Introduction
Judicial review assesses the legality of public body decisions. Kennedy v Charity Commission [2014] UKSC 20 significantly affected the understanding of the relationship between the traditional Wednesbury unreasonableness standard and the emergent principle of proportionality. This case concerns the application of these standards in the context of decisions made by the Charity Commission. The key requirements for establishing Wednesbury unreasonableness involve showing a decision so illogical that no reasonable authority could have reached it. Proportionality, derived from European Union law and the Human Rights Act 1998, requires a more structured examination of whether a decision pursues a valid aim, is appropriate, necessary, and achieves a fair balance between individual rights and public interests.
The Facts of Kennedy
The case arose from Mr. Kennedy's requests to the Charity Commission for information related to investigations into the Mariam Appeal, a charity he had chaired. The Commission refused his requests, relying on exemptions under the Freedom of Information Act 2000. This refusal formed the basis of Mr. Kennedy's legal challenge.
The Supreme Court's Analysis of Wednesbury
The Supreme Court in Kennedy offered a detailed interpretation of Wednesbury unreasonableness. Lord Mance, delivering the leading judgment, clarified that Wednesbury represents a range of review intensity. While at one extreme lies a very high threshold, requiring a decision to be so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it, at the other extreme, less extreme decisions may still be considered unreasonable if they lack proper justification or contain a clear error of judgment. This flexible approach allows the court to adjust the intensity of review to the specific context of the case.
Proportionality and its Growing Significance
The Supreme Court also discussed the role of proportionality. While noting that Wednesbury remains the standard test for cases not involving fundamental rights or EU law, the Court recognized the increasing role of proportionality. Lord Mance observed a "convergence" between the more intensive end of the Wednesbury spectrum and the proportionality test, suggesting that in some situations, the two standards may produce similar conclusions. This adjustment points to the gradual influence of proportionality principles in areas traditionally governed by Wednesbury.
The Blurring Lines Between the Two Standards
The Kennedy judgment arguably blurred the lines between Wednesbury and proportionality. While not expressly discarding Wednesbury, the Court’s emphasis on a flexible and case-specific approach to Wednesbury review, together with its acknowledgment of the increasing convergence with proportionality, has created some uncertainty. This uncertainty has led some observers to speculate about the eventual eclipse of Wednesbury by proportionality, especially in cases involving considerable effects on individual interests.
Practical Implications of Kennedy
The practical implications of Kennedy are considerable. The decision has provided courts with greater flexibility in examining administrative decisions. By acknowledging the varying intensity of Wednesbury review and the overlap with proportionality, Kennedy allows courts to adjust their approach to the particular facts of each case, resulting in more cautious and context-sensitive judgments. For instance, cases involving notable individual rights, even outside the scope of the Human Rights Act, may now undergo a more searching review under the more intensive end of the Wednesbury spectrum, mirroring the structured review associated with proportionality. This move toward a more case-specific and potentially rights-conscious approach marks an important step in administrative law. The judgment in Kennedy serves as a key resource for understanding the shifting relationship between Wednesbury unreasonableness and proportionality, influencing later judicial decisions and academic commentary in the field.
Conclusion
The Supreme Court's judgment in Kennedy v Charity Commission is a key decision in administrative law. It clarified that the intensity of Wednesbury review is not static, ranging from a very high threshold at one end to a less strict standard at the other. The Court also highlighted the growing effect of proportionality and its potential alignment with the more intensive end of the Wednesbury spectrum. This has introduced some uncertainty about the precise relationship between the two standards, with some suggesting that proportionality may ultimately replace Wednesbury in certain contexts. Kennedy represents an important development in judicial review, giving courts greater flexibility to shape their approach to the specific circumstances of each case. The judgment's discussion of Wednesbury and proportionality offers valuable guidance for practitioners and academics alike. This case has a significant bearing on how judicial review principles are used in administrative law, confirming the flexible nature of Wednesbury and recognizing the increasing relevance of proportionality in regulating public authority.
