings in a park because of noise complaints. Under Wednesbury, the ban might stand unless it was obviously disproportionate to the issue, such as a total ban forced by a single minor incident. Under proportionality, the court would assess the legitimacy of the purpose (noise reduction), the rational link between the ban and that purpose, the need for a complete ban (could a lesser approach like limited hours work?), and whether the advantages of quiet outweigh the impact on public assembly.
The Influence of Human Rights Law
The introduction of the European Convention on Human Rights through the Human Rights Act 1998 has strongly affected the use of proportionality in UK law. When a fundamental right is involved, proportionality is the standard of review, as set out in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 72. This reflects the Convention’s focus on defending individual rights and ensuring that any restrictions on those rights are justified and balanced.
The Future of Wednesbury: A Changing Field
The growing use of proportionality raises questions about the continued relevance of Wednesbury unreasonableness. Some propose that proportionality should become the general standard of review, offering a more structured and transparent process. Others maintain that Wednesbury is still valuable in situations where basic rights are not involved, allowing appropriate deference to administrative choices. The Supreme Court has noted the ongoing debate, suggesting in cases like Kennedy v The Charity Commission [2014] UKSC 20 that the two standards are not always clearly separate and may overlap at times.
Conclusion
Wednesbury unreasonableness and proportionality signify different methods of judicial review. Wednesbury leans toward restraint, intervening only in cases of extreme unreasonableness. Proportionality, on the other hand, requires a more methodical and balanced review of administrative decisions, especially when significant rights are in question. The growing role of human rights law and the persistent discussion about the boundaries of judicial review indicate that the connection between these two standards will continue to develop, shaping administrative law in the UK. This change requires careful examination of how to balance individual rights with the democratic legitimacy of administrative decisions. Courts play an important role in making sure that the chosen standard of review is applied suitably in each specific case, upholding fairness and effective administration.
