Wednesbury Unreasonableness and Proportionality Tests

This paper compares and contrasts the approaches of Wednesbury unreasonableness and the principle of proportionality in judicial review proceedings involving actions of the executive and other administrative units of the state. It also discusses their application to the dispute between the traders at Larkford town and the local authority.

Wednesbury unreasonableness and proportionality tests 1
Name of Student
Name of Institution
Name of Instructotor
TOPIC II - PRINCIPLES OF JUDICIAL REVIEW
(Wednesbury unreasonableness and the principle of proportionality)
Compare and contrast the approaches of (a) Wednesbury unreasonableness and (b) the
principle of proportionality to this situation.
Which approach would you expect the court to adopt, and why?

Wednesbury unreasonableness and proportionality tests 2
Introduction
The principles of natural justice and respect to human rights and dignity requires any
individual who feels aggrieved by the decision of state actors should be capable of getting
redress before an impartial and independent court of law. This is generally referred to as judicial
review. The grounds for any attempt on judicial review should be clearly set out. There are two
standards that have been developed under common law to deal with the issue of review. The
standards are the test of proportionality and test of Wednesbury unreasonableness. In UK, there
have been several debates whether to abolish the Wednesbury unreasonableness test in favor of
the proportionality test.1 This paper discusses the major variances and any existing similarities
between the two principles and their application to the dispute between the traders at Larkford
town and the local authority.
The Wednesbury unreasonableness principle approach
The decision of the Supreme Court of Pakistan in Dr Akhtar Hassan case2 stated and
recommended the Wednesbury unreasonableness test as the single and applicable principle and
standard to be applied in judicial review proceedings involving actions of the executive and other
administrative units of the state. The grounds on which judicial review may be sought include
illegality, irrationality and procedural impropriety.3 This test applies a logic which allows courts
to interfere with any decision that seems to be unreasonable as well as defining an unreasonable
decision as that which no authority that is reasonable would in such circumstances take. This test
has received too much criticism, making its application in judicial review not suitable. In UK, the
1 Feldman, David, ed. English public law. Vol. 2 (English Public Law, 2009)
2 (2012) SCMR 455
3 Carroll, Elizabeth. "Wednesbury Unreasonableness as a Limit on the Civil Liability of Public Authorities’
(2007)" Tort Law Review 15: 77

Wednesbury unreasonableness and proportionality tests 3
test of Wednesbury unreasonableness has been reserved to cases that do not touch on human
rights. Applying the Wednesbury unreasonableness test to the Larkford situation would
categorize the decision of the local authority as unrealistic and irrational.
The principle of proportionality
The proportionality test has been recognized but its applicability has been restricted to
handling judicial review involving challenges on legislations that are said not to be in conformity
with the constitution.4 This was the declaration of the Pakistan Lahore High court in the case of
DG Cement.5 The principle of proportionality advances the idea that there ought to be a more
reasonable interrelation between the idea sought to be achieved or realized and the mode
employed in its realization.
The principle of proportionality has been widely used in UK courts when faced with a
review on state actions or decisions as well as in determining whether certain legislations offend
EU law. The decision in Smith and Grady v UK6 highlighted a distinction between the
proportionality test and the Wednesbury unreasonableness test. After this case, UK courts have
resorted to applying the test of proportionality especially on cases touching on the Human
Rights.7 Human beings have the right to assemble, associate and the freedom of conscience.
These are contained under the Human Rights Act and therefore, the proportionality test is
applicable to the Larkford situation.
4 Oliver, Dawn. Constitutional reform in the United Kingdom (Oxford University Press, 2003)
5 (2013) PLD Lahore 693
6 (1999) 29 EHRR 493
7 Human Rights Act 1998

Wednesbury unreasonableness and proportionality tests 4
The test was formulated by the Privy Council in De Freitas v Permanent Secretary of
Ministry of Agriculture, Fisheries, Lands and Housing. It was stated that in making a
determination whether a decision is arbitrary, the court should consider the following factors:8
1. The objective of the legislation is so vital to call for the limitation of a fundamental right
and freedom that is guaranteed in the constitution,
2. The measures and plans available for achievement of the objectives of the legislation, and
3. The method applied in impairing the fundamental rights and freedoms are no longer
necessary in attaining the objective.
The House of Lords have endorsed the proportionality test in their decision in Daly v
SSHD.9 The test has been adopted and used widely in judicial review cases; even those that fall
outside the Human Rights Act 1998. Two reasons have been identified as the causation for the
wide application of the proportionality test. The first reason is that the test is said to have a
clearer and transparent framework than that of Wednesbury unreasonableness test. Secondly, the
proportionality test is said to versatile and is capable of varying judicial review based on the
circumstances and context of each and every case.10 In R (Daly) v Secretary of State for the
Home Department, Lord Cooke stated that:
‘’I think that the day will come when it will be more widely recognized that
Wednesbury was an unfortunately retrogressive decision in English
administrative law, insofar as it suggested that there are degrees of
unreasonableness and that only a very extreme degree can bring an
8 Craig, Paul P. Public law and democracy in the United Kingdom and the United States of America (Oxford
University Press, 2009)
9 (2001) 2 WLR 1622, para [27] (Lord Bingham)
10 Barnett, Hilaire. Constitutional & administrative law (Routledge, 2011)

Wednesbury unreasonableness and proportionality tests 5
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.’’
Applying the proportionality test to this situation would be more effective as it will unearth and
conclusively resolve the underlying problem in Larkford town that prevented the local authority
from issuing the license for the Easter celebrations.
The similarities between proportionality test and Wednesbury unreasonableness in their
application to Larkford situation
The similarities between the two tests have been the subject of varied academic as well as
judicial discussions. Both tests require the courts to consider the balance and weight of the
decision complained of. There has been a debate on whether the Wednesbury unreasonableness
test should be replaced with the test of proportionality. In the case of R (Association of British
Civilian Internees (Far East Region)) v. Secretary of State for Defence,11 the court was of the
opinion that the unreasonableness test is outdated and ought to be replaced with the
proportionality test or buried altogether. However, the Supreme Court declined to do away with
the test in the case of Keyu v. Foreign Secretary12, holding that the move to proportionality
would have occasioned dire consequences. Domestic courts have the discretion of applying
either of the tests to arrive at the same or similar decision. This makes the distinction between the
11 (2003) QB 1397
12 (2015) 3 WLR 1665

Wednesbury unreasonableness and proportionality tests 6
two different tests blurred. The court would therefore decide which approach to adopt in
handling the Larkford situation as both are likely to yield similar results.
The differences between the application of proportionality test and Wednesbury
unreasonableness
Proportionality test is said to be more detailed in requiring the court to make a
determination whether there has been a balance struck the rights of an individual and public
interest or more specifically the interest of the community. Wednesbury test is concerned with
the procedure and process employed in the reasoning that led to the decision subject to the
review while the proportionality test puts more emphasis on the outcome of the decision.
The other major difference between the two tests is on the burden of proof. While
Wednesbury unreasonableness test puts the burden of proof on the claimant; requiring the
claimant to prove that the decision subject to the judicial review proceedings is unreasonable, the
proportionality test shifts the burden of proof on the state to prove and show that the decision is
proportionate and does not in any way interfere with the claimant’s convention right.13
The test of Wednesbury unreasonableness is considered as a general standard employed
in the review of an administrative decision. In the case of Associated Provincial Picture House
Ltd v Wednesbury Corporation, it was stated by Lord Greene MR that a decision is considered to
be substantively unreasonable if the conclusion was so unreasonable in the circumstances such
that no authority considered to be reasonable could in any chance arrived at it. Therefore,
Wednesbury test applies to cases where the decision complained of is so notorious and defies
logic and other acceptable moral standards such that no reasonable and sane individual faced
13 Weatherill, Stephen. Law and integration in the European Union (Oxford University Press, USA, 2005)

Wednesbury unreasonableness and proportionality tests 7
with the same facts or situation would have made such a decision. It is said to be applicable
where the decision complained of does not involve a conventional right.
The proportionality test on the other hand received more attention after the enactment of
the Human Rights Act 1998 which incorporated into the domestic law, the provisions of ECHR.
Proportionality test is therefore applicable mostly in cases where issues of infringement on
human rights and freedoms are alleged.
Applicability of the tests to the facts in Larkford town
Larkford is a hypothetical and small town in England. Every year on Easter Monday it
holds a Spring Fair in the town to celebrate Easter. The fair includes an Easter parade and has
become quite well-known, attracting visitors and tourists from surrounding areas. Traders at the
fair require a licence from the local authority, which has a statutory power to grant or refuse
licences “as it sees fit.” The local authority has however declined to give a license since the
increase of population and rural- urban migration has led to the inhabitation of the town by a few
individuals who do not practice Christianity. The market traders are aggrieved by the decision of
the local authority and seek judicial review of the authority’s decision.14
Application of the proportionality test would require that there exists a nexus that is
reasonable, between the objective intended to be achieved by the decision and the manner used
in achieving the said objective. Proportionality has been widely held to be more desirable in
cases that are rights based. In this scenario, there are competing rights; the right to conscience,
association and freedom of movement, the right to practice and advance culture or religion
together with persons of the same culture or religion and consumer rights. These are rights whose
14 Tushnet, Mark. Weak courts, strong rights: judicial review and social welfare rights in comparative constitutional
law (Princeton University Press, 2009)

Wednesbury unreasonableness and proportionality tests 8
limitation would call for judicial review of the said decision. The objective of the local authority
was to ensure that sections of the population of the town are not left out during the Easter
celebrations. To achieve their objective, they decided not to license the activity. The action of the
local authority is not proportional to the objective of and the outcome of their action.
Proportionality test is said to be more detailed in requiring the court to make a
determination whether there has been a balance struck the rights of an individual and public
interest or more specifically the interest of the community. The non Christians who have recently
migrated into the town are very few and form the minority population of the town. Any decision
made should have been in consideration and to the benefit of the larger population who are
considered to be the public whose interests public bodies need to act on in their interest and
benefit.
On the other hand, a consideration of the unreasonableness test reveals that no reasonable
and sane person faced with similar facts and situation would arrive at a similar decision. The
decision not to grant a licence is very unreasonable in the circumstances and can be subject to
judicial review. The authority argues that they are elected to make decisions on behalf and for
the benefit of the people but the said decision is unreasonable and not for the benefit of the
people they represent.
The desirable test that the court is likely to adopt
Considering the two tests, the proportionality tests is the most appropriate in the
circumstances and would likely be adopted by the court during the judicial review proceedings.15
The proportionality test would be adopted by the court mainly because the grievances of the
15 Fenwick, Helen. Supperstone, Goudie & Walker: judicial review (LexisNexis, 2010)

Wednesbury unreasonableness and proportionality tests 9
people of Larkford are Human Rights related. The test of proportionality has been stated in
various judicial review proceedings and other academic discourses to be more appropriate in
cases where there is an allegation of infringement of fundamental rights and freedoms contained
under the Human Rights Act. The proportionality test considers whether the decision of the
public body was made in the interest of the community and more specifically those of the
majority.
Proportionality test is said to be more detailed in requiring the court to make a
determination whether there has been a balance struck the rights of an individual and public
interest or more specifically the interest of the community. The non Christians who have recently
migrated into the town are very few and form the minority population of the town. Any decision
made should have been in consideration and to the benefit of the larger population who are
considered to be the public whose interests public bodies need to act on in their interest and
benefit.
In conclusion therefore, the two tests are the main guiding principles used in checking
actions and decisions of public authorities. No test should be abolished as they can be used
interchangeably in judicial review proceedings. In this scenario therefore, the people of Larkford
are likely to triumph in judicial review and have the license issued.

Wednesbury unreasonableness and proportionality tests 10
Bibliography
Books
Oliver, Dawn. Constitutional reform in the United Kingdom (Oxford University Press, 2003)
Craig, Paul P. Public law and democracy in the United Kingdom and the United States of
America (Oxford University Press, 2009)
Barnett, Hilaire. Constitutional & administrative law (Routledge, 2011)
Weatherill, Stephen. Law and integration in the European Union (Oxford University Press,
USA, 2005)
Fenwick, Helen. Supperstone, Goudie & Walker: judicial review (LexisNexis, 2010)
Tushnet, Mark. Weak courts, strong rights: judicial review and social welfare rights in
comparative constitutional law (Princeton University Press, 2009)
Journals
Feldman, David, ed. English public law. Vol. 2 (English Public Law, 2009)
Carroll, Elizabeth. "Wednesbury Unreasonableness as a Limit on the Civil Liability of Public
Authorities’ (2007)" Tort Law Review 15: 77
Table of cases
Dr Akhtar Hassan case (2012) SCMR 455
DG Cement (2013) PLD Lahore 693
Smith and Grady v UK (1999) 29 EHRR 493
Daly v SSHD (2001) 2 WLR 1622, para [27] (Lord Bingham)

Wednesbury unreasonableness and proportionality tests 11
R (Association of British Civilian Internees (Far East Region)) v. Secretary of State for
Defence [2003] QB 1397
Keyu v. Foreign Secretary (2015) 3 WLR 1665
Legislations
Human Rights Act 1998