Judicial Review (4)

In this lecture we focus on substantive judicial review in the guise of (a) so-called ‘Wednesbury
unreasonableness’ and (b) proportionality. Note that an essential element in all this is the contemporary
elaboration of rights-based review…

Types of review

1) Procedural Review: Requirements of independent tribunal/right to be heard/right to fair trial etc.

2) Process Review: Relevant and Irrelevant considerations, Fettering of Discretion: Wednesbury case.

Substantive review = If both Process and Procedural requirements are fulfilled, can the courts deny the
legitimacy of the end product? If the courts continue to veer down this route then we will have a problem of
government by judges which parliament never intended. This also fits uneasily with the whole idea of judicial
REVIEW as the concept is not about making decisions but rather, reviewing bad ones which have been made.
This is a very sensitive constitutional issue.

Common law has had a history of substantive review but it was seen to be very limited. Things have moved
along however since the decision in Wednesbury.

1. ‘Wednesbury unreasonableness’

Here we are focusing on the evolution of ‘Wednesbury unreasonableness’ as

(1) a discrete ground of review: a ‘safety-net’; and latterly,
(2) a more flexible concept.
Original conception: expression of judicial restraint (or ‘deference’)

Lord Greene (again from Wednesbury):

‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could
ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind
would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that
kind. [The] proposition that the decision of the local authority can be upset if it is proved to be unreasonable,
really [means] that it must be proved to be unreasonable in the sense that the court considers it to be a decision
that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing
altogether. If it is what the court considers unreasonable, the court may very well have different views to that of
a local authority on matters of high public policy of this kind…’

Notice this is a very restrained view of judicial review,

- (1) It is a narrow ground of substantive review
- (2) Strong declaration of judicial restraint/deference
- The court will intervene with the decision if so unreasonable that no reasonable authority in that
position could have made that decision. That would require “something overwhelming”. This is
deliberately different from the test of reasonableness that we deal in tort – must be so unreasonable
that no PA would have done that.
 - Taking into account that different authorities in the country may take different views (either
mainstream or campaigned about in local elections) = a “margin of appreciation”, this is only which
reasonable people can disagree and we are going to protect that.
- If it was a test what courts consider as unreasonable, the courts will have different views with local
authorities = this is not right, intervening with parliament’s intention and local authorities’ discretion –
must be WHOLLY unreasonable.

Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (Lord Diplock):
Essentially a restatement of what Lord Greene said –
‘By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness"… It
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. Whether a
decision falls within this category is a question that judges by their training and experience should be well
equipped to answer, or else there would be something badly wrong with our judicial system.’
Later expansion: the Wednesbury ‘grid’
Yet, in a development echoing that of procedural fairness (see lecture 7), we see ‘Wednesbury
unreasonableness’ becoming (a) more expansively applied (fewer ‘no-go’ areas) and (b) more variable in terms
of intensity of review.
- the courts begin to say that what is Wednesbury unreasonable can itself vary from context to context
and there are some situations where we will look much more closely than others = there will be some
cases where the test still remains as irrationality, or under that rubric of “so unreasonable that no PA
can do it” – the courts are approaching that rather liberally and ever more likely to invoke it.
- The rubric does not change, but the way it is applied has changed. DO NOT JUST GIVE THE ORIGINAL
STUFF ABOUT WEDNESBURY – must show the developments (in the way it has been applied)
Nottinghamshire CC v Secretary of State for the Environment [1986] AC 240
Here, the LA was complaining about the way in which the central government was allocating money up and
down the country. The courts refused to question the government’s decision. Here, the HL refers back to
Wednusbury as a doctrine of judicial restraint.
The case refers to money and the HL said this is a complicated financial allocation; the courts do not go to these
areas. Also for statutory areas: as long as parliament approves of it, no reason for us to go into that.
R. v. Secretary of State for the Home Department ex p. Bugdaycay [1987] AC 514

The issue here is really whether courts can develop CL doctrines to better protect fundamental rights. Note that
this is before the HRA. Indeed, Bugdaycay really highlights the courts willingness to do just that, and this is a
trend we see continuing up to today. This is a particularly important development:

(1) The CL may protect certain areas not covered by the HRA or provide a different remedy.
(2) Also, we cannot assume the continued existence of a HRA. After all, the conservatives went into the last
election campaigning to abolish the HRA. If that were the case, clearly the CL protection would be vital.

In this case:
 - Someone from Uganda and who is applying for asylum. The applicant claimed that he was in fear of
death/prosecution if he were to return (HO refuses hi sapplication). He claims that the government did
not look closely at his case, and that no reasonable authority could have come to their conclusion
- HL: This is a fundamental human rights case: right to life is on the line. Therefore, when it comes to
substantive review – our test is not the ordinary Wednesbury test, we will incorporate a sub-division of
“sub-Wednesbury” = even heightened review “anxious scrutiny” – crawling over the decision to make
sure that it is justified. This is a significant SHIFT from old style Wednesbury.

Case Standard of Review Factors

Nottinghamshire Super-Wednusbury Money, parliamentary approval
Wednusbury Ordinary Routine/default position
Bugdaycay Sub-Wednusbury / anxious scrutiny Fundamental rights

So these three cases highlight how we now have a grid as it were. Clearly the idea of a gird is questionable as
there are always boundary disputes.

Alternatively:

‘The Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the
nature and gravity of what is at stake’ (R v Secretary of State for Education and Employment, Ex p Begbie [2001]
1 WLR 1115 (Laws LJ)).

R v. Ministry of Defence ex p. Smith [1996] 1 All ER 257 (Lords Steyn and Cooke)

The case concerns gays in the military who were thrown out. They claimed Wednusbury unreasonableness,
trying to use Bugdaycay to say that it’s a fundamental right case (right to privacy) and thus the test should be
one of “anxious scrutiny”. The MoD on the other hand would argue that this was an issue of national security;
personal trust is essential for soldiering and that the homosexuality would affect comradeship and thus quality
of the army, thus they would argue super-Wednesbury.

The HL said that though they doubted the policy, it was not so unreasonable that no reasoanble PA could have
made that decision. Also, note that here the policy was approved by parliament by a resolution of the HC.

Smith and Grady v UK [2000] 29 EHRR 493

However, this case was won in the Strasbourg court, which applied the case with the test of proportionality: the
Wednesbury test that has been applied by the domestic court has thus not given sufficient protection of human
rights.

2. Wednesbury unreasonableness and proportionality:

Proportionality:

 Whatever the position at common law, domestic courts are required to do proportionality testing in two
ways:
o Proportionality testing in EU law
o Likewise, many HR set out in conventions and in the HRA, will also require proportionality.
 What does it involve? It has a series of well understood stages for the court to go through; there are
various formulations, with 3 clear stages and a potential fourth:
 o Is the objective sufficiently important to justify limiting a HR? (Legitimate aim)
o If it is, are the measures to meet the objective rationally connected to it? (Rational connection)
o Are the means used no more than is necessary to achieve the objective? (Proportional
measures)
o Lord Bingham: whether a fair balance is struck between the rights of the individual and the
interests of the community. Does this requirement even add much to the previous 3? It should
be noted as a vehicle of judicial discretion.

There is a question as to whether Wednesbury can survive in the CL in the light of flanking developments in EU’s
proportionality, and whether it should ultimately be replaced with proportionality testing.

There is a strong momentum with varying the Wednesbury test:

R. v. Secretary of State for the Home Department ex p. Daly [2001] 2 WLR 1622 (Lords Steyn and Cooke)

- Business correspondence. Both lords were in favour of getting rid of W and going with P. Note that
these are only dicta but nonetheless, are powerful arguments.
- Note that both lords were both very much strong activist wings in the HL, Steyn from the Jackson case
making strong statements about common law constitution (very pro strong judicial review powers)
- Would it matter in substantive terms if we replace W with P? In this case, both lords are of the view that
it would make a SIGNIFICANT difference. They argued that W covers an inner core of cases, and as
demonstrated in the Smith saga, P testing will in practice cover not only that core of cases but also a
wider area = the net effect of shifting W to P is that the courts will do more by way of substantive review
in CL.
- A shift to P testing is a metaphor for more assertive judicial review
- Methodology: Lord Gull – the methodology of P is clearer, logical (can follow from the cases what the
judges are doing due to the stage-by-stage and hence able to hold the judges into account = more
transparent) and the methodology is more rigorous. Whereas, W can be a pain because it is all jumbled
into the single conclusion that it is so unreasonable that no reasonable PA can do it.

There are 3 big reasons to push for P:

(1) Simplify EU law, Common law points of views – just use the P test for all the cases.
(2) P testing stands for more assertive judicial review (Gull and Leciester?)
(3) P uses clearer methodology

Wednesbury is still not buried: still in operation – the general test for substantive test for substantive review at
CL (refer to the W grid and variable W). It has NOT been over-ruled.

Association of British Civilian Internees – Far Eastern Region v. Secretary of State of Defence [2003] EWCA Civ
473

(Case concerning compensation paid to British citizens interned in Japanese POW camps during WW2 but
limited to those with ‘close links’ (them or previous generation born in the UK))

“Held, dismissing the appeal, that the Wednesbury test survived and was the correct test to apply where
Community Law and rights under the European Convention on Human Rights 1950 were not involved”
Wednesbury remains under threat in the Supreme Court, as the following passage (paragraph 135) from Lord
Mance’s speech here makes clear:

R (Doherty) v Birmingham City Council [2008] UKHL 57

‘The difference in approach between the grounds of conventional or domestic judicial review and review for
compatibility with Human Rights Convention rights should not however be exaggerated and can be seen to have
narrowed, with "the 'Wednesbury' test … moving closer to proportionality [so that] in some cases it is not
possible to see any daylight between the two tests" (ABCIFER, para. 34…). The common law has been
increasingly ready to identify certain basic rights in respect of which "the most anxious" scrutiny is appropriate…
Even so, as the subsequent history of ex p. Smith demonstrates, the result may not always achieve the degree of
protection for Convention rights which the Strasbourg Court requires… So there remains room in another case
to reconsider how far conventional or domestic judicial review and Convention review can be further
assimilated, and in particular whether proportionality has a role in conventional judicial review. This was not,
however, argued on the present appeal, and, in common I understand with the majority of your Lordships, I do
not consider that it is appropriate to embark on such a review on this appeal.’

Wednesbury - contemporary applications:

Why should we keep W?

1. Constitutional argument for W: If it really right for courts themselves to declare that P is the way to go, P
is in EU law and convention rights which ultimately rely on statues as the membership of the EU come
about from the Community Act = so even if we want to move to this more assertive form of JR, it should
be Parliament asserting that and NOT the courts.
2. Disagreement about the methodology issue: Rather than go through all these different stages, W is
actually simple: CL lawyers have been using it for 50 years, why can’t they continue using it.
3. The argument in favour of judicial restraint – favoured P because it is seen as more assertive, but we
want judicial restraint.

Direction of W and P?

1. If you think about the development of variable W you might see it showing a gradual convergence
between CL approaches and the approach in respect of EU law/convention rights = such seen in
“anxious scrutiny”. It is about a gradual coming together that we are experiencing.
2. It is open to Parliament to impose P testing in a particular sector – so if it wants to say: when we are
setting up a new statutory framework, we don’t want the courts to apply W but P, Parliament can do so
- R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213. Over time, more and more statutory
exceptions will develop, PERHAPS that the W will be overwhelmed by it and by that point P will be taken
as the test to be used.

Wednesbury - contemporary applications:

Nonetheless, the test of Wednesbury unreasonableness has not been displaced from the common law. See for
example:

R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 reversing Bean J. [2006] 2 All ER 180.
 - Drugs and the NHS. Rogers has a very aggressive form of breast cancer and she would want to have a
drug in her, which the manufacturers say, can help to fight the cancer. This drug is new on the market
and still being tested, thus local healthcare trusts have discretions can decide whether to pay for it or
not, this drug is £25,000. Local NHS trust that covers R’s case says that we are not funding it, not yet
convinced of its clinical effectiveness and problems. If R lived 10 miles down the road, the other NHS
trust would have funded her.
- Both courts applied W. High Court: emphasises that in this country different NHS trusts are responding
in different ways because of different resources, different reasonable decision makers have taken
reasonable views which are different – applying W, I am not in the position to 2 nd guess.
- CA: takes a stronger pro-applicant approach and held that the local NHS decision is unreasonable
according to the W test.
- There can be dispute within applying Wednusbury itself.

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61.

Involves the treatment of islanders in the Indian Ocean and the Brit and American governments wanted to clear
those islands so that a naval and aircraft base could be built. The question is about decision making by the
government as to whether the people could go back to nearby islands. Could this foreign relations question be
questioned at all?

It was challengeable and JR does apply, but the test is W and because there are national security considerations,
a very restrictive W test is used. Strong example of judicial restraint in this foreign policy context.

R (Patel) v Lord Chancellor [2010] EWHC 2220

 Widow of Mohamand Khan(the lead suspect of the bombing at King’s Cross) applies for legal aid to be
represented at that inquest – as he died at the same time as the victims. Legal aid refuses, she
challenges that decision.
 CA: applies W with a strong restraint – has no enthusiasm at all to overrule the decision of the legal aid
department to give the widow aid.

3. Proportionality-testing

In general terms this stands for a more assertive version of JR than W. subsequent case law has shown us what
is actually familiar from EU jurisprudence – that just as W can be variable in terms of the standard of review, so
can proportionality, so that sometimes using P testing, the court may look v closely or may take a light-touch
approach to review.

Just as Wed is variable, so is proportionality; it is not a uniform standard because it too is applied with varying
points of rigour depending on the context. If we did prop testing, in how many cases would there even be
reviewable decisions?

With Wed we know the test is so unreasonable etc. what then do we mean by prop testing? It is classically
found where you can start with an individual right. Supposing under the HRA you have a right to religious
freedom. In some way, the public authority affects your right to this religious freedom and you say that is
incompatible. But it is not as simple as that because the Convention states that there are public iterest reasons
that determine that your convention rights will be affected. How does the court go about testing whether there
is justification for the interference? This is where we get to prop testing.
=> Whether the means used to impair the rights of freedom are no more than it is necessary to accomplish the
objective. Courts usually say it’s more for the primary decision maker to decide this, we encounter the general
idea of a margin of appreciation. W looks increasingly plastic and so is P.

=> In applying “due deference” the courts can give very great respect to the decision maker, in others we will
give less. When you look at these contexts, you see striking context as with W. E.g. money/parliament/typical
area of regulatory decision-making = P will have a “light touch” effect than otherwise strictly enforcing the
staged test: Manchester City Council v Pinnock [2010] UKSC 45

A staged test

De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80,
requires the administrator to ask:

 Whether the legislative objective is sufficiently important to justify limiting a fundamental right?

 Whether the measures designed to meet the legislative objective are rationally connected to it?

 Whether the means used to impair the right or freedom are no more than is necessary to accomplish
the objective?

But now see Huang v Secretary of State for the Home Department [2007] UKHL 11, where Lord Bingham spoke
of a fourth – overarching - requirement:

 Whether a fair balance is struck between the rights of the individual and the interests of the community

Example you'd get in EU law: pharmaceutical Company whose trading interests have been limited by concerns
for public safety. (Where the company wants to put a new nutrient for animals on the market. However, there’s
an EU food safety regulation which imposes a testing regime that is restricting their right to trade. The question
is whether that restriction is acceptable)

*It works best when you start from a rights because the question is essentially whether the interference with
the right can be justified. To do so one must go through the 3 stages mentioned. When looking at these cases,
there are 3 labels that you need to keep in mind:

When thinking about Convention rights cases (beginning with the ‘core understanding’ we see in de freitas:

 Is there a right engaged; is this case within the sphere or realm of a particular right?
o Hypothetical example is if someone wants to come to work dressed as a Jedi. Clearly, for art. 9
to be engaged, you need to have a working understanding of what religion and religious
expression are. The same applies for all convention rights.
 Has there been interference: has that right in some way been affected?
o E.g. if someone senior at the office says ‘that’s a nice robe’ or doesn’t say anything at all, there’s
clearly no interference to complain about.
 Assuming that a right is engaged and assuming that that rights has been interfered with, can that
interference be justified? If it cannot be justified, there is an infringement. Note the difference:
 interference is not itself unlawful; it paves the way for proportionality testing; it is only an infringement
when the interference is unjustifiable.

The court should THEN go on to ask whether a fair balance has been struck btw the rights of the individual and
of the community (Huang). This is controversial because it opens up the possibility of judicial discretion – how
else do you decide if a fair balance has been struck?

Proportionality and domestic law

This idea of proportionality testing is taken forward in 3 ways

1. Of course it’s open to parliament in any particular context to say for the purposes of ‘this piece’ (or
generally if they want) of domestic law, we’d have a proportionality test; without obliterating the
general claw principle.

a. Remember that JR doesn’t actually have a statutory basis in its CL guise in this jurisdiction.
(example in R(Elias))

There’s clearly been a major difference of opinion amongst our CL judiciary whether proportionality test
should overtake Wednesbury. So it is possible from time to time to see particular judges using a
proportionality test in particular areas of the claw (Naharajah Abdi v. Secretary of State for the Home
Department [2005] EWCA Civ 1363.(Laws LJ at para.42)

b. So it may just be that Wednesbury will just suffer a gradual death. There’d be more and more
exceptions developed by statute and individual judges till the exceptions overwhelm the rule.

2. We need also to think about convention rights here and proportionality testing in this sense; there are
important areas where the methodology of the CL gets you further as a claimant then does the
methodology of convention rights.

a. Remember, we used 2 senses of Wednesbury. Both process review and substantive review. And
so far, we’ve compared and contrasted wholly unreasonable substantive review with
proportionality testing

So the further question is this. Suppose that a public body is subject obviously to convention rights and
we say a convention right is engaged. Suppose that that PB makes its decision without thinking about
HR. Doesn’t take HR into consideration but produces a decision, the outcome of which can be argued to
be proportionate. Notice, if this was a CL case, you’d have a ground of challenge. You’d be able to say:
failed to take account of the failure to consider. Q: does the HRA give us process review in regards to
convention rights? Can you challenge a PA for failing to take into account a convention right when at the
end of the day, the outcome they achieved by other means looks proportionate.

This is a big issue of convention rights methodology. The answer the HL has given is essentially – No - .
That convention rights are essentially about outcomes, not the way the decision making is done. So we
see the protection you get from convention rights is much more limited than under CL mechanisms.
 3. Deference idea (see below)

Culture of justification?

R (SB) v. Governors of Denbigh High School [2005] EWCA Civ 199; R (Begum) v. Governors of Denbigh High
School [2006] UKHL 15

The case concerns a young Mulsim girl who wants to wear a particular form of Muslim costume which is of a
very modern nature (so not a full veil). She says it’s part of her religious freedom. She argues that the teachings
of the holy Koran as she understands them lead her in this direction. School says we aren’t letting you do this.
The school is in Luton, in a very mixed community. The headmistress is a Muslim and the school has gone to
great lengths to consult with parents of all parts of the community on an appropriate school uniform. It’s a state
school. School goes with all the arguments of a school uniform in particular; it’s been put to them by a no of
parents in the Muslim community that we shouldn’t go too far down the route in a variation for fear that
otherwise our daughters would be put under pressure by certain elements in the Muslim community not to
wear a school uniform as the school would like.

This is a classic art. 9 case. It is clear that here a right is engaged. The question is then whether it has been
interfered with. The school said that the claimant wouldn't be admitted if she turned up in the costume
however, there’s another state school a few miles away that will accept this youth. There’s actually a big dispute
and by a majority, they say there is no interference because she could go to the other school. (Ultimately it’s a
hard decision though)

Nonetheless, all the law lords go on to decide the case on the basis there was interference. So they consider
whether the interference was justified. And applying the proportionality test, they all agreed that it was
justified.

Legitimate aim? – Yes. Development of a school ethos; protection of certain Muslim girls from pressure
Rational connection? – Yes
Proportionate? – Yes. The measure was not more than necessary to achieve the aim.

In reaching this decision, they show a lot of deference/respect to the decisions of the headmistress (light-touch
approach). She’s the professional, she’s on the ground. She’s out there consulting with the community so they
are clearly loath to second guess her.

CA had taken a rather different approach. CA had said was there a right engaged which was interfered. They
then went on to consider whether the school had considered the issue of convention rights and whether they
had taken this into account as a relevant condition. They decided that the school had not done so and therefore,
they said they don’t have to decide whether it was proportionate or not. The mere failure of the school to do
this meant they failed to take a relevant consideration into acct end of story. So CA said we’d do process review
with a con right.

The HL essentially said that the CA was wrong in its approach and that convention rights are about outcomes
and not process review. Very robust judgment from lord Hoffman saying you cannot expect head teachers up
and down the country to have copies of HRA etc… cannot expect non-lawyers to be experts; have to think about
speed and efficiency of decision making; professionals should be able to get on with it; we test the outcome not
the way they go about making the decision.

So this is a big limitation in terms of HR methodology.

Summary: It is stressed in the HL that if you implement process review with regards to the HRA, you’d over
formalise/legalise the administrative process. Rawlings: One can’t help feeling the HL knows that the HRA is
being criticised and thus want to avoid pushing things too hard. Contrary view: if we’re serious about
mainstreaming a HR culture then process review should happen.

Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19

The case deals with a sex shop in Belfast and the question is whether it can be licensed. Councillors in Belfast CC
are not enthusiastic to license it. The sex shop invokes FoE and there’s a proportionality test with FoE and the
sex shop doesn’t have much chance with that argument. The council has fairly strong grounds for refusing the
license in this particular case because of the location of the particular sex shop.

The point is this; councillors in deciding the decision had not taken into account of the owners of the sex shops
right to a freedom of expression and so, was that in itself a ground of process review? Hoffman strong judgment
again said it wouldn’t even matter if council hadn’t heard of ECHR. As long as outcome of their decision is
proportionate, courts will say it’s okay.

Variant – speech of Lady Hale. She’s a bit worried as it’s not giving any incentive to decision makers to try and
think about convention rights. What she says is if the Belfast CC had considered con rights, we’d give them a bit
of credit. We’d be more deferential to them.

Third big point then; to come back with the deference idea.

Can’t stress this enough. Please understand that the proportionality test is itself flexible. That it’s plastic. The
flexibility comes in the third bullet of de freitas

‘ no more than is necessary’ courts play around with this. It is on occasion applied very strictly but other times,
they talk about a margin of appreciation or an area of discretionary judgment for the decision maker. So as long
as the decision maker is within the area of discretionary judgment in accomplishing that objective, the decision
will be valid.

Just as with Wednesbury, we have to have a good understanding of context. Line of cases where courts talk
about factors they take into acct when deciding how intensive a level of review they want to apply

‘Due deference’ – a range of factors

R (Roth) v SSHD [2003] QB 728 (Laws LJ)

R (Pro-Life Alliance) v. British Broadcasting Corporation [2003] 2 WLR 1403

A v SSHD [2005] AC 68 (especially Lord Bingham)

Belmarsh case and Bingham’s judgment. Good discussion of the idea that the courts won’t be ruled on grounds
of natural security but natural security is clearly
R (Countryside Alliance) v Attorney General [2007] 3 WLR 922

SRM Global Master v Commissioners of HM Treasury [2009] EWCA Civ 788

Case concerns shareholders of Northern Rock. The bank collapses or is about to collapse and the government
effectively nationalises it. Shareholders say that you’ve basically taken away our possessions contrary to the
convention because you’ve basically given us 0 or minimal value for our shares.

Treasury mounts a robust defence saying you’re shares weren’t worth much at the time we nationalised. It
comes down to a test of proportionality. The claim is pretty hopeless and the treasury wins.

The courts make it clear that when it comes to economic decisions like this, the courts really aren’t going to look
very closely. Hands-off/light touch area.

Manchester City Council v Pinnock [2010] UKSC 45

When you look at it, it’s worth asking whether there’s actually much difference between an old style
Wednesbury and a hands-off proportionality test the court is operating. You may decide there’s little difference.

It’s a resource allocation case. Somebody wants housing and there’s a shortage of housing. How far is the court
going to review in that type of case. Very hands off. It’s an important decision to think about in the phase going
forward as issues of resource allocation are clearly going to be very big on the horizon for the court in the next
few years.