Proportionality or Wednesbury? Or Both?
Looking more closelynow at the evolution of these seemingly competitive principles, we come to the large surrounding discussion in case law. There are three schools of thought in this area, firstly, there are those who suggest that there is not enough justification for the Wednesbury test to be superceded, those who take that further and hope for a concrete bifurcatory approach, and those who look for what Harrison (2003) aptly coined as a ‘Wednesburial’.
We look first at the latter of these, the ‘terminal decline’ of Wednesbury (British Civilian case). The court of Appeal in this case went as far as saying that proportionality should banish the Wednesbury approach, but left it up to the House of Lords to do so. Lord Justice Dyson stated “we have difficulty in seeing what justification there now is for retaining the Wednesbury test, but we consider it not for the court to perform burial rights…both tests continue to co-exist”. Certain proportionality advocates such as Harrison (2003) and Lord Cooke (1986) have gone to an even more extreme pole saying that Wednesbury was wrongly decided in it’s day, though no official overturning has taken place. In their article “Beyond Wednesbury: substantive principles of administrative law”, in which they propose a review of the administrative system, Lester and Jowell (1987) opine that Wednesbury is “confusing and tautologous… It allows courts to interfere with decisions that are unreasonable, and then defines an unreasonable decision as one which no reasonable authority would take”. Thus, this rejects even the compromise of a bifurcation, as the Wednesbury test would be left unreformed, with all these criticisms in tow.
In their book ‘Administrative Law’, Wade and Forsyth (2004, pp.371-372) discuss the inevitable ‘coup de grace’ that looms over the Wednesbury approach, though has not yet fallen “despite calls for it from very high authorities”. Of course with such high pressure here it is obvious why the area is seen to be in a ‘muddle’, with some cases, (such as the Indian case of State of Madhya Pradesh and Others v. Hazarilal) stating that “Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality”, though this of course is a large overstatement of our law at present. In his paper “The Rise and Ruin of Unreasonableness”, Andrew Le Sueur (2004) is quick to speculate how the Wednesbury approach has survived this long. He says “we have heaped too much on the reasonableness test… and we have used it to carry out tasks it was never intended to deal with”, suggesting the courts have adapted the test to mean anything we need it to in order to reach a decision. In his article ‘Proportionality, Deference, Wednesbury’ for the New Zealand Law Review, Michael Taggart (2008) provides arguments in favour of a complete adoption of the proportionality principle. He firstly acknowledges the attractiveness of attaining ‘conceptual unity’, removing the uncertainty brought to the table by bifurcation, thus allowing transparency. Another thing conceded is a ‘fresh start’ being desirable, in order to break free of the ‘constitutional straitjacket’ of Wednesbury. A big argument for the proportionality test is the aligning of our Administrative law with other European jurisdictions and EU law, in which the proportionality test finds its roots.
Now looking at arguments against a takeover of the proportionality approach, I will note the concession in a later edition of Wade and Forsyth’s ‘Administrative law’ (2009), that “where a matter falls outside the ambit of the 1998 Act, the doctrine is still regularly relied upon by the courts”, as in the aforementioned Brind case This is very important to note as though it is easy to fall in the trap of a ‘fifty/fifty’ divide between cases to do with rights that will apply proportionality and those to do with public wrongs that will apply Wednesbury, the distribution is not this way. As was stated in the case of R v Somerset County Council, ex parte Dixon “Public law is not at base about rights… it is about wrongs – that is to say misuses of public power”, and as Taggart (2008) rightly states “the current enthusiasm for rights-based judicial review can obscure that fact”. That is to say that though there is a current ‘trend’ of rights-based cases that tend to have the proportionality principle applied to them, it has to be borne in mind that this area of administrative law is aimed at combatting and remedying public wrongs, an area in which the Wednesbury test is still readily applied. In his article “Governmental rejections of Ombudsman Findings: What Role for the Courts?’ Varuhas (2009) makes some significant arguments for the preference of the Wednesbury approach. Focusing once again on the ‘extent at which courts should look at the substance of decisions’ angle, Varuhas reminds us that the Wednesbury approach keeps the discretion with the minister, rather than promoting an unjustified shift to an ‘undesirable state of affairs’ where courts are allowed large amounts of discretion to scrutinise the substance of a decision. In a similar vein he states that the “political accountability regime established in the Act is not undercut by an over-active judicial role”. This clearly states that there isn’t yet sufficient justification for the amount of discretion that a complete takeover of proportionality would afford the judiciary. Going back to look at Taggart’s (2008) article, he gives a similar list of arguments for the preservation of Wednesbury, chiefly reminding us of the lack of justification to an increase in scrutiny, and that judicial discretion that (in his opinion) is already too much, is constrained.
The final angle to look at is the idea of a bifurcatory approach, with both approaches possibly being used harmoniously, depending on the grounds of the claim. Before discussing the perks of a bifurcation, I will make reference to the case of R (Alconbury Developments Ltd) v Secretary of State where the keeping of the tests ‘in separate compartments’ is said to be ‘unecessary and confusing’, and, though both tests are currently used by courts, with some overlap, it was suggested that the difference between the approaches is much less than is sometimes though and a similar outcome would be found whichever of the two is applied. The best way to describe the bifurcatory approach is to make reference to Taggarts (2008) ‘Rainbow of Review’. This has one side (rights) being covered by the proportionality test, and the other side (public wrongs) being covered by the unreasonableness test. Of course those in favour of proportionality are essentially suggesting that the proportionality test should also cover the public wrongs side, however, as stated previously, this shift has not been justified and will provide too much judicial discretion.
That taken into account, it would seem that the obvious solution could be a line drawn down the middle separating categorically cases brought on rights and those brought on public wrongs, providing transparency and certainty to those bringing the case, and to the lawyers knowing which approach will be taken. This is partly keeping status quo, as this is essentially what is done now, with no evidence of proportionality creeping into wrongs cases, however it is just a simple clarification of the murky ‘rights’ side, where it was ambiguous as to which test could be used. As previously stated, however I do not feel this will have an effect on the outcome of these cases, as stated in Alconbury. That said, caution is required here, as with proportionality, by it’s very nature involving the courts prescribing alternatives to the decision made could very easily cause a descent into a ‘merits review’-esque approach, which is contrary to the separation of powers doctrine. An interesting point is put forward in Rivers’ (2006) article ‘Proportionality and variable intensity of review’ that, knowing that the judicial role is to secure legality rather than correctness, in order to avoid deference, it is better to state that your are testing for ‘unproportionality’ rather than prescribing what would be a proportional remedy.
Conclusion
Though we came to the conclusion that a bifurcatory approach seems to have the most merits, with the obvious bonus of certainty, the problem of exponential discretion is avoided by limiting the proportionality test to rights-based cases, allowing a balance of collective and private interests. Looking now at a quote from Leyland and Anthony’s (2008) ‘Textbook on Administrative Law’ stating that proportionality, ‘”in contrast to irrationality is often understood to bring courts much closer to reviewing the merits of a decision”. This shows that merits are only looked at to a certain extent without breaching the separation of powers doctrine. Should there be a call for a complete fresh start, a completely inalienable and moral proportionality test needs to be developed, or there will always be call for the traditional Wednesbury test.
Bibliography
Articles
- Varuhas, J. 2009 “Governmental Rejections of Ombudsman Findings: What Role for the courts?” Modern Law Review 72(1) p.102
- Harrison, R 2003 “The New Public Law? A New Zealand Perspective” Public Law Review 41 p.56
- Jowell, J. & Lester, A. 1987 "Beyond Wednesbury: Substantive Principles of Administrative Law" PL 368 p.372
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Le Sueur, A. 2004 “The Rise and Ruin of Unreasonableness” Judicial Review 10(1) p.32.
- Taggart, M 2008 “Proportionality, Deference, Wednesbury” New Zealand Law Review p.423
- Rivers, J. 2006 “Proportionality and variable intensity of review” Cambridge Law Journal 65 p.174
Books
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Wade, W. & Forsyth, C. 2004 “Administrative Law” 8th ed, Oxford University Press, London
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Wade, W. & Forsyth, C. 2004 “Administrative Law” 10th ed, Oxford University Press, London
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Leyland, P. & Anthony, G. 2009 “Textbook on Administrative Law “ 6th ed. Oxford University Press
Cases
- Council of Service Unions v Minister for the Civil Service [1985] AC 374
- R v Port Talbot Borough Council, ex parte Jones [1988] 2 All ER 207
- Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] 1 KB 223
- R (on application of Association of British Civilian Internees) v Secretary of State for Defence [2003] EWCA Civ 473
- R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26
- R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4
- State of Madhya Pradesh and Other v Hazarilal [2008] 3 SCC 273
- R v Somerset County Council, ex parte Dixon [1997] JPL 1030
- R (Alconbury Developments Ltd) v Secretary of State [2001] UKHL 23
Blogs
- Tarun, J. 2010 “Wednesbury Principles of Unreasonableness: The Law Revisited” Legal Perspectives <http://legalperspectives.blogspot.co.uk/2010/05/wednesburys-principles-of.html> [Accessed 14-21 April 2012]