Introduction
Judicial review, an essential part of administrative law, scrutinizes the legality of public body decisions. Two prominent standards of review employed in this process are the Wednesbury unreasonableness test and the proportionality test. Wednesbury unreasonableness, originating from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, examines whether a decision is so unreasonable that no reasonable authority could have reached it. Proportionality, derived from European Union law and human rights jurisprudence, assesses whether a decision is suitable, necessary, and balanced in achieving its objective. This article provides a comprehensive comparison of these two standards, analyzing their historical development, application, and implications for administrative decision-making.
The Wednesbury Standard: A High Threshold
The Wednesbury test sets a high threshold for intervention. A decision is deemed unreasonable only if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it. Lord Greene MR in Wednesbury famously described this as a decision "so unreasonable that no reasonable authority could ever have come to it." This standard affords considerable deference to the decision-maker, emphasizing judicial restraint in interfering with administrative discretion. Case law subsequent to Wednesbury, such as Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ), further refined this concept, introducing the notion of “irrationality” as a synonym for Wednesbury unreasonableness.
Proportionality: A Structured Approach
In contrast to the single-stage Wednesbury test, proportionality involves a structured four-stage inquiry. First, the measure must have a legitimate aim. Second, the measure must be suitable or rationally connected to achieving that aim. Third, the measure must be necessary, meaning there is no less restrictive means of achieving the same aim. Finally, the measure must be balanced or proportionate, weighing the benefits against the burdens imposed. This structured approach offers a more rigorous assessment of administrative decisions, particularly concerning fundamental rights.
Divergent Applications and Impacts
The application of Wednesbury and proportionality differs based on the context. Traditionally, Wednesbury unreasonableness has been the dominant standard in general administrative law cases. Proportionality, initially confined to European Union law and human rights contexts, has seen increasing application in domestic law, particularly where fundamental rights are engaged, as shown in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26. This divergence in application stems from the perceived stricter scrutiny offered by proportionality, potentially limiting administrative discretion more significantly than Wednesbury.
The Relationship Between the Two Standards
The relationship between Wednesbury and proportionality has been a subject of considerable judicial and academic debate. Some view proportionality as a more structured and refined version of Wednesbury, arguing that a truly disproportionate decision would also be Wednesbury unreasonable. Others maintain that the two standards are distinct, with proportionality offering a more intensive level of review. The House of Lords in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 63 acknowledged the distinct nature of the two tests, but also indicated that in some cases, a decision so unreasonable as to be Wednesbury unreasonable could also be disproportionate.
Illustrative Examples: Planning and Human Rights
Consider a planning decision to refuse permission for a new housing development. Under Wednesbury, the court would only intervene if the decision was so unreasonable that no reasonable planning authority could have made it. Under proportionality, the court would assess whether the decision pursued a legitimate aim (e.g., environmental protection), whether the refusal was suitable and necessary to achieve that aim, and whether it struck a fair balance between the interests of the developer and the public interest. In human rights cases, such as challenges to prison regulations, proportionality is typically the applicable standard, ensuring that restrictions on rights are justified and proportionate to the legitimate aims pursued.
Conclusion
The Wednesbury unreasonableness test and the proportionality test represent distinct approaches to judicial review of administrative action. While Wednesbury focuses on the overall reasonableness of a decision, proportionality provides a more structured framework assessing suitability, necessity, and balance. The choice between these standards depends on the specific context, with proportionality gaining prominence in areas concerning fundamental rights. The interplay between these two tests continues to change, affecting the field of administrative law and influencing the balance between judicial oversight and administrative discretion. The application of these standards ultimately safeguards against arbitrary governmental action, ensuring that administrative decisions are lawful, rational, and respectful of individual rights. Cases such as Kennedy v The Charity Commission [2014] UKSC 20 further highlight the ongoing judicial consideration of the appropriate application of these standards within the changing field of law.
