The Wednesbury test, for all its defects, had the advantage of simplicity, and it might be thought unsatisfactory that it must now be replaced (when human rights are in play) by a much more complex and contextually sensitive approach.

        It is undeniable that the wednesbury test was as simple as they come. It relied on a judge’s discretion to decide whether an authority had been unreasonable or not. The courts however have always been cautious when entering the realms of judicial review, probably because the scope of decisions which the executive have to make is so large that it is possible that many of the decisions which they make will upset some section of the community. Even if the courts have a different opinion to the other body they should not act upon that, provided that the authority has acted within the law and reasonably.

        The Human Rights Act (1998) however, demands that public bodies operate within the boundaries of the European Convention on Human Rights. Failure to do so may result in their actions instantly being regarded as ultra vires and therefore subject to judicial review. Basically this means that, in principle, the courts now have more power to overrule or quash executive decisions on the basis that human rights have been breached. Due to the Human Rights Act 1998 “in judicial review cases in which Convention rights are at stake, the proportionality of a decision may need to be examined as well as its validity under the traditional Wednesbury criteria”. The usual grounds of review and the approach of proportionality appear to be linked. It is quite possible that the outcome of a case would be the same no matter which approach is undertaken, but as Lord Steyn stated in R v Home Secretary, ex parte Daly (2001) 3 All ER 433: “the doctrine of proportionality may require the reviewing court to asses the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.” It is clear that under the proportionality test the review of the decision maker is much deeper and allows a certain amount of leeway as opposed to the more rigid Wednesbury approach, either something is reasonable or it is not at any given time.

        It has now being discussed as to whether disproportionality should now be considered as a general ground for judicial review. Because of its prominence in European Court of Human Rights cases it could be argued that it should now also become a prominent feature of English law. One of those in favour of this move is Lord Slynn, he delivered the following judgment in R v Secretary of State for the Environment (2001) 2 All ER 929: “national judges must apply the same principle (proportionality) when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Wednesbury. But the difference in practice is not as great as is sometimes supposed. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing”. The days of the Wednesbury test appear to be numbered, yet the responsibility to dissolve it lays with the House of Lords. This was acknowledged in R v Secretary of State for Defence (2003) 3 WLR 80 were the Court of Appeal seemed to agree with Lord Slynn’s statement. It is very hard to see the doctrine of proportionality and the Wednesbury test co-existing in administrative law, simply because it could create too much confusion among judges. This day in age it seems that Human Rights is one of the predominant factors in English and for that matter European law. It is the doctrine of proportionality which is referred to when deciding cases to do with Human Rights and is therefore the one which appears to have the longest future ahead.

        The judiciary has usually restrained itself from dealing with administrative unreasonableness. It was often stated that the courts function was not to look into the merits of a decision. Instead, judicial review was concerned with the process taken before making a decision. It is the courts job to distinguish between reasonableness and unreasonableness and between proper use and abuse of power. Having said that the term unreasonableness is very ambiguous, and gives the judiciary the unprecedented power to innovate, albeit wisely. This means that the concept of unreasonableness has no black or white and allows the judiciary to set the standards according to the trends and needs of the time. What is reasonable today might have been considered ludicrous thirty years ago. The wednesbury case is a classic example, it was thought that children under the age of fifteen attending cinema on a Sunday was bad for the “well being and the physical and moral health of children”. Today children walk in and out of cinemas as they please. Therefore in an ever changing society it is essential that the boundaries of unreasonableness are always open, ensuring that the law is up to date with the needs of the people at any given time, so that the law can count on the one thing it needs the most, the support of the people.