Wednesbury vs Proportionality: Standards in Judicial Review

Introduction

Judicial review checks the lawfulness of decisions made by public bodies. Two well-known standards guide that review in UK administrative law: Wednesbury unreasonableness and proportionality.

• Wednesbury unreasonableness comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. It asks whether a decision is so unreasonable that no reasonable authority could have reached it, a very demanding threshold that preserves a wide margin for the decision-maker.
• Proportionality, developed through EU law and the Human Rights Act 1998 (HRA), asks whether a measure pursues a legitimate aim, is suitable, necessary, and strikes a fair balance. It is a more structured analysis, especially prominent when fundamental rights are involved.

This guide compares the two standards, shows when each is used, and sets out key cases and practical steps for problem questions and real cases.

What You'll Learn

• What Wednesbury unreasonableness means and how courts use it
• The four-stage proportionality test and how to apply each limb
• How courts choose between the two standards in UK administrative law
• How intensity of review varies with the context (e.g., rights, national security, social policy)
• Leading authorities: Wednesbury, CCSU (GCHQ), Daly, Bank Mellat, Kennedy, Pham
• Practical steps to argue Wednesbury or proportionality in claims or defences
• Typical remedies and what outcomes to expect under each standard

Core Concepts

Wednesbury Unreasonableness: Definition and Use

Wednesbury unreasonableness is a high bar for claimants. A decision will be unlawful if it is so unreasonable that no reasonable authority could have made it. Lord Greene MR in Wednesbury framed the test and highlighted three common errors:

• Taking into account irrelevant considerations
• Failing to take into account relevant considerations
• Reaching a decision so unreasonable that no reasonable authority could come to it

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ), the House of Lords grouped “irrationality” under the same umbrella. Courts often treat Wednesbury as a sliding scale. Where serious rights or interests are at stake, they look harder at the evidence and reasoning. This approach appeared in ex p Smith [1996] QB 517 (“anxious scrutiny”), even before the HRA.

What it feels like in practice:

• The court will not replace the public body’s judgment with its own.
• The focus is on whether the decision falls outside the range of reasonable responses.
• Strong reasoning, proper evidence, and clear consideration of relevant factors usually satisfy the court.

Proportionality: The Four-Stage Test

Proportionality is more structured than Wednesbury. The modern formulation appears in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 and builds on R (Daly) v Secretary of State for the Home Department [2001] UKHL 26.

Courts ask:

1. Is there a legitimate aim?
2. Is the measure suitable (rationally connected to that aim)?
3. Is it necessary (no less restrictive measure would achieve the aim)?
4. Does it strike a fair balance between the rights of the individual and the interests of the community?

When proportionality applies (e.g., under the HRA), the court usually examines the factual basis more closely, considers alternatives, and weighs the competing interests. It is not a merits appeal, but the court’s scrutiny is more structured and, often, more exacting than Wednesbury.

When Each Standard Applies

• General administrative law (no human rights or retained EU law point): Wednesbury unreasonableness is the default standard.
• Human rights (HRA 1998, s.6): Proportionality applies.
• Retained EU law (where still relevant): Proportionality applies.
• Common law rights cases without HRA reliance: The Supreme Court in Kennedy v The Charity Commission [2014] UKSC 20 signalled that common law can develop its own approach. Courts sometimes use a more searching form of rationality or something close to proportionality, depending on the context.

Key message: Identify the legal source of the claim. If a Convention right is engaged and the claim is brought under the HRA, use proportionality. Otherwise, start with Wednesbury, but be ready to explain why the intensity should be higher or lower.

Intensity of Review and Evidence

Courts modulate their intensity of review:

• Higher intensity: interferences with core rights (privacy, expression, liberty), serious impacts on individuals, or where the decision lacks a proper evidence base.
• Lower intensity: complex social or economic policy, national security, or matters demanding institutional competence beyond the court.

Cases to know:

• Daly: Proportionality required a closer look at whether cell-search rules unduly interfered with legal privilege.
• Bank Mellat (No 2): Structured analysis tested the fit between a sweeping financial restriction and its aim.
• Pham v Secretary of State for the Home Department [2015] UKSC 19: Several justices suggested that, at higher intensities, rationality review and proportionality can look quite similar in practice.

Key Examples or Case Studies

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

• Context: Local authority allowed Sunday cinema openings but banned under-15s.
• Test applied: Wednesbury unreasonableness.
• Result: Decision upheld. The court would only interfere if the decision was outside the range of reasonable options.
• Why it matters: Sets the classic high threshold and highlights relevant/irrelevant considerations.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ)

• Context: Change to trade union rights at GCHQ on national security grounds.
• Test applied: Irrationality (Wednesbury), with deference on national security.
• Result: Claim failed due to national security considerations.
• Why it matters: Confirms categories of review (illegality, procedural fairness, irrationality) and shows varying intensity.

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26

• Context: Blanket cell-search policy interfered with prisoners’ legal correspondence.
• Test applied: Proportionality under the HRA.
• Result: Policy incompatible with Article 8 because it went further than necessary.
• Why it matters: Demonstrates how proportionality can be stricter than Wednesbury where rights are engaged.

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

• Context: Order restricting a bank’s access to UK financial markets.
• Test applied: Proportionality with a four-step structure.
• Result: Order quashed as disproportionate; the measure was overbroad compared with the aim.
• Why it matters: Canonical statement of the four-stage test and its practical bite.

Kennedy v The Charity Commission [2014] UKSC 20

• Context: Access to information from a regulator.
• Test applied: Common law analysis rather than relying solely on Article 10.
• Result: Appeal dismissed, but the court encouraged development of common law standards.
• Why it matters: Suggests that, even outside the HRA, courts can apply a more exacting analysis than bare Wednesbury in some cases.

R v Secretary of State for the Home Department, ex p Smith [1996] QB 517

• Context: Dismissal of gay service personnel.
• Test applied: Wednesbury with “anxious scrutiny.”
• Result: Claim failed, but the court scrutinised reasons closely.
• Why it matters: Shows how intensity can increase within rationality review, especially where rights are at stake (pre-HRA).

Practical Applications

Step-by-step approach for problem questions and casework:

1. Identify the legal route

• Is the claim brought under the HRA 1998? If yes, proportionality applies.
• Is the challenge based on retained EU law? If yes, proportionality usually applies.
• Otherwise, start with Wednesbury, along with other grounds (illegality, procedural fairness).

1. Choose the standard and set out the test

• Wednesbury: Identify relevant/irrelevant considerations, logic of the decision, and whether it falls outside a reasonable range.
• Proportionality: Work through the four limbs in order—legitimate aim, rational connection, necessity, fair balance.

1. Gather and assess evidence

• For Wednesbury: Show careful reasoning, consideration of key factors, and a sensible link to statutory purposes. Claimants should highlight gaps or misdirections.
• For proportionality: Assemble evidence showing the aim, the effects of the measure, the options considered, and why less restrictive alternatives would or would not have worked.

1. Calibrate intensity

• Rights-sensitive matters: Expect greater scrutiny. Provide fuller evidence and reasons.
• Polycentric or economic policy: Expect greater latitude. Still show a rational evidence base and clear reasoning.

1. Remedies and outcomes

• Quashing order if the decision is unlawful; sometimes a declaration or mandatory order.
• Under the HRA, consider declarations of incompatibility and damages where appropriate.
• Be ready for remittal to the public body to take the decision again lawfully.

1. Drafting tips for claims and defences

• Signpost the chosen standard clearly at the start of the analysis.
• For Wednesbury, structure submissions under the classic headings (relevant/irrelevant considerations, outrageous defiance of logic).
• For proportionality, label each limb and apply facts under each heading.
• Do not mix tests. If both may apply, run them in the alternative.

For public bodies planning new policies

• Record the aim clearly and link each measure to that aim.
• Keep a paper trail of options considered and why less restrictive alternatives were rejected.
• Use pilots, evidence reviews, and impact assessments to support the fair balance limb.
• Give reasons that show engagement with the main objections.

Summary Checklist

• Identify whether the HRA or retained EU law is engaged
• Choose the correct standard: Wednesbury or proportionality
• Wednesbury: relevant/irrelevant considerations, rational range
• Proportionality: aim, connection, necessity, fair balance
• Calibrate intensity: rights vs broad policy areas
• Cite leading cases: Wednesbury, CCSU, Daly, Bank Mellat, Kennedy, Pham
• Seek appropriate remedies: quashing, declaration, damages (HRA)
• Keep reasons and evidence organised to withstand scrutiny

Quick Reference