Public_Law

Compare and contrast the principles of Wednesbury unreasonableness and proportionality. Is there room for both in English Law' Wednesbury unreasonableness and proportionality are principles of judicial review[1]. The underlying principle of judicial review is the doctrine of Ultra Vires which means “beyond the power”. Judicial review is a concept which has been of rapid developed in modern years but still the main principles remain. This is public authorities must exercise their powers within the law without abuse of power. This is evidenced in Rooke’s Case (1598)[2] and Leader v Moxon (1773)[3]. There’s a danger that boundaries between procedure and merits may become blurred and judges may overturn decisions if they personally disapprove. A case of the courts reviewing actions of public authorities in this dangerous way is Roberts v Hopwood (1925)[4]. The problems in Roberts v Hopwood carried weight in the Court of Appeal in the leading case Associated Provincial Picture Houses v Wednesbury Corporation (1947)[5] of which the Wednesbury principle arrived from. In Wednesbury the court had to consider the legality of a condition imposed under statute. The statute permitted such conditions as the authority think fit to impose. In this case the condition was that no children under the age of 15 could be admitted to the cinema on a Sunday. This condition was not unreasonable. In the judgement of this case Lord Greene MR said “A court may set aside a decision for unreasonableness only when the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” Following Wednesbury, in Council of Civil Services Unions v Minister for the Civil Service (1984)[6], Lord Diplock described such a decision as “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it.” The main principle of Wednesbury is when a decision held to be outside the public body’s power if it was so unreasonable that no reasonable public body could have reached the decision. A negative side of Wednesbury is that it is a very narrow test. It was in “Freedom, the individual and the Law.”[7] , written by Geoffrey Robertson, that illustrated this narrow test severely limits courts power to supervise the executive. An example of strictness of Wednesbury priciples is in R v Ministry of Defence, ex parte Smith (1995)[8] when the applicants were dismissed from the armed forces because they were homosexuals. The ban was held as legal because it was not Wednesbury unreasonable. This case illustrated that Wednesbury test is very poor for protecting individual’s rights and the English courts were heavily criticised by the European Courts of Human Rights for the test being too high. With the criticisms that the Wednesbury test it is too difficult to meet when challenging Executive discretion it has been argued that there should be adoption of the European concept of “Proportionality”. Proportionality[9] is also a test for judicial review. The principle of proportionality allows for judicial intervention where a public authority has taken action which is disproportionate to its desired target. Its use in English law has been up for much debate. It is argued that proportionality is already in effect covered by the principle of reasonableness. It was in R v Home Secretary ex parte Brind[10], where the Home Secretary had not exercised his power under the Broadcasting Act 1981 in an unreasonable manner. The concept of proportionality found in European law could not be applied without the incorporation of the ECHR. The House of Lords rejected an introduction of proportionality into English Law, however future developments were not ruled out. One possible development of proportionality is through European Community Law. The principle of proportionality has been adopted by the European Court of Justice, of which the English courts are bound to. An example of this is Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co. KG (1977)[11]. A second development of proportionality is from the Human Rights Act 1998. Proportionality is recognised and applied by the European Court of Human Rights. It is writer Wade who notes “numerous references to proportionality which judges are making freely and which are paving the way for its general acceptance.”[12] Following the Human Rights Act 1998 the ECHR was incorporated. The R (on the application of Daly) v Secretary of State for the Home Department (2001)[13] is a case where Judicial review was sought of the policy of removing prisoners from their cells during searches, which included looking at their legal correspondence. The search policy was unlawful under both common law principles and Art 8 ECHR. It was observed by Lord Steyn that proportionality would require a more intense examination of the action taken than review under the concept of Wednesbury unreasonableness. However in R (Alconbury Developments Ltd) v Secretary of State for the environment, Transport and the Regions (2001)[14] Lord Slynn stated that “even without reference to the Human Rights Act the time has come to recognise that this principle (proportionality) is part of English administrative law, not only when judges are dealing with community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing.” In R (ABCIER) v Secretary of State for Defence (2003)[15] the Court of Appeal felt that the proportionality test was actually capable of replacing the Wednesbury test, but had not replaced it yet. In this case it was Slynn who argued that proportionality should be recognised in English law. So in conclusion after looking at cases with Wednesbury and Proportionality tests currently there is enough room for both in English Law. However there have been calls that proportionality is able to succeed the difficult Wednesbury test. I feel that with Wednesbury test weakening the two tests are now overlapping and it seems there is now no need for Wednesbury in English law. My argument is typified by Dyson. It was Dyson LJ that said “the strictness of the Wednesbury test has been relaxed in recent years even in areas which have nothing to do with fundamental rights… The Wednesbury test is moving closer to Proportionality and in some cases it is not possible to any daylight between the two tests…. we have difficulty in seeing what justification there now is for retaining the Wednesbury test. But we consider that this is not for this court to perform its burial rites…. it seems to us that this is a step which can only be taken by the House of Lords.” Word count =1,089 Bibliography Table of Cases Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 481, 486, 543 Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co. KG [1977] ECJ 114/76 Council of Civil Services Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935, 122, 138, 246, 481, 486, 487 Leader v Moxon (1773) R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696 R v Ministry of Defence, ex parte Smith [1995] 4 All ER 427, 486 R (ABCIER) v Secretary of State for Defence [2003] 3 WLR 80 R (Alconbury Developments Ltd) v Secretary of State for the environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 14 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 Roberts v Hopwood (1925) Rooke’s Case (1598) Books used Collin. P, Dictionary of Law 4th Edition (2005) Elliott and Quinn, English Legal System 6th Edition (2005) Loveland. I, Constitutional Law, Administrative Law and Human Rights 4th Edition (2006) Robertson. G, Freedom, the individual and law. (1993) Wade, Administrative Law ----------------------- [1] Dictionary of Law 4th edition 2004, pg 167. P.H Collin. “Judicial review = a review by a higher court of the actions of a lower court or an administrative body.” [2] Rooke’s Case (1598) [3] Leader v Moxon (1773) [4] Roberts v Hopwood (1925) [5] Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) [6] Concil of Civil Services Unions v Minister for the Civil Service (1984) [7] G. Robertson, Freedom, the individual and that law. (1993) [8] R v Ministry of Defence, ex parte Smith (1995) [9] Dictionary of Law 4th edition 2004, pg 167. P.H Collin. “Proportionality = the principle that a government of local authority can only act if the action is in proportion to the aim which is to be achieved, the aim being to protect the rights of ordinary citizens.” [10] R v Home Secretary ex parte Brind [11] Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co. KG (1977) [12] Administrative Law, Wade, pg 372 [13] R ( Daly) v Secretary of State for the Home Department (2001) [14] R (Alconbury Developments Ltd) v Secretary of State for the environment, Transport and the Regions (2001) [15] R (ABCIER) v Secretary of State for Defence (2003)