Values and Variable Intensity of Wednesbury Review

This post follows on from my post on “Jurisdictional Error and Administrative Law Values“…

There have been many formulations of Wednesbury unreasonableness over the years. For present purposes, however, we can take Lord Greene MR’s description – “a decision…so unreasonable that no reasonable authority could ever have come to it” – as encapsulating the essence of the concept. It is clear, however, that this apparently monolithic concept contains nuances: “in fact the courts, while broadly adhering to the monolithic language of Wednesbury, have to a considerable extent in recent years adopted variable standards of review”.[1] My argument here is that these variations depend on administrative law values.

So-called “super­-Wednesbury” cases, where the standard of review is dialled down, such that judicial review is less exacting, have tended to involve democratically legitimate decision-makers and/or complex areas of regulation. Respectively, the value of democracy – ensuring respect for the electoral mandates of the decision-makers in question – and good administration – avoiding undue interference by non-expert courts in matters beyond their ken – are engaged.

Two well-known examples are Nottinghamshire County Council v Environment Secretary[2] and R v Environment Secretary, ex parte Hammersmith and Fulham London Borough Council.[3] Both cases involved a procedure in which ministerial decisions on certain local authority finance matters were to be approved by a resolution of the House of Commons. The value of democracy was greatly engaged by this process, involving as it did the decision of an elected official and subsequent approval by popularly elected representatives. The local authorities sought to impugn the expenditure guidance issued by the Minister pursuant to this procedure. They were unsuccessful, because the value of democracy weighed heavily on the judges, who applied a less exacting than usual standard of review. The point was made most clearly in the Hammersmith and Fulham case, by Lord Bridge of Harwich:

The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take and it is in the political forum of the House of Commons that they are properly to be debated and approved or disapproved on their merits.[4]

Where complex subject-matter is at issue, courts again demonstrate great reluctance to intervene with administrative decisions. In R v Cambridge Health Authority, ex parte B,[5] a young child was grievously ill with leukaemia. Her doctors thought further treatment would be unjustified, in view of the suffering it would cause and the low likelihood of success. Her father sought the opinion of other experts, who suggested that an aggressive course of treatment, if followed, might have a 20% chance of success. But the treatment was available only in the private sector, at high cost. The health authority was unwilling to fund the treatment. Although Laws J had quashed its decision to refuse to fund at first instance, the Court of Appeal allowed an appeal by the health authority. One particularly important aspect of Sir Thomas Bingham MR’s reasons for allowing the appeal related to the allocation by the health authority of its scarce resources: “Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients”,[6] judgments best made by administrative decision-makers, not the courts. Considerations of good administration were plainly present in Sir Thomas Bingham MR’s mind: “it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B. then there would be a patient C. who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration”.[7]

To the same effect is a more recent case, R (Campaign against the Arms Trade) v International Trade Secretary, involving the legality of the licensing of sales of arms to Saudi Arabia, which were suspected of being used in breach of international humanitarian law.[8] This decision “involved balancing a series of complex and competing factors”, which “are paradigm matters for evaluation and decision by the Executive…”, relating to  “an area where the Court is not possessed of the institutional expertise to make the judgments in question” and thus “should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgements”.[9]

In “super-Wednesbury” cases, the result of these considerations is a reduction in the available grounds of review, as in the Campaign against the Arms Trade case, where the decision was subject to the scrutiny of the High Court but with “a suitable recognition of the institutional competence of those charged with the decision-making process”.[10] Similarly, in R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council, “since the statute has conferred a power on the Secretary of State which involves the formulation and implementation of national economic policy …, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity”.[11] Neither good administration nor democracy would be served by the application of the ordinary Type 2 Wednesbury standard.

By contrast, in cases involving important rights or interests, the standard of review will be more demanding, the so-called “sub-Wednesbury” standard. The locus classicus is R v Secretary of State for the Home Department, ex parte Bugdaycay[12] – an immigration case –but the best expression of the more demanding standard is R v Ministry of Defence, ex parte Smith:

The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.[13]

This formulation speaks for itself. What is significant for present purposes is that the fact that the “sub-Wednesbury” standard is triggered by the presence of an important right or interest, and that its intensity is influenced by the extent of the interference with the right or interest. Rule of law considerations are plainly not far from the surface: where an individual’s dignity or autonomy is engaged by an administrative decision, the standard of review is more exacting; more is required from the decision-maker “by way of justification”.

Wednesbury thus varies in intensity. Rule of law concerns prompt a more intense standard of review in cases involving important rights or interests, whereas good administration and democracy concerns justify a less exacting standard of review in cases involving complex decisions and/or democratically legitimate decision-makers.

[1]Wednesbury”, in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (Oxford 1998), at pp. 186-187.

[2] [1986] AC 240.

[3] [1991] 1 AC 521.

[4] [1991] 1 AC 521 at p. 597. In the Nottinghamshire case, Lord Scarman said:

We are in the field of public financial administration and we are being asked to review the exercise by the [Minister] of an administrative discretion which inevitably requires a political judgment on his part and which cannot lead to action by him against a local authority unless that action is first approved by the House of Commons.

[1986] AC 240 at p. 247.

[5] [1995] 1 WLR 898.

[6] Ibid. at p. 906.

[7] Ibid. at p. 906.

[8] [2017] EWHC 1754 (Admin).

[9] Ibid. at para. 209.

[10] Ibid. at para. 209.

[11] [1991] 1 AC 521 at p. 597, per Lord Bridge. See also R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240

[12] 1987] AC 514 at 531, per Lord Bridge (see also R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696 at pp. 748-749, per Lord Bridge,

[13] [1996] QB 517 at 554, per Sir Thomas Bingham MR (quoting, with approval, the submission of David Pannick QC. See also Craig, “Judicial review and anxious scrutiny: foundations, evolution and application” [2015] Public Law 60, but note the comments of Lord Sumption in Pham v. Home Secretary [2015] 1 WLR 1591, at para. 106, describing the Smith approach as “in substance a proportionality test, but with the important difference that the court declined to judge for itself whether the decision was proportionate, instead asking itself whether a rational minister could think that it was”. See also Elliott, “The Human Rights Act 1998 and the Standard of Substantive Review” [2001] Cambridge Law Journal 301, at p. 305, suggesting that the “defining feature” of Wednesbury review is that a court “may simultaneously conclude that a decision which infringes an individual’s human rights is incoherent and lacking in adequate justification, but that it is not unlawful”; (R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, at para. 32, per Lord Cooke of Thorndon).

This content has been updated on November 11, 2017 at 12:03.

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