Summary Wednesbury versus Proportionality Essay Plan
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Administrative Law
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University College London (UCL)
First Class Administrative Law Notes that can be used to frame any essay question they could throw at students.
These notes are the product of highly extensive further reading of every article and case note for the Wednesbury versus Proportionality topic (via Westlaw and Lexis Nexis as well as o...
Thesis
• I submit that making a “choice” is not simply unnecessary, but also premised on fallacious grounds.
• I agree that Wednesbury its in its original conceptualisation should be discarded
• Proportionality and 'modified Wednesbury', which I argue is the only understanding of Wednesbury,
are not mutually exclusive, but rather have overlapping elements and condense down into the same
fundamental principles on a “sliding scale of intensity”.
• I propose a new, more nuanced framework that does not sit comfortably within the category of
bifurcation or unification.
• I posit that proportionality should serve as a single, unified standard review to consolidate, organise,
and unify the shared elements between the two tests in hopes of formulating a more structured
framework for substantive judicial review but supplemented by a separate “badge of
unreasonableness”.
Two Heads of Review
• The tests of Type 1 Wednesbury unreasonableness (WUT1) in its traditional sense and proportionality
review (PR) are used to judge the lawfulness of administrative decision makers' exercise of discretion
• The former standard involves questioning whether an administrative action or decision was “so
unreasonableness that no reasonable authority would ever have come to it” (Associated Provincial
Picture Houses Ltd [1948] (Lord Greene MR). This doctrine was furthered by Lord Diplock in GCHQ
where it was held that WUT1 “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”.
• Contrastingly, following the seminal cases of Daly and Bank Mellat, the test of proportionality involves
four distinct stages; namely: “(i) whether the objective of a measure is sufficiently important to justify
the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii)
whether a less intrusive measure could have been used; and (iv) whether a fair balance has been
struck between the rights of the individual and the interests of the community.”
Bifurcation: An Overly Rigid Constitutional Division
• As noted in Kennedy by Lord Mance “'the common law no longer insists on the uniform application of
the rigid test of irrationality once thought applicable under the so-called Wednesbury principle”.
• Indeed, traditional judicial review in English law draws a bifurcation between WUT1 and PR. The
seminal bifurcated model lies with Taggart’s “rainbow of review”, as adhered to by Lord Steyn in Daly.
His theory posits that proportionality is the appropriate test whenever qualified rights protected by
the HRA 1998 are engaged. Article 2 “right to a fair trial” and Article 6 “right to family life” are two
common rights within the HRA which will certainly suffice to involve PR. Outside of HRA cases, WUT1
applies, acting as a residual “safety net”.
• Jeff King has also posited his own version of bifurcation wherein proportionality testing is adopted in
cases that “challenge a pattern of administrative conduct which creates conspicuous administrative
unfairness” including cases where more intensive scrutiny is needed or where there is a supposed
violation of legitimate expectations, and WUT1 applies to the rest of cases.
• Finally, Dr Tom Hickman has suggested that proportionality should be applied in four types of cases
where WUT1 is not sufficiently protective: individual rights cases, discrimination cases, legitimate
expectation cases and penalty cases.
Arbitrary Distinction
Pure Wednesbury or Pure Proportionality?
• There is considerable scholarship which seeks to “choose” pure PR as the sole head of review to
resolve the above uncertainty.
• PR is more intensive: Notably, Craig, Lord Steyn in Daly and Lord Bingham in Begum [2006] submit
that PR in Bank Mellat offers a more intensive and searing rights protective framework for judicial
review because courts are directed to analyse the "normative content of the vindicated rights" and
"the relative weight accorded to competing public interests "and considerations rather than merely
, deciding whether a decision is “rationally justified”. Its high degree of scrutiny was witnessed in
Miller (No.2) where, in applying PR to scrutinise the exercise of prerogative powers, it was held that
despite the overall objective of ushering in a new legislative agenda was satisfactory, the government
failed to strike a fair balance given that it was of a unjustified length.
• WUT1 is a contrastingly weaker form of scrutiny: As Dyson LJ professed in Far East Region [2003],
prima facie there appears little justification for retaining Wednesbury unreasonableness for two
reasons. First, per Jowell, Lester and Burkett, Wednesbury poses a relatively undemanding question
on the decision-maker given the due deference to the judgment of elected representatives the courts
will show when dealing with cases concerning the formulation of political and economic policy. The
disparity between PR and WUP2 is showcased in ex Parte Smith [1996]and Smith and Grady v UK
(1999). The subject of these cases was the dismissal of a soldier from the armed forces on the
grounds of their homosexuality. In the former case, the WUT1 test was applied. Based on this test,
the policy was held to be lawful in its qualification of the soldier's right to respect for private life
(Article 8, ECHR) given that ensuring morale, discipline and unit cohesiveness were within the range of
reasons open to the "reasonable" decision-maker. In contrast, the ECHR, in applying PR, asked
whether the policy was "necessary in a democratic society". The court held that, while it may "answer
a pressing social need", the abrogation of the human right was disproportionate because a "code of
conduct governing relationships between military personnel", regardless of their sexuality, would
have been enough to achieve the government's objective (Elliot [2001]).
• WUT1 is an imprecise test: Second, per Craig, irrationality is ‘imprecise’ due to the lack of a clear test.
First, the principle "so unreasonable that anybody who views the decision will conclude it as
unreasonable” shrouds in fog what is to be considered by the court. Inconsistency in application
exemplifies this view. Take the cases of Rotherham and Keyu. In Rotherham, normative values such as
equality were considered by Lord Sumption; but in Keyu, Lady Hale came up with a list of criteria to
balance, including the cost and benefits of the policy, that must be satisfied before unreasonableness
succeeds. Thus, the yardstick used to measure whether a decision is “irrational/rational” is
inconsistent, thereby rendering it lacking in structure and falls foul to a lack of certainty.
• On the basis, pure PR's stricter form of scrutiny should be retained as the general ground of review,
and WUT1 discarded. While I do not doubt the persuasiveness of this analysis, it is myopic in its
evaluation of Wednesbury. Indeed, I agree WUT1 should be discarded as a “pure ground of review”,
but a second type of ‘modified Wednesbury’, WUT2, is not only a stronger challenge, but also very
similar to PR in many respects. I submit that PR and WUT2 are not “competing forms of review”, but
both operate on sliding scales their intensity of review varies in much the same way. I seek to
demonstrate that while proportionality should be retained, WUT2 should at the very least be
absorbed into the new test.
A Sliding Scale of Review: Modified Wednesbury and Proportionality Review
Sliding Scale for Sub-Wednesbury
• Considerations of Weight: Lord Mance in Kennedy and Craig
o Begbie (2000) Laws LJ redefined the Wednesbury principle as “a sliding scale of review more
or less intrusive according to the nature and gravity of what is at stake”.
o Anxious Scrutiny as articulated in Bugdaycay and Smith, only relevant considerations should
be considered, and irrelevant ones discarded. Moreover, an unreasonable decision is one
where a weak reason was given undue weight in the decision-making process or a strong one
insufficient weight.
o I submit that WUT2 is the only way rationality can be understood because, following Craig,
“if weight was [always] off bounds, if it really were heretical to consider it, then there would
be no reasonable review, since it would have no content once the court had adjudged the
relevancy and purpose issues.” Indeed, balancing is almost inevitable in public decision-
making.
o "Brind (1991), involving an alleged restriction on free speech.23 Lord Bridge himself did not
say anything about “anxious scrutiny”. Rather he spoke of the need, where “fundamental
human rights” are at stake, to “start from the premise that any restriction requires to be
justified”, and that “nothing less than an important competing public interest will be
sufficient to justify it”.24 That in modern terms seems very like the language of
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