The Wednesbury Principle

Prima facie, it may seem irrelevant to ask the obvious question: Could it have possibly been the intention of the Parliament that any body should behave unreasonably? The answer is, of course, no, and it is this understanding that provides the basis for jurisdiction. [1]

Critical to the evaluation of the Wednesbury principle [2] is an appraisal of where it can be located within the scheme of administrative law, and its articulation in a different category of challenge to administrative action.

The purpose of the introduction is twofold: If we concede that the Wednesbury principle is a tool for challenging administrative action,

Where is the principle located within the scheme of administrative law?

Why is there a necessity to study unreasonableness under a different category, is this not covered by the ultra vires doctrine? [3]

The way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is understood with respect to grounds of judicial review of administrative action. In relation to this, as the ultra vires principle already exists, a question that is often asked is the reason for the necessity of a discrete principle relating to unreasonableness.

Grounds of review and the location of the Wednesbury principle

Special reference may be made to the “GCHQ case”, wherein it was stated that grounds of judicial review may be subsumed under three main heads, which are:

Illegality

Irrationality

Procedural impropriety

It is in the second aforementioned category that the Wednesbury principle finds relevance, and Lord Diplock has elucidated the concept, by stating that “irrationality” is applicable in a decision which is so outrageous in its defiance of either logic, or morals, that no sensible person could have arrived at that conclusion on proper application of his mind. He also adds that whether or not a decision falls within the ambit of this category is subjective, and depends on the interpretation of the judge. [4]

The doctrine of ultra vires and the need for a separate ground of “unreasonableness”

In understanding the need for a separate ground of “unreasonableness”, the import of the ultra vires doctrine is deserving of mention. The ultra vires doctrine refers to an action which is in excess of the powers of decision making bodies, and the reasoning or implications of this principle are important insofar as they uphold the sovereignty of parliament, and the rule of law (such importance is to be illustrated in comparison with the Wednesbury principle).

Very often, there are cases wherein there is more than one ground of challenge, and this is because the facts of any case are likely to introduce several levels of complexity. It has been observed that numerous decisions have unreasonableness as a common factor. However, the use of the term “unreasonableness” is not specific enough. Questions related to this are: What do the judges mean when they use the term “unreasonableness”? Does it refer to outrageous behaviour, or a duty of the public body to act reasonably? What the researchers seek to do in this project is to answer these questions, by way of analysis of the Wednesbury case, and the principle that evolved thus. [5]

A. Cases Preceding the Wednesbury Principle

In understanding the true import of the Wednesbury case and the principle it laid down, it is necessary to refer to the cases preceding the Wednesbury principle, and this can be broadly divided into three parts:

Early decisions on the unreasonableness principle

Developments in the principle of unreasonableness in the 20th century

The cases referred to in the Wednesbury judgment

I. Early decisions on the unreasonableness principle

The principle of unreasonableness does not flow out of the Wednesbury doctrine alone, and it has been widely recognized that unreasonableness has been established as one of the many traditional grounds of review, in administrative law, which pre dates Wednesbury by many years. [6]

In this respect, reference in made to Sir Edward Coke CJ’s dicta in Rookes Case [7] , which contains a statement which has not lost its accuracy over four hundred years, and this principle remains the same to this day. [8]

Rookes Case

In this case, the Commissioner of Sewers had levied charges for repairing a river bank. Ideally, these charges ought to have been divided equally among all the owners benefited, but this charge had been thrown on one adjacent owner. According to law, they had the power to levy this charge in their discretion, but this charge was disallowed as inequitable.

Coke opined: “… notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections…”

While the discretion conferred by the authority to the commissioners allowed them to exercise such discretion as they thought fit, the additional limitation of such discretion being in conformity with the “rule of reason” was imposed by Coke in this case.

The continuance of the Rookes ratio in other subsequent cases

The rationale used by Coke in the Rookes ratio was followed in 1647 – Estwick v City of London [9] – The question related to the discretion of a commissioner, and it was held that where a commissioner has the power to do a certain thing at his discretion, such discretion needs necessarily to be sound discretion, and it has to be according to law, and in the event that this is not followed, the court has the power to redress things done by them (in their non compliance of these conditions.) [10]

While the Rookes ratio did not deal with judicial review of such discretion in explicit terms, this case laid down that not only does such discretion have to be sound discretion (which followed the Rookes ratio as such discretion necessarily needs to follow the “rule of reason”), but also that the Court reserves the power to assess such exercise of discretion.

1666 – R v Commissioner of Fens [11] – The court in this case granted certiorari against the commissioner of Fens merely on the allegation that they had proceeded unreasonably, as the court could judge whether they (the commissioner) have pursued their powers. This is a reiteration of the principle that the court can take it upon itself to ensure that the discretion exercised by an authority wielding power is exercised reasonably.

1773 – Leader v Moxon [12] – The paving commissioners in this case were given the power to make alterations in streets “in such a manner as the commissioner shall think fit”, and the in the exercise of this discretion, the commissioners raised part of a street by six feet, thus blocking the plaintiff’s doors and windows. It was held that the commissioners had grossly exceeded their powers, and such discretion was arbitrary. The emphasis once again was on the conformity of such discretion with the “rule of reason”, and this echoed the ratio in the Rookes case.

II. Developments in the principle of unreasonableness in the 20th century

1905 – Westminster Corporation v. L and NW Railway [13] – The issue was about the discretion of a local authority to erect certain public conveniences, and it was opined by Lord MacNaghten in this case that such a body vested with discretion should take care so as to keep within the limits of the authority committed to it, and in the exercise of its discretion must act in good faith, and reasonably. [14]

1925 – Roberts v Hopwood [15] – Acting in the exercise of his discretion, the district auditor had disallowed what in his opinion were “over generous” wages paid by the Borough Council of Poplar to their employees under an Act which empowered them to pay such wages as they “may think fit.” The House of Lords was of the opinion that the Borough need not have paid more than what was reasonable. Once again, the test was of reasonableness in the exercise of discretion.

III. Cases Referred to in the Wednesbury Judgment

The Wednesbury case did not arise in a vacuum, and the trend in precedents contributed greatly to the judgment which was delivered, and which ultimately shaped principles of unreasonableness. Although there were several cases referred to in the judgment, the cases that are most important and on which most reliance was placed will be discussed:

Theatre de Luxe (Halifax) Ltd. v Gledhill [1915] 2 KB 49

Harman v Butt [1944] KB 491

Theatre de luxe (Halifax) Ltd. v. Gledhill [16]

a. Relevant provision

The relevant legislation was the Cinematography Act, 1909, and the provision which found application was Section 2, sub section 1

This provides that the Cinematography Act is “ An Act to make better provision for securing safety at Cinematograph and other Exhibitions” and for this purpose, A county council may grant licences to such persons as they think fit to use the premises specified in the licence for the purposes aforesaid”–i.e., for cinematograph exhibitions–

“on such terms and conditions and under such restrictions as, subject to regulations of the Secretary of State, the council may by the respective licences determine.”

b. Discretion exercised

Such discretion vested in the authority was manifested in the following way: A licence was granted under the aforementioned Section, subject to the condition that

children under 14 years could not enter the premises after 9 pm , if they were unaccompanied by a guardian or a parent

children under 10 years could not enter the premises, irrespective of whether they were accompanied by a guardian or a parent.

c. Judgment delivered

– The majority (as per Lush and Rowlatt, JJ) opined that the condition was ultra vires inasmuch as there was no connection between the ground upon which the condition was imposed, and the use of the premise. In other words, there was no connection between the health and and welfare of young children, and the use of the premise for holding exhibitions.

– The minority (as per Atkin, J) was referred to in the judgment of the Wednesbury case. Atkin J opined that the restriction upon the power of the authority to impose conditions on the grant of licences to these houses is that the conditions must satisfy three requirements:

1. They must be reasonable
2. They must be in respect of the use of the licensed premises
3. They must in the public interest.

If these requirements are satisfied, then the condition is not ultra vires, and the authority can take into account the public interest so far as children are affected.

Harman v Butt [17]

Relevant provision

The relevant provision was Section 1, sub section 2 of the Sunday Entertainments Act, 1932, and acting under this provision, an authority, having power to grant licences under the Cinematograph Act, 1909, allowed a cinematograph theatre in their area (which was licensed under the aforementioned Act) to be open, and used on Sundays for the purpose of cinematograph entertainments.

Discretion exercised

In the exercise of the discretion vested in it by virtue of the Cinematograph Act, the authority imposed a condition on the cinematograph theatre. That is, such discretion vested in the authority was manifested in the following way: a licence was granted subject to one condition

that no child under the age of sixteen years should be admitted to the cinematograph theatre.

Judgment

It was held that the imposition of this condition was not ultra vires, and the condition was not unreasonable. Discretion when vested in an authority must be exercised in a reasonable way, and there is nothing in the exercise of the discretion vested in the authority which suggests that it was not exercised in a reasonable manner, in accordance with the “rule of reason” (the original phrase used by Coke in the Estwick case).

B. The Wednesbury Case

The Case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [18]

Introduction and synopsis of the case

In modern days authorities both statutory and governmental – enjoy a wide range of discretionary powers. This power is however, fettered by restraints. It is to be exercised in public interest and for the public good. The wide range of authorities and officers conferred with discretion adds to the intensity of the problem in as much as quite frequently discretionary powers are wrongly exercised or otherwise abused. In early times, the courts have been overseeing the exercise of discretionary powers by way of judicial review. New developments in administration made the Courts to adopt new techniques to discipline the exercise of administrative discretion but the judiciary was very cautious in exercising its power of judicial review.

It was in Wednesbury Corporation case that the Court of Appeal in England ruled that the courts could only interfere in an act of executive authority if it be shown that the authority had contravened the law and that the power of the courts to interfere in such matters is limited, except where the discretion has not been exercised within the four corners of well-known legal principles. This observation signified the approach the judiciary adopted.

In Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., Lord Greene, M.R. in a classic and oft-quoted passage held that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other following conditions were satisfied viz. the order was contrary to law, or irrelevant factors were considered, or relevant factors were not considered or the decision was one that no reasonable person could have taken.

Facts of the Case

The facts of Wednesbury are critical to a discourse on the subject. The plaintiff company, the owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by the defendants who were the licensing authority for that borough under the Cinematograph Act, 1909, a licence to give performances on Sunday under S.1 (1) of the Sunday Entertainments Act, 1932; but the licence was granted subject to a condition that “no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not.” In these circumstances the plaintiffs brought an action for a declaration that the condition as ultra vires and unreasonable.

To elucidate:

The plaintiffs and the defendants

The plaintiffs were the owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire. The defendants were the licensing authority for that area, the Wednesbury Corporation.

The discretion granted to the Wednesbury Corporation

1. Legislations relevant – Reference may be made to two important legislations in this respect:

The Cinematograph Act – The Wednesbury Corporation had the power under this Act to grant licences in any area for cinematograph performances.

The Sunday Entertainments Act – Section1, sub section 1 of this Act provided that if an authority had, under the Cinematograph Act, the power to grant licences in any area for cinematography performances, then such authority had the power to allow a licensed place to be open and used on Sundays, “subject to such conditions as the authority thinks fit to impose”.

The Wednesbury corporation, in this case, was an authority which had:

The power to grant licences in any area for cinematograph performances under the Cinematograph Act, 1909, and

The power to allow a licensed place to be open and used on Sundays, “subject to such conditions as the authority think fit to impose.”

As there was no debate about the Wednesbury Corporation being an authority contemplated under the Cinematograph Act, there was no debate about it being an authority under the Sunday Entertainments Act.

The discretion exercised by the Wednesbury Corporation

The Wednesbury Corporation granted the license to the plaintiffs on the condition that no children under 15 years, whether accompanied by an adult or not, should be admitted to Sunday performances

The issue brought forth

The claim of the plaintiffs was that the condition was ultra vires and unreasonable.

Judgment and rationale

The Court held that in considering whether an authority having so unlimited power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The Court cannot interfere as an appellate authority overriding the decisions of such authority but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power. Lord Greene, who rendered the leading judgment, dealt with the law in detail and enunciated ––“principles of reasonableness”, and as an aside, Indian Courts have followed these ‘Wednesbury principles of reasonableness’ in various decisions. Lord

Greene M.R. also went on to explain the word ‘unreasonableness’ and held that when an executive discretion is entrusted by a Parliament to a body, such as the local authority, the discretion exercised by the authority can only be challenged in the Courts in a strictly limited class of cases. He also described the various grounds of challenge which went into the legality of public body’s actions. Unreasonableness was used to describe actions based on illegality, irrelevancy and the like. This Wednesbury test has been the major tool used by the Courts to control discretionary decisions. To quote the learned judge on the crux of the judgment;

“What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. [19]

What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrelevant collateral matters.”

Summary

The Court of Appeal held that it could not intervene to overturn the decision of the defendant corporation simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that:

The corporation, in making that decision, took into account factors that ought not to have been taken into account, or

The corporation failed to take account factors that ought to have been taken into account, or

The decision was so unreasonable that no reasonable authority would ever consider imposing it.

The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. The test laid down in this case, in all three limbs, is known as “the Wednesbury test”. The term “Wednesbury unreasonableness” is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way.

C. Post-Wednesbury in Common law

These principles of Wednesbury unreasonableness underwent major modification through the course of decisions in England. A classic example would be the decision of Lord Diplock in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services [20] also known as GCHQ case. Through his judgment, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being “illegality”, the second “irrationality” and the third ‘procedural impropriety’. He also mentioned that by further development on a case to case basis, in due course, there may be other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of ‘reasonableness’ with that of ‘rationality’ when he said:

“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it….”

The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employees to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest.

Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the pros and cons of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. This is so as administrative decisions can often have profound implications on the day-to-day lives of our citizens, their rights, liberties, and legitimate pursuits.

The test adopted by Lord Diplock also underwent criticism and it was said in another decision as “conduct which no sensible authority acting within due appreciation of its responsibilities would have decided to adopt” and these unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.

In a recent decision, R (Daly) Vs. Secretary of State for the Home Department [21] , Lord Steyn explained the earlier decision and opined on the principles of judicial review as under:

“26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation [1948] I KB 223), and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights …..There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights are at stake.”

However, in the case of ex-parte Daly, it is the speech of Lord Cooke of Thorndon that has attracted much attention to the principle of judicial review as enunciated in the Wednesbury Case.

“[32]…. And I think that the day will come when it will be more widely recognized that the Wednesbury case was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.” (p447)

This widely cited quote has generated much debate and anxiety over the applicability and future of the Wednesbury Principle. Some commentators feel that in the light of the above statement in the Daly Case, the administrative power of discretion that has remained protected from judicial review unless challenged on the grounds of absurdity, irrationality or perversity was now open to the test of proportionality as enunciated by Prof. Jeffrey Jowell in his article titled “Beyond the Rule of Law: Towards Constitutional Judicial Review”.

Professor Jowell describes the proportionality test to involve a ‘sophisticated four stage process’ posing the following questions:-

(1) Did the action pursue a legitimate aim?

(2) Were the means employed suitable to achieve that aim?

(3) Could the aim have been achieved by a less restrictive alternative?

(4) Is the derogation justified overall in the interests of a democratic society?

According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny of a decision called into question.

According to De Smith, Woolf and Jowell on Judicial Review of Administrative Action, [22] there are three principal formulations by which proportionality is tested.

The principle of proportionality evaluates two aspects of a decision:

(1) Whether the relative merits of differing objectives or interests were appropriately weighed or “fairly balanced”?

(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an unnecessary burden on affected persons? [23]

D. Wednesbury in the Indian Scenario

It may be stated at the onset that the Supreme Court has been applying the test of reasonableness unreasonably and the proportionality principle disproportionately. While the general trend has been stated below, the researchers have focused more on the development of jurisprudence in the 21st Century.

Prior to making a statement on the evolution of case law in India, one must scrutinize the case of Rameshwar Prasad v. Union of India, decided in 2005, by the Hon’ble Supreme Court of India. The minority judgment by Hon’ble Justice Arijit Pasayat has relied heavily on Wednesbury principles regarding the standards for judging reasonableness of an executive action. Unfortunately it has overlooked that the Wednesbury principles have been diluted, if not rejected, by the House of Lords in Ex parte Daly in 2001 and previously by the Privy Council in 1999. This was pointed out in the submissions but somehow has escaped attention.