WEEK 5: FUNDAMENTAL PRINCIPLES OF ADMINISTRATIVE LAW

Essential Readings

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) Ch 2

Ø Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) Chs 10, 11 & 12
Ø Lord Woolf et al, De Smith’s Judicial Review (8th Edn, London: Sweet & Maxwell, 2019)
Chs 5 & 11
Ø Paul Craig, Administrative Law (London: Sweet and Maxwell, 2016) Ch 21 & 22
Ø Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University Press,
2008)

Outline

1. Introduction to the principles of Administrative Law

a. Legality
b. Reasonableness/Irrationality
c. Proportionality
d. The right to participate/The Duty to Consult
e. Justification
f. Legitimate expectation
g. Independence
h. Accountability
2. Questions to Consider

FUNDAMENTAL PRINCIPLES OF A DMINISTRATIVE L AW

Ø Introduction to the principles of Administrative Law
Ø Legality
Ø Reasonableness/Irrationality
Ø Proportionality
Ø The right to participate/The Duty to Consult
Ø Justification
Ø Legitimate expectation
Ø Independence
Ø Accountability

1. Introduction to the Principles of Administrative Law

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) Ch 2
Ø ‘In many countries today, the principles of administrative law are sometimes equated, or
even deemed synonymous with, what is termed “good administration.” On this approach,
a good administrative decision is one that is lawful, reasonable, proportional, respects the
principles of legitimate expectations, justified, and procedurally fair.’ (See Migai Akech,
Administrative Law (Strathmore University Press, 2016) 27)
Ø Article 47 of the Constitution embraces the principles of administrative action by
providing that ‘Every person has the right to administrative action that is expeditious,

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 efficient, lawful, reasonable and procedurally fair’. The principle of natural justice is
reflected in the provisions of Article 50 of the Constitution on fair hearing.
Ø The principles are also extensively set out in section 7(2) of the Fair administrative
Action Act, 2015.
(2) A court or tribunal under subsection (1) may review an administrative action
or decision, if—
(a) the person who made the decision—
(i) was not authorized to do so by the empowering provision;
(ii) acted in excess of jurisdiction or power conferred under any written law;
(iii) acted pursuant to delegated power in contravention of any law prohibiting
such delegation;
(iv) was biased or may reasonably be suspected of bias; or
(v) denied the person to whom the administrative action or decision relates, a
reasonable opportunity to state the person’s case;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the action or decision was procedurally unfair;
(d) the action or decision was materially influenced by an error of law;
(e) the administrative action or decision in issue was taken with an ulterior motive
or purpose calculated to prejudice the legal rights of the applicant;
(f) the administrator failed to take into account relevant considerations;
(g) the administrator acted on the direction of a person or body not authorised or
empowered by any written law to give such directions;
(h) the administrative action or decision was made in bad faith;
(i) the administrative action or decision is not rationally connected to—
(i) the purpose for which it was taken;
(ii) the purpose of the empowering provision;
(iii) the information before the administrator; or
(iv) the reasons given for it by the administrator;
(j) there was an abuse of discretion, unreasonable delay or failure to act in
discharge of a duty imposed under any written law;
(k) the administrative action or decision is unreasonable;
(l) the administrative action or decision is not proportionate to the interests or
rights affected;
(m) the administrative action or decision violates the legitimate expectations of
the person to whom it relates;
(n) the administrative action or decision is unfair; or
(o) the administrative action or decision is taken or made in abuse of power.

Ø From the text of Section 7(2) of the Fair administrative Action Act, 2015 we can see
that it embraces principles such as legality/lawfulness, reasonableness, proportionality,
procedural fairness, legitimate expectations and so on.

2. Legality
Ø De Smith’s Judicial Review (8th Edn) Ch 5 (pg 245-251)
v ‘An administrative decision or other exercise of a public function is unlawful under
the broad chapter head of “illegality” if the decision-maker:
§ misinterprets a legal instrument relevant to the function being performed
§ has no legal authority to make the decision
§ fails to fulfil a legal duty
§ exercises discretionary power for an extraneous purpose
§ takes into account irrelevant considerations or fails to take account of
relevant considerations
§ improperly delegates decision-making power.’

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v ‘The task for the courts in evaluating whether a decision is illegal is essentially one
of construing the content and scope of the instrument conferring the duty or
power upon the decision-maker. The instrument will normally be a statute or
delegated legislation … The courts when exercising this power of construction are
enforcing the rule of law, by requiring administrative bodies to act within the “four
corners” of their powers or duties. They are also acting as guardians of Parliament’s
will, seeking to ensure that the exercise of power is in accordance with the scope
and purpose of Parliament’s enactments.’
v Legality and discretion:
§ ‘The concept of discretion in its legal context implies power to make a
choice between alternative courses of action or inaction. If only one course
can lawfully be adopted, the decision taken is not the exercise of a
discretion. To say that somebody has a discretion presupposes that there
is no unique legal answer to a problem. There may, however, be a number
of answers that are wrong in law. And even in cases where the power is
discretionary, circumstances can exist which mean the discretion can only
be exercised in one way. There are degrees of discretion, varying the scope
for manoeuvre afforded to the decision-maker.’
§ Legislation employs a great variety of different formulae to confer
discretion and to guide the exercise of that discretion. Sometimes, a statute
exhaustively specifies the ways in which a discretion may be deployed, such
as by enumerating the types of conditions which an authority may attach
to the grant of a licence. In such cases, the attachment of any other type of
condition may be illegal. Or it may lay down general standards to which
the exercise of a power must conform.’
§ ‘Sometimes, however, the exercise of a statutory discretion is not limited
by the express provisions of the Act and in those cases the courts embark
upon an interpretation of the objects and purposes of the statute in order
to identify the limitations to which the discretion is subject.’
• For instance, Padfield v Minister of Agriculture Fisheries and
Food [1968] A.C. 997 at 1060. The issue in the case was about the
interpretation of a statute which came close to conferring
unfettered discretion, but which nevertheless permitted judicial
review. On the matter, Lord Upjohn states that ‘even if legislation
were to confer upon a decision-maker an “unfettered discretion”:
o “[T]he use of that adjective [unfettered], even in an Act of
Parliament, can do nothing to unfetter the control which
the judiciary have over the executive, namely, that in
exercising their powers the latter must act lawfully and that
is a matter to be determined by looking at the Act and its
scope and object in conferring a discretion upon the
minister rather than by the use of adjectives.”’ (emphasis
added)
• In Liversidge v Anderson [1942] A.C. 206, ‘the House of Lords
held that the Secretary of State’s power to order the detention of
any person whom he had “reasonable cause to believe” to be of
hostile origins or associations, and over whom it was therefore
necessary to exercise control, was validly exercised unless it was
shown that he had not honestly considered that he had had
reasonable cause for his belief.’ (emphasis added)

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 § It therefore follows that a discretionary power which is prima facie (on its
face) unfettered will always be held to be subject to implied limitations set
by the Constitution or any other written law.

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 29-33

v ‘The principle of legality states that every act of government must be justified by a
specific law. It requires that where, for example, an administrator proposes to do
an act that would otherwise be wrong (such as taking a person’s property), or that
would infringe on a person’s liberty, the administrator must demonstrate that the
act is authorised by law. That is, every exercise of governmental power that affects
the rights and interests of an individual “must be shown to have a strictly legal
pedigree.” Thus states, the principle of legality is important from the perspective
of the rule of law because it promotes the ideal of governance by law.’
v Legality and discretion: ‘legislatures often enact laws that grant administrators
discretionary powers that are so wide as to confound the principle of legality. In
the context of economic or social regulation, for example, administrators are
typically granted wide discretionary powers, for example to pursue the “public
interest.” There are three primary explanations for the grant of such
discretion
§ First, discretion is said to be a necessity in light of mixed regulatory goals.
Because various rationales are often proffered for the regulation of any
given market, agreement on the exact mandate – or priorities – of an
agency is never easy to attain. There is, therefore, a tendency to throw
everything at the agency, which then has to decide how to go about
undertaking its legislative mandate.’
§ ‘Second, there is often a belief that because of their expertise and
professionalism, administrators will only do what serves the interests of the
wider public. As experts, it is assumed that they are more likely than
members of the legislature, for example, to be competent and non-partisan.
Further, the legislature typically has neither the time nor the resources to
determine what, for instance, constitutes a ‘reasonable rate of return’ for a
telephone monopoly.’
§ ‘Third, the complexities of the markets to be regulated demand that
agencies should be flexible enough to adapt to changes in market
conditions. In such circumstances, rigid legislative mandates ought to be
avoided since the legislature may not be able to foresee all eventualities.’
§ ‘Where a law grants administrators wide discretionary powers, it means the
sphere of legality will be quite wide, and they can act in any manner they
wish as long as they keep within its bounds. A question arises, therefore,
as to whether they could violate other principles of administrative law even
as they claim to be acting within their lawful powers. For example, does
the grant of discretionary power mean that they can act unreasonably or
without adhering to the principle of procedural fairness? If they were
allowed to do so, then they would make a mockery of the rule of law ideal,
which surely must entail restricting the exercise of discretionary power
since citizens would otherwise be left without any protection from an
oppressive government.’
§ ‘A mechanism to exercise discretionary powers is therefore required.’ This
comes in the form of the principle of legality and the related doctrine of
ultra vires.

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 v Legality and the ultra vires doctrine: The principle of legality works alongside
the doctrine of ultra vires which is meant to control the exercise of discretionary
powers of administrators. The doctrine is applied in two ways, important to look
at in our discussion of legality:
(a) ‘In the narrow sense the doctrine has meant that “a person or body
acting under statutory power can only do those things that statute
authorizes him or it to do; an act will be ultra vires if the person or body
doing it did not have the statutory power to do it.” Courts have therefore
allowed an individual to challenge the legality of an act on the grounds that
there was no power to do it.’
(b) ‘the doctrine in a wider sense… has been used to denote the manner in
which power has been exercised. Courts would therefore allow an
individual to challenge the legality of an act on the grounds that although
there was power to do it, that power was exercised in an unlawful manner.
It would therefore be available where an administrator has failed to comply
with the rules of fair procedure, acted on irrelevant considerations, acted
unreasonably, and exercised its discretion to attain improper purposes. By
finding implied limitations in statutes, the courts therefore stretch the
meaning of the doctrine, which could then mean anything they wish. For
example, if a law empowers an administrator to “act as he deems fit,” the
courts would read into this law conditions requiring him to act reasonably,
take account only of relevant considerations, and give a fair hearing to
anyone who is adversely affected. That is, the courts reason that even
though the legislature has granted the administrator wide discretionary
power, it could not have intended that this power would, for example, be
exercised unreasonably. In its wider sense, the ultra vires doctrine has
enabled English courts to subject the exercise of discretionary power to
the rule of law.’
Ø In summary, ‘the claim would be that if a body, whether public or private, exercises power
that is capable of adversely affecting the rights and interests of individuals, then it must
apply its rules (be they statutory, articles of association or of other governing document
under which it operates) in a manner that upholds the requirements of the Constitution
such as adherence to the principle of legality and the rule of law’.

3. Reasonableness/Irrationality
• Unreasonableness is used to illustrate a decision which is so unreasonable that no
reasonable public authority could have reached it.
• ‘Unreasonableness’, also referred to as ‘irrationality’, is an accepted ground on which a
decision may be attacked by judicial review. See Lord Diplock’s statement in Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 410.
As per at Lord Greene M.R. in pg 229 of the case, unreasonableness covers “something
so absurd that no sensible person could ever dream that it lay within the powers of the
authority”.
• Justin Leslie & Gavin McLeod, ‘Judicial Review: Wednesbury Unreasonableness’
(Westlaw, 2015)
¨ ‘It is a key public law principle that a public body cannot act unreasonably in the
performance of its public functions. Unreasonableness, also known as irrationality,
is a substantive category of judicial review. The classic approach to irrationality is
to show that a decision was so unreasonable that no reasonable decision-maker
could have come to it.’

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¨ ‘The starting point is Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1948] 1 K.B. 223. In this case, a cinema operator had been granted a licence
to show films on Sundays by the local licensing authority. The licence included a
condition that no child under 15 could be admitted, whether accompanied by an
adult or not. This decision was taken having regard to the well-being and moral
health of children likely to visit the cinema. The local licensing authority had a wide
discretion in relation to licences and could impose “such conditions as the
authority [thought] fit” (s.1 of the Sunday Entertainments Act 1932).’
¨ ‘The legal issue in Wednesbury was, assuming that a public body has acted within the
confines of its powers according to the statutory language, are there circumstances
when a court can still intervene to quash a decision? The Court of Appeal answered
this question affirmatively. This confirmed that as well as scrutinising the
procedure that was adopted in making a decision, a court can also scrutinise the
substance of a decision. Lord Greene MR expressed this in the following terms
The court is entitled to investigate the action of the local authority with a
view to seeing whether they have taken into account matters which they
ought not to take into account, or, conversely, have refused to take into
account or neglected to take into account matters which they ought to take
into account. Once that question is answered in favour of the local
authority, it may still be possible to say that, although the local authority
have kept within the four corners of the matters which they ought to
consider, they have nevertheless come to a conclusion so unreasonable
that no reasonable authority could ever have come to it.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 at
230 (emphasis added).’
¨ ‘Lord Diplock in the GCHQ case [Council of Civil Service Unions v Minister
for the Civil Service [1985] A.C. 374] stated that unreasonableness was a ground
of review in its own right and provided this further definition when explaining the
term “irrationality”:
‘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.
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 at
410.’ (emphasis added)
¨ ‘It is important to appreciate that Wednesbury establishes a layer of common law
oversight beyond the ensuring of compliance with the terms of a public body’s
statutory powers. Not only do decisions have to comply with the relevant statutory
framework, decisions must also not be so unreasonable that no reasonable
decision-maker could have come to them.’
¨ ‘It is possible to criticise the Lord Greene's formulation of unreasonableness as
tautological [unnecessary]. However, the more immediate practical concern for
public lawyers is that it sets a high threshold, although attempts to modify this have
been made by adopting a “sliding-scale” approach. These two matters are now
considered.’
¨ ‘High threshold: The Wednesbury formulation creates a high threshold for
claimants seeking to establish that a decision is unreasonable. As a result, public
bodies can be relatively well insulated from challenges on this ground alone. It is
only in cases where a decision is: (a) manifestly unreasonable …, (b) illogical

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 … (if a decision “does not add up”); and … (“if the reasons make no sense”), or
(c) oppressive … (oppressive decisions repugnant to public law standards)) that
a court will conclude that the decision was unlawful on this basis. Extreme delay
or inaction by a public body has also been described as unreasonable ...’
¨ ‘The reason for this high threshold is constitutional. The court's role in the context
of a judicial review application is to supervise the decisions of the executive in
order to maintain the rule of law. The court’s role is not to substitute its view of
the merits of a decision in place of the view of a decision-maker who has been
authorised by Parliament to make that decision. This supervisory jurisdiction is
distinct from an appellate jurisdiction where the test is whether a decision was
“wrong” ... This … approach was emphasised by the House of Lords in R. v
Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696. In that case
Lord Ackner stated that the “standard of unreasonableness...has to be expressed
in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as
opposed to an appellate, jurisdiction.” … See also R. (on the application of Khatun) v
Newham LBC [2004] EWCA Civ 55; [2005] Q.B. 37 at 40: “the court has no role to
impose what it perceives as ideal solutions under cover of the Wednesbury principle's
application”).’
¨ ‘An assessment of the reasonableness of a decision would cross this
constitutional line if the threshold of unreasonableness was so low that the court
was routinely quashing decisions it happened to disagree with. As was said in
Secretary of State for Education and Science v Tameside MBC [1977] A.C. 1014 at 1074H-
1075C, it would be “quite unacceptable ... to proceed from “wrong” to
“unreasonable”.’
¨ ‘The practical effect of the rule that forbids the court from substituting its view for
the view of a decision-maker is that the threshold of unreasonableness is high and
difficult to meet in many cases.’
¨ ‘Sliding-scale: Although the starting point is that unreasonableness is a high
threshold, the concept contains an in-built latitude that can be applied flexibly
depending on the context.’
¨ ‘Recent examples: The foregoing commentary has highlighted that
unreasonableness is a difficult threshold to meet. However, it does not mean that
public bodies are immune from review on this ground. Indeed, there are several
recent decisions where unreasonableness or irrationality has been a successful
ground of review. These include:
1. R. (on the application of May) v Birmingham City Council [2012]
EWHC 1399 (Admin): This was a homelessness case where the local
authority had rejected the claimant's further applications for housing on
the basis that there had been no change in circumstances. It was held that
this was irrational as there had been a change in circumstances, namely an
unanticipated breakdown in the relationship between the claimant and her
temporary accommodation provider.
2. R. (on the application of V) v Secretary of State for the Home
Department [2013] EWHC 765 (Admin): In this case, it had been
conceded that two previous refusals for indefinite leave to remain [in the
UK] were unlawful. However, the defendant argued that any leave to
remain should be taken to have begun at the date of the third decision.
However, this simply repeated the errors of the second decision, and so it
was irrational to rely on it.
3. R. (on the application of Rhodes) v Police and Crime Commissioner
for Lincolnshire [2013] EWHC 1009 (Admin); [2013] A.C.D. 98: This

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 case concerned the suspension of a temporary chief constable on the basis
of an allegation that he had engaged in a dishonest enterprise. However,
neither the claimant's character and standing, nor the likelihood of the
allegations being proved had not been taken into account, whilst the
claimant's version of events had not been sought. Accordingly, the decision
to suspend was irrational and perverse.
4. R. (on the application of Weddle) v Secretary of State for Justice
[2013] EWHC 2323 (Admin); [2014] A.C.D. 18: This claim concerned a
life prisoner who sought to be recategorised by showing that he was a
reduced risk. In time, this could allow him to be released. However, there
was a failure to provide the prison with the means to show that he was a
reduced risk. It was irrational to have a policy of making release dependent
on a prisoner undergoing rehabilitative courses without making reasonable
provision for such courses (at the time of writing, an appeal in this case is
outstanding).
5. R. (on the application of Crawford) v Legal Ombudsman [2014]
EWHC 182 (Admin): In this case, a barrister sought to challenge a
decision by the Legal Ombudsman which required him to pay
compensation to a former client. It was argued that this decision was
illogical due to the decision-maker's inference that, because no conference
notes had been provided, this meant that the barrister had only given
limited advice. The judge agreed with this argument and quashed the
decision.
…
6. R. (on the application of I) v Wood Green Crown Court [2014]
EWHC 1595 (Admin): The claimant, a 17 year old defendant of previous
good character, successfully challenged the decision of a Crown Court
judge to refuse him bail. The High Court noted how the Crown Court
judge’s refusal had relied upon highly speculative factors which not even
the prosecution advocate had relied upon.’ (emphasis added)

• The most famous statement of the Wednesbury principle by Lord Greene MR in Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is:

‘It is true that the discretion must be exercised reasonably. Now what does
that mean? Lawyers familiar with the phraseology commonly used in
relation to the exercise of statutory discretions often use the word
‘unreasonable’ in a rather comprehensive sense. It has frequently been used
and is frequently used as a general description of the things that must not
be done. For instance, a person entrusted with a discretion must, so to
speak, direct himself properly in law. He must call his own attention to
the matters which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to consider.
If he does not obey those rules, he may truly be said, and often is said, to
be acting ‘unreasonably’. Similarly, there may be something so absurd
that no sensible person could ever dream that it lay within the powers
of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66 at
90-1 gave the example of the red-haired teacher, dismissed because she had
red hair. That is unreasonable in one sense. In another sense, it is taking
into consideration extraneous matters. It is so unreasonable that it might

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 almost be described as being done in bad faith; and in fact all these things
run into one another.’

• On the Wednesbury principle overlapping with other grounds of review:

‘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… but to prove a case of that kind would require something
overwhelming’

• Lord Greene MR summaries the principles applicable at the end of his judgment as
follows:
‘The court is entitled to investigate the action of the local authority with a
view to seeing whether they have taken into account matters which they
ought not to take into account, or conversely, have refused to take into
account or neglected to take into account matters which they ought to take
into account. Once that question is answered in favour of the local
authority, it may still be possible to say that, although the local authority have
kept within the four corners of the matters which they ought to consider,
they have nevertheless come to a conclusion so unreasonable that no
reasonable authority could ever have come to it. In such a case again, I
think the court can interfere.’ (emphasis added)

• ‘The term “unreasonableness” as used in the Wednesbury case has two meanings.
(i) ‘it is used as an umbrella term for a range of more specific grounds of challenge,
including the taking into account of irrelevant considerations, the failure to take
account of relevant considerations, improper purpose or bad faith.’
(ii) ‘it is used in a substantive sense to cover a decision which is so unreasonable
that no reasonable decision-maker could have reached it.’ (See David Blundell,
‘Judicial Review: Irrationality (Westlaw, 2018))

• Paul Craig, Administrative Law (London: Sweet & Maxwell, 2016) Ch 21 (1093-1095):
¨ He states that Lord Greene MR in Wednesbury uses unreasonableness in 2
senses:
1. ‘It was used to describe the various grounds of challenge which went to
the legality of the public body’s actions. This “umbrella sense” of
reasonableness was used to describe actions based on illegality, irrelevancy
and the like.’ This first meaning ‘allowed the courts to intervene where the
decision was of a type that could not be made at all, and was therefore
illegal. It was outside the four corners of the power that Parliament had
given to the decision-maker, and the court should therefore step in.’
2. ‘He also gave unreasonableness a “substantive” meaning in its own right.
If an exercise of discretion successfully negotiated the hurdles of propriety
of purpose and relevancy it could still be invalidated if it was so
unreasonable that no reasonable body could reach such a decision.’
o In this second sense, ‘Where, however, the primary decision-maker
was within the four corners of its powers then the court should be
reluctant to interfere. The courts should not substitute their view
for that of the public body, nor should they overturn a decision
merely because they felt that there might have been some other
reasonable way for the agency to have done its task. Some control
over decisions within the four corners of the public body’s power,

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 was however, felt to be warranted … If the challenged decision
really was so unreasonable that no reasonable body could have
made it, then the court was justified in quashing it. The very fact
that something extreme would have to be proved legitimated the
judicial oversight, and served to defend the courts from the charge
that they were intervening too greatly on the merits. It is clear from
Lord Greene MR’s judgment that he conceived of it being used
only in the extreme and hypothetical instance of “dismissal for red
hair type of case”.’
o ‘Lord Diplock in GCHQ was equally clear that this species of
irrationality would only apply to “a decision which is so
outrageous in its defiance of logic or of accepted moral
standards that no sensible person who applied his mind to
the question could have arrived at it”.’

• Migai Akech, Administrative Law (Strathmore University Press, 2016) 29-33

¨ ‘The essence of the principle of reasonableness is that decision-makers should only
make decisions that are reasonable and rational, particularly where they are
exercising discretionary powers. A decision is not reasonable if it is not one that
no reasonable authority could have come to. This principle is concerned with
ensuring that discretionary powers are properly exercised of sufficiently justified,
which raises several questions.
1. First, what exactly is a reasonable or rational decision?
2. Second, between the courts and administrators, who should be the best
judge of reasonableness?’
3. Third, should the views of the public or community matter in establishing
standards of reasonableness in administrative decision-making?
4. Fourth, since this principle inevitably entails a review of the substance or
merit of administrative decisions, to what extent should the courts of other
evaluators interfere with the determination of the primary decision-maker?
In other words, what level of scrutiny or intensity should the courts or
other evaluators deploy in establishing whether a decision is reasonable?’
¨ ‘To the extent that it entails judicial review of the substance or justification of
administrative decisions, the principle of reasonableness raises separation of
powers concerns. Among other things, the separation of powers doctrine states
that “it is not for the courts to substitute their judgment for that of the public body
where discretionary power has been assigned to the latter.” There is a danger that
in undertaking substantive review of administrative decisions, the courts could
encroach on the turf of the executive or the legislature, which could undermine
their legitimacy. Equally, it is important for courts to effectively play their role of
protecting the rights and interests of individuals, lest they be accused of shrinking
this constitutional responsibility. Unfortunately, the separation of powers doctrine
does not provide definitive guidance to the courts on the degree of review
permissible. A need therefore arises for courts to develop mechanisms for
performing a reasonableness review without being accused of violating the
separation of powers doctrine, while effectively protecting the rights and interests
of individuals.’ (emphasis added)
¨ ‘One such mechanism is the test of “Wednesbury unreasonableness,” which Lord
Greene, M.R. formulated in the English case of Associated provincial Picture
Houses Ltd v Wednesbury Corporation [1948] I K.B. 223, and has been
adopted by many courts in other jurisdictions. In this case, Lord Greene stated that

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 the courts can only interfere if a decision “is so unreasonable that no
reasonable authority could ever come to it.” … In other words, “in exercising
their powers of review, judges ought not to imagine themselves as being in the
position of the competent authority when the decision was taken and then test the
reasonableness of the decision against the decision they would have taken.” Were
they to do so, the courts would be reviewing the merits of the decision, which they
should not do since – unlike the primary decision-maker – they are not the
recipient of power. In Wednesbury, Lord Greene therefore sought to uphold
the separation of powers doctrine by defining an unreasonable decision as
one that “would require something overwhelming.” For example, a teacher
being dismissed on the grounds of having red hair. Further, he gave the
following as examples of “administrative sins” that would be covered by the
notion of unreasonableness: bad faith, dishonesty, attention given to
extraneous circumstances, disregard of public policy, wrong attention given
to irrelevant considerations, and failure to take into account matters which
are bound to be considered.’ (emphasis added)
¨ ‘This restrained approach was confirmed in the subsequent English case of
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C.
374 (the GCHQ case), where Lord Diplock defined an irrational decision as
one “which is so outrageous in its defiance of logic or accepted moral
standards that no specific person who had applied his mind to the question
to be decided cold have arrived at it.” Wednesbury and GCHQ therefore mandate
“a very low level of judicial scrutiny” with the result that only very extreme degree
can bring an administrative decision within the legitimate scope of judicial
invalidity. The net effect of Wednesbury and GCHQ is that very few decisions will
be subjected to judicial review on the grounds of reasonableness.’
¨ ‘Courts in the common law world have therefore sought to reformulate the test of
reasonableness, so that it can embrace more decisions. To achieve this objective,
they now apply the test of whether the decision in question is one that “is within
the range of reasonable approaches” available to the decision-maker. This
reformulated test has allowed them to review decisions where there has been a
material defect in the decision-making process, where the decisions taken violate
common law or constitutional principles governing the exercise of power such as
the rule of law, equality, and oppressive decisions such as those which have an
unnecessarily onerous impact of the rights or interests of the person they affect.
Examples of decisions deemed unreasonable by this test include: where manifestly
excessive or manifestly inadequate weight has been accorded to a relevant
consideration, where a decision is unreasoned, that is, lacks “ostensible logic or
comprehensive justification”; where there is no logical connection between the
evidence and the ostensible reasons for the decision; and where the decision-maker
has taken into account as a fact something which is wrong or where he has
misunderstood the facts upon which the decision-depends’.

11
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223

Westlaw Case Digest

Summary
Where a public authority making a decision had only taken into account the matters it ought to
have taken into account, the court could still interfere with the decision where it was so
unreasonable that no reasonable authority could ever have come to it. This case is the basis for the
terms “Wednesbury reasonableness” and “Wednesbury unreasonableness”.

Abstract
The appellant cinema proprietor (P) appealed against a decision (Associated Provincial Picture Houses
Ltd v Wednesbury Corp [1947] 1 All E.R. 498) that a condition imposed by the respondent local
licensing authority on the grant of permission for Sunday performances at the cinema was not
ultra vires.

The local authority was empowered by the Sunday Entertainments Act 1932 s.1 to licence cinema
performances "subject to such conditions as the authority think fit to impose". Taking into account
the well-being and physical and moral health of children likely to visit the cinema, it imposed a
condition that no child under 15 should be admitted to such performances, whether accompanied
by an adult or not. P brought an action for a declaration that the condition was ultra vires, but its
action was dismissed.

P argued that the local authority had acted unreasonably in imposing the condition.

Held
Appeal dismissed.

(1) The court was entitled to investigate the local authority's actions to see whether it had taken
into account matters which it ought not to have taken into account, or had failed to take into
account matters which it ought to have taken into account. If that question was answered in the
local authority's favour, it might still be possible to say that although it had kept within the matters
it ought to have considered the conclusion reached was so unreasonable that no reasonable local
authority could ever have come to it. In those circumstances the court could interfere with the
discretion. The court's power to interfere was not as an appellate authority to override the decision
of a local authority, but as a judicial authority which was only concerned to see whether the local
authority had contravened the law by acting in excess of its powers.

(2) In the instant case, the matter dealt with by the condition was one which a reasonable authority
would be justified in considering when deciding what condition should be attached to the grant of
the licence.

Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374

Westlaw Case Digest

Abstract
The court will not intervene to review the decision of a minister where the requirements of national
security outweigh other matters. Since 1947 staff employed at GCHQ had been permitted to be
members of trade unions. In December 1983 the Minister, with no prior consultation,
peremptorily altered the conditions of service, forbidding membership of a union. The applicants

12
sought judicial review on the ground of unfairness due to failure to consult. Glidewell, J. granted
the application and declared the instruction to be invalid. The Court of Appeal allowed the
Minister's appeal.

Held, dismissing the appeal that (1) executive action based on common law or the use of a
prerogative power was not therefore immune from review; but (2) the requirements of national
security outweighed those of fairness, which was a matter for the executive to weigh and decide.

R. v Secretary of State for the Home Department Ex parte Brind [1991] 1 A.C. 696

Westlaw Case Digest

Abstract
A direction of the Secretary of State prohibiting the broadcasting of direct speech from those
representing proscribed terrorist organisations was not ultra vires. By directions issued under the
Broadcasting Act 1981 and the licence and agreement the Secretary of State required broadcasters
to refrain from broadcasting any matters by or from persons who represented proscribed terrorist
organisations where the "matter" supported or encouraged support of the organisation. A,
broadcasters, sought judicial review of the decision, arguing that it contravened the European
Convention on Human Rights 1950 and conflicted with their duty under the Act and the licence
and agreement to preserve impartiality. The Divisional Court and Court of Appeal dismissed the
application.

Held, dismissing the appeal, that the Convention was not part of English law and the wording of
the Act was clear so that there was no presumption that the Secretary of State had to exercise his
powers in conformity with the Convention. It was not possible to say that the restrictions imposed
were not justified by the public interest in combating terrorism, and so it could not be said that
the Secretary of State exceeded his discretion or power (Associated Provincial Picture Houses Ltd v
Wednesbury Corp [1948] 1 K.B. 223, [1947] 11 WLUK 26 applied).

4. Proportionality
Ø Peter Leyland & Gordon Anthony, Textbook on Administrative Law (5th Edn, Oxford:
Oxford University Press 2005) 330-334
v ‘Proportionality works on the assumption that an administrative action ought not
go beyond what is necessary to achieve its desired result (in everyday terms, that
you should not use a sledge hammer to crack a nut) and, in contrast to irrationality,
is often understood to bring courts much closer to reviewing the merits of a
decision. In other words, if measures are considered to do more harm than good
in reaching a given objective, they are liable to be set aside.’
v Sedley LJ puts it in B v Secretary of State for the Home Department [2000]
UKHRR 498 (CA), at 502C thus:
‘In essence it amounts to this: a measure which interferes with a
Community or human rights must only be authorised by law but must
correspond to a pressing social need and go no further than strictly
necessary in a pluralistic society to achieve its permitted purpose; or more
shortly, must be appropriate and necessary to its legitimate aim.’ (This
related to a deportation case where the Home Secretary’s decision to
deport the appellant was so severe as to be disproportionate.)

13
 v ‘This is a useful concept to adopt when seeking to control exercises of the kind of
discretion often placed in the hands of administrators.’
v ‘Proportionality may be regarded as an extra safeguard which is activated only after it has
been established that a public body has the legal power to act, or that the body is not
pursuing an improper purpose, i.e., even if these grounds do not apply, it may still be
relevant to consider whether the body concerned is acting proportionately.’
v ‘At its simplest, the court may be called upon to perform a kind of balancing exercise to
assess if the objective of an official decision necessitates (the ‘necessity test’) the means
employed to achieve it, or whether the means can be deemed to be disproportionate.’
v ‘A measure will therefore typically be proportionate only where:
(a) the means adopted by the authority when using power is in line with the
legislative purpose;
(b) the authority employs only means that minimise harm to the individual; and
(c) any injury caused to the individual is not disproportionate relative to the
benefit secured to the public generally.’

Ø ‘Proportionality is generally concerned with whether an action, decision or legislative

measure pursues a legitimate objective; is rationally connected with, and actually
contributes to, the achievement of that objective; and whether it is nonetheless excessive
in all the circumstances, including by reference to the existence of less intrusive means of
achieving the legitimate objective.’ (Westlaw 2014)
Ø ‘It has often been suggested, both by commentators and by the courts themselves, that the
standard of proportionality is to be preferred to that of Wednesbury unreasonableness, and
that proportionality should be recognised as a stand-alone ground of judicial review (R.
(on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 A.C.
532 at para.32, per Lord Cooke), especially in cases concerning common law constitutional
rights.’ (Westlaw 2014)
Ø ‘A decision that is Wednesbury unreasonable will necessarily be “disproportionate”.’ (Westlaw
2014)

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 35-37

v ‘The principle of proportionality states that the means used by administrators must
be appropriate to achieve the objectives sought, and must not go beyond what is
necessary to attain those objectives. In other words, governmental action must be
a rational means to a permissible end, which end must not unduly invade
protection protected rights and interests. That is, if an administrator has several
options to achieve a particular objective, he or she must choose that which puts
the least burden on the individual affected.’
v ‘The principle, which is of German origin, not only provides an important brake
on the exercise of discretionary power, but also plays a central role in the
examination of any interference with constitutional rights.’
v ‘It subsumes three sub-principles: appropriateness, necessity, and balancing.
Appropriateness is concerned with ensuring that there is causal connection
between chosen means and the desired objective. That is, the administrator must
choose the right tool for the job at hand. Once it is persuaded that the
administrator has chosen the right tools, the court next asks whether such tools
are necessary. It requires that where equally suitable or appropriate means are
available to the administrator, he or she must choose the least restrictive means to
further his or her desired ends. Once it is satisfied that the administrative tool is
necessary, the court then performs a balancing analysis. That is, it balances the
seriousness of the interference with the rights and interests concerned with the
urgency or necessity of the governmental justification for such interference. Here,

14
 it seeks to ensure that purpose and method are not out pf proportion, and that the
governmental measure “genuinely addresses a pressing social need.” This enquiry
entails “a strict comparison of the particular means with the particular and desired
end.”’ (emphasis added)
v Relationship between reasonableness and proportionality: ‘It is therefore
evident that proportionality and reasonableness are intertwined, since
reasonableness also requires the weight of the relevant considerations to be fairly
balanced and forbids unduly oppressive decisions. A disproportionate decision is
therefore an unreasonable decision.
v ‘The principle of proportionality has been adopted in many countries. A number
of explanations have been offered for its widespread acceptance. First, it is said to
be “a standard-based doctrine that allows for flexibility in the development of law
and does not bind the court to a certain path.” Second, it “is effective in managing
conflicts, especially in divided societies, and in lowering the stakes of politics in
such societies, as it is effective at reducing ideological debates to factual ones.” It
is also said to be “an empty concept that allows the courts to do whatever they
want.”’ (emphasis added)
v Proportionality, discretion and deference: ‘As in the case of reasonableness,
proportionality raises a question as to whether, and the extent to which, the courts
should defer to the decision-maker. In other words, how intensely should courts
review administrative decisions on the grounds of proportionality? In practice,
“proportionality is applied with varying degrees of intensity, ranging from a
deferential approach to a rigorous and searching examination of the jurisdiction
for a measure which has been challenged.” Much therefore depends on the nature
of the measure in question. For example, courts are deferential in reviewing the
discretionary policy choices of administrators. In such cases, they take the
approach that they should not substitute their judgment for that of the
administrator, and “will only overturn the policy choice if it is clearly or manifestly
disproportionate,” particularly “where the policy choice required the weighing of
complex variables.” However, where proportionality is used to challenge the
violation of rights, courts will perform “a searching inquiry into the suitability and
necessity elements of proportionality.” Courts will also perform a searching inquiry
where a claimant uses proportionality to claim that a penalty or financial burden is
excessive. Hence, the courts reason that such penalties and financial burdens “can
be struck down without thereby undermining the entirely of the underlying policy.”
These examples demonstrate that courts will consider various factors in
determining how intensely they should review administrative decisions on
this basis (or that of reasonableness), including: the nature of the
administrative scheme under review, the subject matter of the decision, the
importance of countervailing rights or interests, and the extent of the
interference with the right or interest.’ (emphasis added)

Ø Proportionality in the context of Article 24 of the Constitution of Kenya 2010

v Although the Constitution’s Bill of Rights grants Kenyans various rights and
freedoms, it also provides that these rights can be limited.
v However, Article 25 of the Constitution provides for rights that cannot be
limited including: freedom from torture and cruel, inhuman or degrading
treatment or punishment; freedom from slavery or servitude; the right to a fair
trial; and the right to an order of habeas corpus.

v Article 24—Limitation of rights and fundamental freedoms

15
 (1) A right or fundamental freedom in the Bill of Rights shall not be limited
except by law, and then only to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and fundamental
freedoms of others; and
(e) the relation between the limitation and its purpose and whether there
are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or
fundamental freedom—
…
(c) shall not limit the right or fundamental freedom so far as to derogate
from its core or essential content.

v As can be seen, the provisions of Article 24 of the Constitution include the factors
considered in a proportionality test to determine whether an administrative action
is reasonable or justifiable to limit a right. These include:
• Nature of rights
• Purpose of limitation
• Nature and extent of limitation
• Relationship between limitation and purpose
• Alternatives available: less restrictive means to achieve purpose.
v Article 24 therefore requires judges to use a ‘proportionality test’ to weigh
the value gained by limiting one’s rights against the value of protecting
one’s rights in any given case.

Ø Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38
identified four issues in particular for consideration under proportionality review:
1) Whether the legislative objective is sufficiently important to justify limiting a
fundamental right
2) Whether the legislative objective is rationally connected to the means used to
achieve it (suitability)
3) Whether the means used are no more than is necessary to accomplish that
objective (necessity)
4) Whether a fair balance has been struck between the rights of the individual and
the interests of the community (‘proportionality stricto sensu’ or a test of fair
balance)

Ø Lord Woolf et al, De Smith’s Judicial Review (8th Edn, London: Sweet & Maxwell, 2019)
636-641
Ø ‘Insofar as the general concept of proportionality is a test requiring the decision-maker to
achieve a fair balance, it provides an implicit explanation for some of the existing judicial
interventions on the ground of unreasonableness, particularly under two of the categories of
unreasonableness we have identified above, namely, those held invalid because they manifestly
failed to balance one or more (relevant) consideration, and those where the decision was held
to be unreasonably onerous or oppressive. Under the first of these, the courts evaluate whether
manifestly disproportionate weight has been attached to one or other considerations relevant to

16
 the decision. Under the second, the courts consider whether there has been a disproportionate
interference with the claimant’s rights or interests. There will of course always be an examination
of rationality in its narrow sense of logical connection between ends and means.’ (emphasis
added)
Ø ‘As a mere test of “fair balance”, proportionality is not therefore alien to English law. Article
20 of Magna Carta provides that “For a trivial offence, a free man will be fined only in
proportion to the degree of his offence, and for a serious offence correspondingly, but
not so heavily as to deprive him of his livelihood”.’ (emphasis added)
Ø Proportionality as a structured test of justifiability in European Union Law
v ‘A more sophisticated version of proportionality provides a structured test—a series
of questions for the court to address in assessing whether the impugned decision is
justifiable.’
v ‘Proportionality is applied by the European Court of Justice and the Court of First
Instance to test the lawfulness of Union action or the action of Member States where
Union law applies. It applies in domestic courts where European Union law is
engaged. Here the courts ask first whether the measure which is being
challenged is suitable to attaining the identified ends (the test of suitability).
Suitability here includes the notion of ‘rational connection’ between the means and
ends. The next step asks whether the measure is necessary and whether a less
restrictive or onerous method could have been adopted (the test of necessity,
requiring minimum impairment of the right or interest in question). If the
measure passes both tests the court may then go on to ask whether it attains a
fair balance of means and ends. It is important to note here that the burden of
justification in such cases falls on the public authority which has apparently infringed
the rights of the claimant or offended a norm of European Union law.’ (emphasis
added)
Ø Structured proportionality in English law
v ‘In [R. v Secretary of State for the Home Department Ex p. Daly [2001] UKHL
26 (Daly)]…, a case which came to be decided before the [UK Human Rights Act]
came into force, the House of Lords adopted the test of proportionality … it was said
that:

“When determining whether a limitation (by an act, rule or decision) is

arbitrary or excessive the court should ask itself: whether: (i) the
legislative objective is sufficiently important to justify limiting a
fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair
the right or freedom are no more than is necessary to accomplish the
objective”.’

Ø ‘Clearly this test is, as Lord Steyn said in Daly, “more sophisticated than the traditional (i.e.
unreasonableness) ground of judicial review”. It is much more than the “fair balance” test. It
requires the court to seek first whether the action pursues a legitimate aim (i.e. one of the
designated reasons to depart from a Convention right, such as national security). It then asks
whether the measure employed is capable of achieving that aim, namely, whether there is a
“rational connection” between the measures and the aim. Thirdly it asks whether a less
restrictive alternative could have been employed. Even if these three hurdles are achieved,
however … there is a fourth step which the decision-maker has to climb, namely, to
demonstrate that the measure must be “necessary” which requires the courts to insist that the
measure genuinely addresses a “pressing social need”, and is not just desirable or reasonable,
by the standards of a democratic society.’
Ø ‘In … Leech [R. v Secretary of State for the Home Department Ex p. Leech [1994] Q.B.
198], in which the Court of Appeal upheld the constitutional right of a prisoner to access to
the courts. The question was whether the interference with a prisoner’s mail permitted by the

17
 regulations was broad enough to infringe that right. The test adopted by Steyn LJ to decide
that question was whether there was a “self-evident and pressing need” for such a power.
None was demonstrated. The language of proportionality was thus explicit...’

R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696

Westlaw Case Digest

Abstract
A direction of the Secretary of State prohibiting the broadcasting of direct speech from those representing
proscribed terrorist organisations was not ultra vires. By directions issued under the Broadcasting Act 1981
and the licence and agreement the Secretary of State required broadcasters to refrain from broadcasting any
matters by or from persons who represented proscribed terrorist organisations where the "matter" supported
or encouraged support of the organisation. A, broadcasters, sought judicial review of the decision, arguing
that it contravened the European Convention on Human Rights 1950 and conflicted with their duty under
the Act and the licence and agreement to preserve impartiality. The Divisional Court and Court of Appeal
dismissed the application.
Held, dismissing the appeal, that the Convention was not part of English law and the wording of the Act
was clear so that there was no presumption that the Secretary of State had to exercise his powers in
conformity with the Convention. It was not possible to say that the restrictions imposed were not justified
by the public interest in combating terrorism, and so it could not be said that the Secretary of State exceeded
his discretion or power (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223, [1947] 11
WLUK 26 applied).

18
Bank Mellat v HM Treasury [2014] A.C. 700

Westlaw Case Digest—Summary

Measures taken by the Treasury under the Counter-Terrorism Act 2008 Sch.7 Pt 3 para.13 to restrict the access of an Iranian bank and
its UK subsidiaries to the UK financial markets on the ground that it posed a significant risk to national security by providing banking
services to those involved in the development or production of nuclear weapons in Iran were arbitrary and disproportionate as well as
being unlawful because of a failure to give prior notice and an opportunity to make advance representations.
Abstract
The appellant Iranian bank (B) appealed against a decision ([2011] EWCA Civ 1) upholding measures taken by the respondent Treasury
to restrict B's access to financial markets in the United Kingdom.
The Treasury had imposed the restriction because B had been identified as having assisted Iran's nuclear weapons programme by
providing banking and financial services to entities involved with them. The Treasury had made a direction under the Counter-
Terrorism Act 2008 Sch.7 Pt 3 para.13 prohibiting all persons operating in the UK financial sector from having any commercial dealings
with B or its UK subsidiaries. The direction was laid before Parliament in October 2009 and came into force three days later. B applied
under s.63 of the Act to set the order aside. It relied on a substantive argument that the order was irrational and disproportionate, and
that the Treasury had failed to give adequate reasons for making it and/or its reasons were vitiated by irrelevant considerations or
mistakes of fact. It also relied on a procedural argument that the Treasury had failed to give it an opportunity to make representations
before making the order, as required by common law and by the European Convention on Human Rights 1950 art.6 and protocol 1
art.1. The High Court and the Court of Appeal dismissed B's appeals under both heads.
Held—Appeal allowed:
(1) (Lords Neuberger, Hope, Dyson and Reed dissenting) The essential question raised by B's substantive objections was whether the
interruption of commercial dealings with B in the UK's financial markets bore some rational and proportionate relationship to the
statutory purpose of hindering the pursuit by Iran of its weapons programmes. There were two serious difficulties about the conclusions
of the courts below: first, they did not explain, let alone justify, the singling out of B, and second, their justification for the order was
different to that advanced by ministers when the direction was laid before Parliament. The order had initially been explained as being
attributable to specific concerns about B. However, both lower courts found that justification was not in any problem specific to B,
but in a problem with Iranian banks generally. They considered the direction to be the only reasonably practicable means of ensuring
that the facilities of an Iranian bank with international reach would not be used to facilitate Iran's weapons programme, yet the direction
made no attempt to place restrictions on every Iranian bank, only on B. That was an arbitrary and irrational decision, as well as being a
disproportionate measure. B's substantive challenge to the order was therefore made out (see paras 19-20, 24, 26-27 of judgment) (Per
Lords Neuberger, Hope, Dyson and Reed) The Treasury had a wide margin of appreciation and sufficient grounds had been shown
for making the direction only against B (paras 64-130, 132-133, 165-177, 197-201). (2) (Lords Hope, Reed and Carnwath dissenting) B
ought to have received notice of the Treasury's intention to make the direction and to have been given an opportunity to make
representations. Those were among the oldest principles of public law. The only ground on which it could be said that the Treasury
had no duty to consult B in advance was that such a duty was statutorily excluded. It was not enough for the Treasury to argue that the
statutory right of recourse to the courts provided by s.63 was enough to satisfy any duty of fairness; it was not implicit in s.63 that the
right of recourse to the courts was the sole guarantee of fairness, nor was it implicit that what the common law would otherwise require
to achieve fairness was excluded. The Treasury also failed in its argument that the direction was required to be made in subordinate
legislation, which was not an area where the courts could imply a duty of fairness or prior consultation; the lawfulness of a statutory
power to make delegated legislation was reviewable by the courts. A statutory instrument was an instrument of the minister, who was
empowered by the enabling Act to make it. The fact that it required the approval of Parliament did not alter that. The focus of the
court was therefore on his decision to make it, not on Parliament's decision to approve it. The Treasury's direction designating B was
unlawful for want of prior notice or any procedure enabling it to be heard in advance. It was unnecessary to consider whether a duty
of prior consultation arose by virtue of art.6 of the Convention (paras 28-29, 33-49). (Per Lords Hope, Reed and Carnwath) There was
no provision in Sch.7 for a designated person to be given a hearing before the order was made and, although the absence of such a
provision did not automatically mean that Parliament had not intended there to be any such entitlement, it was a pointer towards such
an intention. It was not for the courts to re-write the scheme intended by Parliament (paras 55-63, 134-159).

19
R. v. Oakes [1986] 1 S.C.R. 103, 1986 SCC 7

This is a case decided by the Supreme Court of Canada which established the famous Oakes test, an
analysis of the limitations clause (Section 1 of the Canadian Charter of Rights and Freedoms) that allows
reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free
and democratic society.

Background:
An individual named David Edwin Oakes was caught with vials of hash oil as well as $619.45.
Accordingly, he was charged with intended trafficking, under s.4(2) of the Narcotic Control Act (NCA),
despite Oakes’ protests that the vials were not meant for trafficking and that the money he had was
from a workers’ compensation cheque.
Section 8 of the Narcotic Control Act provided for a shift in onus onto the accused to prove that he was not
in possession for the purpose of trafficking. Oakes made a constitutional challenge, claiming that the “reverse
onus” created by the presumption of possession for purposes of trafficking violated the presumption
of innocence guarantee under s.11(d) of the Charter.

Issues:
Is s.8 of the NCA unconstitutional?

Ratio Dicidendi:
The Court was unanimous in holding that the shift in onus violated both Oakes's section 11(d) rights and indirectly
his section 7 rights. Moreover, there was no rational connection between basic possession and the
presumption of trafficking, and therefore the shift in onus could not be justified in a free and democratic
society.
The Court described the exceptional criteria under which rights could be justifiably limited under section
1. The Court identified two main functions of section 1.
• First, ‘it guarantees the rights which follow it’; and
• Secondly, it ‘states the criteria against which justifications for limitations on those rights must
be measured’.
The key values of the Charter come from the phrase ‘free and democratic society’ and should be used
as the ‘ultimate standard’ for interpretation of section 1. These include values such as:
‘respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation
of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions
which enhance the participation of individuals and groups in society.’
Charter rights are not absolute and it is necessary to limit them in order to achieve ‘collective goals of
fundamental importance’.
The Supreme Court of Canada presented a two-step test to justify a limitation:
1) First, it must be ‘an objective related to concerns which are pressing and substantial in a free
and democratic society’, and second it must be shown ‘that the means chosen are reasonable
and demonstrably justified’.
2) The second part of the test, described as a ‘proportionality test,’ requires the invoking party to
show:
‘I, the measures adopted must be carefully designed to achieve the objective in question. (They must not
be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected
to the objective.)
II, the means ... should impair “as little as possible” the right or freedom in question.
III, there must be a proportionality between the effects of the measures which are responsible for limiting
the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.’
In applying this test to the facts, the Court found that section 8 does not pass the rational connection test as
the ‘...possession of a small or negligible quantity of narcotics does not support the inference of trafficking ... it would be
irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of 20
narcotics.’ Therefore, section 8 of the Narcotics Control Act is in violation of the Charter and is of no
force or effect.
Handyside v. the United Kingdom [1976] ECHR 5

Facts
Richard Handyside was the owner of “Stage 1” publishers. He purchased British rights of “The Little Red
Schoolbook”, written by Søren Hansen and Jesper Jensen. The book was initially published in 1969 in
Denmark and translations were later published in Belgium, Finland, France, West Germany, Greece, Iceland,
Italy, the Netherlands, Norway, Sweden, and Switzerland as well as several non-European countries. One of
the chapters contained a 26-page section concerning “Sex”. Handyside sent out several hundred review
copies of the book, together with a press release, to a selection of publications from national and local
newspapers to educational and medical journals. Advertisements were also placed for the book. The book
became subject of extensive press comment, with mixed reactions with regards to the content.
After receiving a number of complaints, the Director of Public Prosecutions asked the Metropolitan Police
to investigate whether the book breached obscenity laws. As a result, more than a thousand copies of the
book were provisionally seized under the Obscene Publications Act, together with leaflets, posters,
showcards, and correspondence relating to the book’s publication and sale. Subsequently, summonses were
issued against Handyside for having in his possession obscene books for publication for gain. Handyside
ceased distribution and advised bookshops accordingly. On trial, Handyside was found guilty of possessing
obscene publications for gain, fined and ordered to pay costs. His appeal was unsuccessful.

Decision Overview
The European Court of Human Rights held that Handyside’s conviction constituted an interference with the
right to freedom of expression which had been ‘prescribed by law’ and pursued the legitimate aim of
protecting morals; at issue was whether the interference had been ‘necessary in a democratic society’.
The Court considered that there was no European consensus on the protection of public morals, particularly
as regards children. Therefore, States should be left a margin of appreciation in interpreting whether a
particular measure is ‘necessary’. At the same time, the Court stressed that the test of ‘necessity’ was a strict
one: “[W]hilst the adjective ‘necessary’ … is not synonymous with ‘indispensable’ … the words ‘absolutely
necessary’ and ‘strictly necessary’ …, neither has it the flexibility of such expressions as ‘admissible’,
‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’. [para. 48]
The Court further stated that it was necessary to pay the utmost attention to the principles that characterize
a ‘democratic society’. In particular, it held that, “[f]reedom of expression constitutes one of the essential
foundations of such a society, one of the basic conditions for its progress and for the development of every
man. Subject to [legitimate restrictions] it is applicable not only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance
and broadmindedness without which there is no “democratic society”. This means, amongst other things,
that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate
to the legitimate aim pursued.” [para. 49]
The Court attached particular importance to the fact that the publication was aimed above all at children and
adolescents aged from twelve to eighteen. Being direct, factual and reduced to essentials in style, it was easily
within the comprehension of even the youngest of such readers. The applicant had made it clear that he
planned a widespread circulation, and having advertised it widely, he had set a modest sale price and chosen
a title suggesting that the work was some kind of handbook for use in schools. While the book contained
purely factual information that was generally correct and useful, it also included passages that young people
at a critical stage of their development could have interpreted as an encouragement to indulge in precocious
activities harmful for them or even to commit certain criminal offences. Furthermore, the Court considered
that the fact that no proceedings had been instituted against the revised edition, which differed extensively
from the original edition on the points at issue, suggested that the authorities had wished to limit themselves
to what was strictly necessary. For these reasons, the Court found no violation of the right to freedom of
expression.
Nevertheless, the Court maintained that in any event the UK need not have taken measures as Draconian as
the initiation of criminal proceedings leading to the conviction of Mr. Handyside and to the forfeiture and
subsequent destruction of the Schoolbook. The United Kingdom was said to have violated the principle of
proportionality, inherent in the adjective “necessary”, by not limiting itself either to a request to the applicant
to expurgate the book or to restrictions on its sale and advertisement. 21
Kenyan Cases Discussing the Fundamental Principles of Administrative Law

Peter Ngunjiri Maina v DPP & 2 Others [2017] eKLR Prof Ngugi, J, rephrasing Odunga, J’s decision in R
v DPP & 2 Others Exparte Nomoni Saisi [2016] eKLR, he stated:

It is now clear that even in the exercise of what may appear to be prima facie
absolute discretion conferred on the executive, the court may interfere. The
court can only intervene in the following situations:
1. Where there is an abuse of discretion;
2. Where the decision-maker exercises discretion for an improper purpose;
3. Whether decision-maker is in breach of the duty to act fairly;
4. Whether decision-maker has failed to exercise statutory discretion
reasonably;
5. Where the decision-maker acts in a manner to frustrate the purpose of the
Act donating the power;
6. Where the decision-maker fetters the discretion given;
7. Where the decision-maker fails to exercise discretion;
8.Where the decision-maker is irrational and unreasonable.

In Republic v Director of Public Prosecutions & another Ex parte Patrick Ogola Onyango & 8 others [2016] eKLR
it was held:

The DPP’s prosecutorial powers have been challenged. Orders of certiorari and
prohibition are sought by the Applicants to stall the decision to prosecute them as well
as the ongoing prosecution. Ordinarily, these are orders sought to ensure jurisdictional
control and to assist the court in the review and suspension of inferior tribunals and
bodies exercising powers conferred by statute (and by the Constitution).It should now
be an acceptable and clear principle that judicial review may be made both on
substantive grounds as well as procedural grounds. Where review is sought on
substantive grounds it may actually touch on the merits of the decision. Thus review
may be sought on grounds of ultra vires (excess of powers): see Credit Suisse vs.
Allendale Council [1997] QB 307. Review may also be made where there is alleged
abuse of discretionary powers which may include taking into account irrelevant
considerations or the exercise of discretionary power for improper purposes and
unreasonableness or irrationality. Thirdly as well exercise of discretion may invite
proportionality. Errors of law or mistake of fact may also invite judicial review. This is
public office or body entrusted with discretion must direct itself properly on the law
or its decision may be declared invalid: see Republic vs. Home Secretary Ex p Venables
[1998] AC 407 where it was also noted that the notion of error of law goes wider than
a mere mistake of statutory interpretation. I may perhaps also add that acting
incompatibly with constitutional rights would also certainly entitle the court to
intervene by way of judicial review on any action taken or decision made by a public
body or authority: see Article 165(2)(d) of the Constitution. With regard to judicial
review on procedural grounds, much focus is laid on the statutory requirements leading
to the decision as well as the rules of fair procedure, consistently referred to as rules of
natural justice. It has been variously argued that judicial review is concerned with the
decision making process and never with the merits of the decision itself.

22
In the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 the
court stated and held thus:

In order to succeed in an application for judicial review, the applicant has to

show that the decision or act complained of is tainted with illegality, irrationality
and procedural impropriety ...Illegality is when the decision-making authority
commits an error of law in the process of taking or making the act, the subject
of the complaint. Acting without jurisdiction or ultra vires, or contrary to the
provisions of a law or its principles are instances of illegality. It is, for example,
illegality, where a Chief Administrative Officer of a District interdicts a public
servant on the direction of the District Executive Committee, when the powers
to do so are vested by law in the District Service Commission...Irrationality is
when there is such gross unreasonableness in the decision taken or act done,
that no reasonable authority, addressing itself to the facts and the law before it,
would have made such a decision. Such a decision is usually in defiance of logic
and acceptable moral standards...Procedural Impropriety is when there is a
failure to act fairly on the part of the decision-making authority in the process
of taking a decision. The unfairness may be in non-observance of the Rules of
Natural Justice or to act with procedural fairness towards one to be affected by
the decision. It may also involve failure to adhere and observe procedural rules
expressly laid down in a statute or legislative Instrument by which such
authority exercises jurisdiction to make a decision.

5. The Right to Participate/The Duty to Consult

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 38-40

v ‘[D]emocracy is essentially a process of making collective decisions. However,
what distinguishes democracy from other decision-making processes is that it
mandates effective participation of those likely to be affected by the decisions
in question.’
v ‘This explains why Dennis Galligan has observed that “the very idea of
democracy turns on citizens participation in the political process.” It is only by
participating in public decision-making processes, which are political in nature,
that individuals and groups can ensure that their needs and interests are fully
met. Participation not only enhances the quality of decisions but also the
prospects of their successful implementation. And where individuals have
intimately been involved in public decision-making processes, they are likely to
find such processes to be legitimate.’
v ‘The right to participate and the duty to consult should therefore be seen as
corollaries. That is, public authorities have a duty to consult those likely to be
affected by their decisions so that the latter can, through participation, make
their views known and influence the substance of the decisions.’

23
v ‘While participation is crucial for the attainment of democratic decision-
making, it is often a problematic concept in practice, principally due to
ignorance, power dynamics and lack of access to information.’
v ‘Empirical research has shown that “even when the state creates opportunities
for dialogue and debate and is capable of responding, some people, particularly
those living in poverty or subject to discrimination and exclusion, are too
alienated or oppressed to enter the debate.” Such people are often unable to
participate meaningfully due to “embedded inequalities in status, technical
knowledge and power.” For example, “For people living in poverty, subject to
discrimination and exclusion from mainstream society, the experience of
entering a participatory space can be extremely intimidating.” Further, research
has demonstrated that when the poor try to enter public debate “they find
themselves silenced through not being able to speak the ‘right’ language – or
they may be ignored or threatened because more powerful groups believe they
have no right to a voice.”’
v ‘It, therefore, becomes necessary to break these barriers, if participation is to
be meaningful. One attempt to respond to these challenges is now being made
in the context of the concept of “legal empowerment,” which has been defined
as “the use of legal processes to increase disadvantaged populations’ control
over their lives.”’
v ‘Legal empowerment is thus said to be both a process and a goal: as a process,
it involves activities aimed at increasing the control of disadvantaged
populations over their lives; as a goal, it refers to their actual achievement of
that control.’
v ‘Legal empowerment views the question of participation from the perspective
of power, and contends that legislative efforts to give disadvantaged groups
control over decision making and processes affecting their lives are more likely
to produce results when accompanied by social mobilization initiatives. In
practical terms, legal empowerment entails strengthening the roles, capacities,
and power of the disadvantaged groups so that they can participate more
effectively in public decision making processes. It is also interesting to note
that in doing so, the concept recognizes that “most legal issues affecting the
poor are handled not by judiciaries but by administrative law, local
governments, alternative dispute resolution, and informal processes.”’
v ‘Effective participation also requires access to information… the democratic
process also presupposes enlightened understanding, meaning that in order to
influence public decisions, individuals must have the knowledge they require
to decide what is best for them. Accordingly, democracy imposes a duty on the
government and its agencies to provide “society with substantial information
about its own, and the society’s functioning.” For example, the public should
have access to public administration documents.’
v ‘In addition, effective participation requires transparency in decision-making.
That is, public decision-making should, unless there is compelling justification
to the contrary, be made in public and in the open, so that citizens can judge
for themselves whether public authorities have in fact considered their views.’
v ‘Secondly, access to information enhances the transparency of public decision-
making. Thirdly, access to information allows citizens to discover the content
of the material that public authorities use to make decisions, thereby enabling
them to participate on a more equal footing in the public decision-making.’
v ‘Access to information facilitates accountability. In other words, by placing the
work of public authorities under the microscope, it makes it possible for

24
 citizens to supervise or monitor what they do. For these reasons, many
countries now appreciate the significance of access to information, and have
enacted freedom of information laws which give individuals the right to access
information held by the government and its agencies without requiring them
to demonstrate any legal interest or standing. Under these laws, individuals can
access such information without explaining why or for what purpose they need
them.’

6. Justification
Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 40-42
v ‘Justification, or the giving of satisfactory reasons for decisions, is said to be
the hallmark of good administration. Further, it is desirable that reasons for
decisions should be set out in writing. This is likely to ensure that the reasons
for decisions have been properly thought out.’
v ‘Justification has many advantages. First, the obligation to give reasons helps
administrators “to keep to the legally straight-and-narrow,” so that they do not
expose themselves to legal challenge. Second, justification enhances
accountability by exposing the decision-maker to scrutiny, thereby helping to
ensure that power is not exercised arbitrarily. It also “facilitates transparency,
which, in turn, enables citizens and other public officials to evaluate, discuss,
and criticize governmental action.” Third, justification is a requirement of
fairness; thus, a refusal to give reasons “may be plainly unfair.” Fourth,
justification “encourages a careful examination of the relevant issues, the
elimination of irrelevant considerations, and consistency in decision-making.”
Fifth, published reasons can provide guidance to others on the decision-
maker’s likely future decisions, thereby deterring applications that would be
unsuccessful. Sixth, justification “may protect the decision-maker from
unjustified challenges, because those adversely affected are more likely to
accept a decision if they know why it has been taken.” Seventh, justification
“increases public confidence in the decision-making process.” Beyond these
instrumental advantages, justification affirms the dignity of individuals by
treating them “as rational moral agents who are entitled to evaluate and
participate in a dialogue about official policies on the basis of reasoned
discussion.”’ (emphasis added)
v ‘What, exactly, does the duty to give reasons require of the decision-maker?
According to Megaw, J., in the English case of Re Posyer and Mills
Arbitration, “[p]roper, adequate reasons must be given. The reasons that are
set out must be reasons which will not only be intelligible, but will deal with
the substantial points that have been raised.” That is, the reasons given must
not only be “both adequate and intelligible”, meaning that they must “rationally
relate to the evidence and be comprehensible.” Courts will therefore strike
down decisions if the reasons given are improper (in the sense of showing that
improper matters were taken into account), or if the reasons given are
inadequate (in the sense of not dealing adequately with the principal issues), or
if the reasons given are intelligible or obscure (for example, by being
contradictory or leaving substantial doubt as to what matters the decision-
maker took into account).’ (emphasis added)
v ‘In Kenya, Article 47 of the 2010 Constitution provides for the principle of
justification by stating that a person whose rights have been, or are likely to be,

25
 adversely affected by administrative action has a right to be given written
reasons for the action.

7. Legitimate Expectations
Ø Lord Woolf et al, De Smith’s Judicial Review (8th Edn, London: Sweet & Maxwell, 2019) Ch
12 pgs 673-
v ‘[Legitimate] expectation arises where a where a decision-maker has led
someone affected by the decision to believe that he will receive or retain a
benefit or advantage (including that a hearing will be held before a decision is
taken). It is a basic principle of fairness that legitimate expectations ought not
to be thwarted. The protection of legitimate expectations is at the root of the
constitutional principle of the rule of law, which requires regularity,
predictability, and certainty in government’s dealings with the public.’
v ‘Initially, the legitimate expectation was employed to found a fair hearing: a
person’s legitimate expectations (to a benefit or advantage, including the
expectation of a hearing) could not be terminated without giving the person
the opportunity to advocate its retention.’
v Legitimate expectations of procedural fairness: ‘The term “legitimate
expectation” first made an appearance in the context of procedural fairness in
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch. 149. A foreign
student sought review of the Home Secretary’s decision to refuse an extension
of his temporary permit to stay in the United Kingdom. In rejecting the
student’s contention that he ought to have been afforded a hearing, Lord
Denning M.R. said obiter that the question of a hearing “all depends on
whether he has some right or interest, or, I would add, some legitimate
expectation, of which it would not be fair to deprive him without hearing what
he has to say”.’ (emphasis added)
v ‘Schmidt and the cases which followed it referred to the legitimate expectation
without analysing its scope or basis, and in particular without distinguishing it
from the right to a hearing arising from the existence of a protectable interest.
The distinction between the legitimate expectation and protectable interest
may not always be clear, particularly if the two overlap. However, the
underlying principles justifying one or the other are distinct. The legitimate
expectation derives its justification from the principle of allowing the individual
to rely on assurances given, and to promote certainty and consistent
administration. Such a justification is distinct from that which permits a person
to participate in the process of reach- ing a decision which may threaten his
rights or interests.’
v ‘In R. v Liverpool Corporation Ex p. Liverpool Taxi Fleet Operators’
Association [1972] 2 Q.B. 299 it was held that the Corporation’s decision to increase
the number of taxi licences without consulting the Operator’s Association was unfair
because the decision was in breach of an assurance to the contrary. Although the duty
to hear was not expressly justified by the doctrine of legitimate expectation in that
case, later cases adopted and explained the decision on that basis.’ (emphasis added)
v ‘In 1983 the Privy Council [in Attorney General of Hong Kong v Ng Yuen Shiu
[1983] 2 A.C. 629] quashed an order of the Hong Kong government to deport an

26
 immigrant in breach of a promise to give immigrants a fair opportunity to present
their case in advance of deportation. The failure to implement the promise was held
not to be in the “interest of good administration”.’
v Definition of legitimate expectation in the GCHQ case: ‘The first attempt at a
comprehensive definition of the principle of legitimate expectation was provided by
the House of Lords in Council of Civil Service Unions v Minister for the Civil
Service (“the GCHQ case”) [1985] A.C. 374. A bare majority of their Lordships
rested their conclusion on the fact that, but for national security, there would have
been a duty on the Minister to consult with the Union, on the ground that the civil
servants had a legitimate expectation that they would be consulted before their trade
union rights were taken away. Lord Diplock stated that, for a legitimate
expectation to arise, the decision:
“must affect [the] other person ... by depriving him of some benefit or
advantage which either (i) he had in the past been permitted by the
decision-maker to enjoy and which he can legitimately expect to be
permitted to continue to do until there has been communicated to him
some rational grounds for withdrawing it on which he has been given an
opportunity to comment; or (ii) he has received assurance from the
decision-maker will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should not be
withdrawn.”’ (at 408–409) (emphasis added)
v ‘This definition indicates the two ways in which the expectation may found the right
to a hearing. First, the expectation may be based upon an assurance that a past benefit
(such as the right to trade union membership in GCHQ) will continue. In such a case
the benefit may not be denied without a hearing. However, the reference by Lord
Diplock to past advantage or benefit is unduly restrictive. The expectation may also
surely extend to a benefit in the future which has not yet been enjoyed but which has
been promised.’ (emphasis added)
v ‘Second, the expectation may be based upon an assurance of a hearing itself, which
should not be denied. In the GCHQ case Lord Fraser held that the civil servants
enjoyed a legitimate expectation that they would be consulted before their trade union
membership was withdrawn. The expectation was in his view grounded on the fact
that prior consultation had in the past been the standard practice when conditions of
service were significantly altered.’ (emphasis added)
v Voluntary compliance with fair procedures: ‘If a body which is entitled to reach a
decision without any prior hearing elects to give a hearing before coming to its
decision, can that decision be impugned on the ground that the hearing did not
conform to the standards of fairness? … I am under no obligation to give a hitchhiker
a lift in my car, but if I choose to give him a lift I owe him the same duty of care as I
would if he were a fare-paying passenger and I were a common carrier or bound by
contract to convey him. Whatever the position may have been in the past, it seems
clear today that by providing a voluntary hearing the decision- maker will have induced
a legitimate expectation of fairness and the hearing will therefore have to conform to
the standards appropriate to the decision being made.’
v Legitimate expectation of substantive benefit: ‘When considering the
procedural, as opposed to substantive aspects of the legitimate expectation, the
promise or representation or conduct which creates the expectation will only require
that the person receive a fair hearing. The expectation therefore extends only to the

27
 opportunity to make representations or to any other component of a fair hearing, for
example, the duty to give reasons. Once the duty to give the hearing has been fulfilled
there is not necessarily any further duty to provide the actual substance of the
expectation. From the mid-1980s the English courts began to uphold the protection
of substantive expectations under limited conditions. In what circumstances may a
decision which disappoints an expectation of a substantive benefit or advantage be
held invalid on that account? The answer to this question engages a number of
public law values. In particular, the relative virtues and defects of certainty and
flexibility must be kept in mind. A stubborn concern for internal consistency
may fetter an authority’s discretion… Fairness to the disappointed individual
(who might also have suffered financial loss in reliance upon the expectation)
may conflict with the authority’s duty to the public. And what will be the
practical effect of the principle? Will the assiduous fulfilment of legitimate
expectations deter public bodies from articulating their policies? Policies must
not be treated as a set of rules, yet, as Sedley LJ put it [in R. v Department of
Education and Employment Ex p. Begbie [2000] 1 W.L.R. 1115]: “a policy has
virtues of flexibility which rules lack and virtues of consistency which
discretion lacks”. Underlying these questions is the fundamental issue of the
degree of scrutiny (Wednesbury or more intrusive) which the courts should
employ when judging whether the non-application or alteration of a policy in
the public interest outweighs the unfairness to the individual who legitimately
expected the policy to be applied. The complexity of weighing these often
contradictory values may be the reason why a number of common law
jurisdictions have avoided or rejected at least the substantive legitimate
expectation, preferring to allow public decision-makers to keep their options
open and to retain the freedom to change their minds. The liberty of a public
body to change its policies is an important constitutional principle. Yet in this
country we have not only endorsed the legitimate expectation as a value worth
protecting, but have even sometimes flirted with its application even when the
expectation is induced by a representation that the authority has no legal power
to fulfil.’
v The source of a legitimate expectation: ‘In GCHQ, Lord Fraser indicated
the two ways in which a legitimate expectation may arise: “either from an
express promise given on behalf of a public authority or from the existence of
a regular practice which the claimant can reasonably expect to continue”. The
representations which induce a legitimate expectation can thus be
express or implied.’

Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 42-48

v ‘As the government and its agencies go about performing their duties, they
usually issue policies, procedures, guidelines, public statements and promises
that indicate to the public how they intend to go about exercising their
discretionary powers. It can be expected that such actions or intentions will
create expectations among the public regarding the manner in which these
powers will be exercised. In fact, the public would be disappointed where the
Government or its agencies acts in breach of its promise, or fails to apply a

28
 stated policy without good reason. Such actions would disadvantage those who
stood to benefit from the stated policy, and who may even have conducted
their affairs in reliance upon it.’
v ‘The principle of legitimate expectations seeks to ensure that the public does
not suffer such disappointments. It states that where a public authority has
represented – either by way of an express promise or implicitly by way
of past practice – that it will conduct itself in a particular way, the
persons to whom the representation was made may have a legitimate
expectation that the public authority will act as it had represented. A
legitimate expectation will therefore arise where a decision-maker has
led someone affected, or likely to be affected, by its decision to believe
that he or she will receive or retain a benefit or advantage.’ (emphasis
added)
v ‘Typically, the doctrine protects procedural benefits, although some
jurisdictions now deploy it to protect substantive benefits as well. What is,
therefore, unique about this doctrine is that it extends the duty to observe
procedural fairness “beyond the relatively narrow range of rights and interests
to which natural justice had traditionally applied.”. In other words, the promise
of a benefit creates a category of entitlement that courts will protect in the
same way that they protect property, contractual and tortuous interests.’
v ‘As Richard Moules has noted, it is the legitimate expectation arising out of the
conduct of the decision-maker – rather than the nature of the interest – that
attracts the application of the rules of natural justice. What remains debatable,
however, is whether in seeking to protect legitimate expectations courts should
go beyond insisting on the observation of procedural fairness by mandating
the grant of the promised benefits.’
v ‘This doctrine, which has gained acceptance in many common law jurisdictions
in recent years, was developed by English courts in cases such as Schmidt v
Secretary of State for Home Affairs and Council of Civil Service Unions
v Minister for the Civil Service (the GCHQ case). In Schmidt, it was held
that the holder of an entry permit had a legitimate expectation that he would
be able to enter and remain in the country according to the terms of the permit,
and that this expectation could not be defeated without granting him a chance
to put his views against a possible adverse decision.’
v ‘[I]n GCHQ, the House of Lords held that a union that had been regularly
consulted about workplace changes had a legitimate expectation that
consultation would continue in the absence of exceptional circumstances.
Here, Lord Diplock stated that for a legitimate expectation to arise, the
decision “must affect [the] person … by depriving him of some benefit
or advantage which either (i) he had in the past been permitted to
continue to enjoy until there has been communicated to him some
rational grounds for withdrawing it, on which he has been given an
opportunity to comment; or (ii) he has received assurance from the
decision-maker that it will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that they should not
be withdrawn.”’ (emphasis added)
v ‘Various rationales have been offered for the protection of legitimate
expectations.
1) One explanation English courts have given is that legitimate expectations should
be protected to ensure fairness. Thus in GCHQ, Lord Roskill though that the
doctrine was “vitally concerned [with] the duty to act fairly,” while Bingham LJ

29
 stated in R. v Inland Revenue Commissioners Ex p. MFK Underwriting
Agents Ltd that “the doctrine of legitimate expectation is rooted in fairness.” In
other words, the doctrine seeks to protect the right to fair treatment at the hands
of public authorities.
2) A second explanation from the English courts is that the purpose of the doctrine
is to prevent the abuse of power by public authorities. In R. v Inland Revenue
Commissioners Ex p. Preston, for example, the House of Lords held that it
would be an abuse of power for the Inland Revenue to renege on a guarantee it
had given. And in R. v North East Devon HA Ex p. Couglan, the Court of
Appeal combined these rationales when it stated that a legitimate expectation is
breached when the reneging of a representation is “so unfair as to amount to an
abuse of power.”
3) Further, the doctrine has been explained in terms of good administration. In R.
(on the application of Nadarajah) v Secretary of State for the Home
Department, for example, Laws LJ argued that the doctrine should be explained
by reference to good administration, which requires public bodies “to deal
straightforwardly and consistently with the public.”
4) Although the principles of fairness, abuse of power and good administration are
relevant rationales, the doctrine is perhaps best explained in terms of the rile of
law and the protection of trust in public officials. The rule of law is important here
because certainty and consistency in public administration occur where individuals
are able to rely on the promises and assurances given by public authorities. From
this viewpoint, legitimate expectations should be protected because it ensures
“overall clarity and predictability of the law.”
5) On the other hand, the trust principle holds that it would be unfair to breach a
legitimate expectation because that would violate the claimant’s trust in the public
authority that gave the undertaking in question. According to Christopher Forsyth,
therefore, “[Citizens] who have placed their trust in the promises of officials,
should not find, when the trust is betrayed, that the law can give no remedy.” This
is the viewpoint that Bokhary PJ adopted in the Hong Kong case of Ng Siu Tung
v Director of Immigration… He stated that the doctrine “facilitates the task of
governance” because “people feel able to put their faith in what their government
says and does.” Again from this viewpoint, the particular trust that the doctrine
protects is the trust that the individual has reposed in the decision-maker, pursuant
to a representation, to do what the latter has indicated it will do.’

v ‘Suppose that the individual has not relied on the representation of the
decision-maker? According to various judicial authorities, although actual
reliance on the representation will be helpful, it is not necessary in establishing
that a legitimate expectation exists. For example, in R. (on the application of
Bibi) v Newham LBC (No. 1), Schiemann LJ took the view that “reliance,
though potentially relevant in most cases, is not essential.” The justification for
this approach is that “insistence on reliance would apply particularly harshly to
the most vulnerable who are the least likely to be able to demonstrate a
particular detrimental reliance.” According to Paul Reynolds. This would “go
against the spirit of this doctrine which seeks to protect those who would
otherwise go unprotected.” Therefore, all the claimant needs to show is
that the public authority has made a representation, and that the
claimant trusted the public authority to stand by that representation.”
Another requirement that is enforced by courts in jurisdictions such as
South Africa is that it must have been lawful for the decision-maker to

30
 make the representation in question. In other words, a legitimate
expectation will not be founded on an illegality.’ (emphasis added)
v ‘Essentially, the doctrine protects the right to procedural fairness. It entitles
the individual who claims to have received a representation from a public
authority to the right of a fair hearing in two circumstances. Firstly, it protects
this right where the public authority has given the individual an assurance that
a past benefit – for example, the right to trade union membership in GCHQ
– will continue. In such a case, the benefit may not be denied without a hearing.
Arguably, this protection should “extend to a benefit in the future which has
not yet been enjoyed but which has been promised.” Secondly, it protects the
right where the representation was an assurance of a hearing. In GCHQ, for
example, Lord Fraser took the view that the legitimate expectation was
grounded on the fact that prior consultation had in the past been the standard
practice when conditions of service were significantly altered.’ (emphasis
added)
v ‘Does the doctrine also protect actual or substantive benefits? In other
words, can the existence of a legitimate expectation give rise to a substantive
remedy? The idea of applying the doctrine substantively – that is, compelling
public authorities to grant substantive benefits to individuals based on their
legitimate expectations of receiving those benefits – has not been widely
accepted. In part, courts have shied away from doing so because it would lead
them “very close to determining the outcome of administrative decision-
making, rather than only its procedure.” Nevertheless, some jurisdictions have
applied it in this manner. For example, courts have applied the doctrine
substantively in cases such as Re Preston [1985] AC 835, R. v North and
East Devon Health Authority Ex parte Coughlan [2001] QB 213, R. v
Secretary of State for Education and Employment Ex p. Begbie [2001] 1
WLR 1115, and R. (Nadarajah) v Secretary of State for the Home
Department [2005] EWCA Civ 1363. In Preston, the claimant had alleged
that he had reached an agreement with tax authorities that he would pay an
amount of tax and withdraw his outstanding claims, in exchange for which the
tax authorities would cease investigating him. Although he could not prove the
existence of the agreement, the House of Lords reasoned that he proved the
agreement, he could have sought judicial review on the grounds of unfairness.
In other words, the court would have protected his substantive legitimate
expectation not to be investigated by the tax authorities, pursuant to the
agreement.’
v ‘In Coughlan, the English Court of Appeal held that the expectations
generated by the promises or representations of public authorities must be
fulfilled in certain situations. In 1971, Ms Coughlan was badly injured in a car
accident. She was then hospitalized in New Court Hospital, where she stayed
until 1993, when the hospital authority persuaded residents to move to Mardon
House. She was then told that Mardon House would be her “home for life.”
However, in 1998, the health authority decided to close Mardon House and
relocate its residents. In doing so, it had regard to the undertaking it had given
Ms Coughlan and the other residents but concluded that the other institutions
would give them better services. Ms Coughlan sought judicial review of this
decision. The Court of Appeal held that, having regards to the undertaking
given in 1993 and Ms Coughlan’s reliance upon it, the decision to close Mardon
House was unfair and this an abuse of power. The court reasoned that in such
cases it has to “decide whether to frustrate the expectation is so unfair that to

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 take a new and different course will amount to an abuse of power.” Further, it
reasoned that “once the legitimacy of the expectation is established, the court
will have the task of weighing the requirements of fairness against any
overriding interest relied upon for the change of policy.” That is, the court
should balance the individual interest against the public interest. And if it then
finds that the individual interest outweighs the public interest, then it will
require the public authority to provide the promised benefit. In Ms Coughlan’s
case, this meant that Mardon House could not be closed and is residents
relocated unless the health authority could provide more persuasive reasons to
do so. This approach of the court has been criticized on the grounds that
assuming the “role of balancing or assessing questions of public interest in
administrative decision-making is apt to lead the court deep into the territory
of the executive arm of government.”’
v ‘The court in Begbie was alive to this danger. It reasoned that in such cases
the intensity of judicial review should depend om whether the policy in
question affects the public in general or only affects particular individuals, and
suggested that courts should be more intrusive in the latter cases, since it is
only in such cases “where the court can envisage clearly what the full
consequences of its intervention will be.” As Laws LJ explained, “The more
the decision challenged lies in what may inelegantly be called the macro-
political field, the less intrusive will be the court’s supervision… [I]n that field,
true abuse of power is less likely to be found, since within it changes of policy,
fuelled by broad conceptions of the public interest, may more readily be
accepted over the interest of groups which enjoyed expectations generated by
an earlier policy.’
v ‘The value of the doctrine of substantive legitimate expectations is that it
circumscribes the exercise of discretion. That is, it enables courts to restrict the
freedom of public authorities in administrative decision-making. And the
approach taken in Begbie should enable courts to refrain from unduly
interfering with executive decision-making in matters of general policy. The
European Court of Justice has taken a similar approach, under which it
protects substantive legitimate expectations only where it finds that the
individual’s interests outweigh the public interest underlying the
administrator’s purported action. That is, it “will enforce a legitimate
expectation and invalidate administrative action disappointing such
expectation where it finds a significant imbalance between the private and
public interests.”’
v ‘In the Kenyan context, although the 2010 Constitution does not explicitly
require the protection of legitimate expectations, it establishes the principle
that the authority assigned to a State Officer is a public trust. [under Article
73(1)(a) of the Constitution]. Arguably, this provision provides a firm basis for
protecting legitimate expectations in Kenya. The enforcement of procedural
and substantive legitimate expectations in Kenya would be essential to
rebuilding public confidence in the Government and its agencies. Public trust
in government is essential for social and political order. As Paul Craig and
Soren Schonberg have observed, “Trust is highly valuable because individuals
are more likely to participate in decision-making processes, to co-operate with
initiatives, and to comply with regulations devised by authorities which are
perceived as trustworthy.”’

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 8. Independence
Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 48-49
v ‘The term “independence” may be defined as “complete autonomy and
insusceptibility to external guidance, influence or control.” In the context of
administrative law, it serves the purpose of ensuring that the agencies of
government are able to carry out their statutory mandates in a manner that is
honorable. In particular, independence facilitates impartial decision-making in
that the decision-maker is not subject to the will of another, and is therefore
instrumental to the realization of the rule of law. However, complete autonomy
may not be desirable since agencies could abuse their powers. The idea is,
therefore, to grant them considerable autonomy while establishing suitable
accountability mechanisms. Measures to facilitate the independence of
agencies include insulating administrators from influences (whether internal or
external) that could corrupt their integrity or impartiality, and establishing
ethics regimes and codes of conduct (so that administrators do not participate
in the making of decisions where they have conflicts of interest). Further, it
entails giving administrators security in their positions so that they are
encouraged to decide cases without fear or favour, as required by the rule of
law ideal.’

9. Accountability
Ø Migai Akech, Administrative Law (Strathmore University Press, 2016) 49-51
v ‘Accountability may be defined as “the obligation to explain and justify
conduct.” It implies a relationship in which some actors have the right to hold
other actors “to a set of standards, to judge whether they have fulfilled their
responsibilities in light of these standards, and to impose sanctions if they
determine that these responsibilities have not been met.” In this relationship,
therefore, the “accountor” has an obligation to explain and justify his or her
conduct to the “account-holder.” Explaining and justifying conduct entails
different activities, such as providing information about performance, debate
of conduct, and judgment of the accountor by the account-holder. Further,
after judging the conduct of the accountor, the account-holder may either
choose to reward the accountor in the case of adequate performance, or
impose sanctions in the case of poor performance. Though accountability
always operates ex post, that is, after the conduct of the accountor,
‘accountability mechanisms can exert significant ex ante effects, since the
anticipation of sanctions may deter the powerful from abusing their positions
in the first place.”’
v ‘Accountability mechanisms include the following: supervisory
accountability, in which one body supervises the activities of another; fiscal
accountability, which are mechanisms through which funding agencies such
as the legislature can demand reports from, and sanction, agencies that they
fund; legal accountability which are mechanisms that require agencies to
abide by formal rules and to be prepared to justify their actions in those terms;
market accountability, in which an agency accounts to investors and
consumers, whose influence is exercised through markets; and public
reputational accountability, in which an agency seeks to be accountable by
maintaining a good reputation with the public. In practice, these accountability
mechanisms often overlap and jointly form what court be termed as public
accountability.’

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 v ‘In the context of democracy, accountability institutions or mechanisms serve
four primary functions. First, these mechanisms make it possible for the
public to call those holding public office to account. From this perspective,
representative democracy should be seen as a chain of principal-agent
relationships, in which the people (the primary principals) have transferred
their sovereignty to popular representatives, who, in turn, have transferred
their authority to ministers and public administrators. Accountability
mechanisms enable the people to call these agents to account for the exercise
of these delegated powers. Under ideal conditions, the people should have
sufficient information to enable them to scrutinize the conduct of these agents.
And where they find such conduct to be unsatisfactory, the people may then
indicate their displeasure by voting the offending representatives out of office.’
v ‘Secondly, accountability mechanisms enable the people to prevent abuse of
power and corruption. In this regard, these mechanisms can enable the people
to expose unauthorized, illegitimate, or unjust exercises of governmental
power. Thirdly, accountability mechanisms serve the purpose of keeping the
agents of the people on their toes, thereby helping the people to prevent abuses
of power and corruption since the agents are kept constantly aware of the fact
that they will be called upon to account for the exercise of the powers delegated
to them. Finally, accountability mechanisms serve the important function of
legitimating government in the perception of the citizenry. As mark Bovens
has observed, processes of public accountability in which administrators are
given the opportunity to explain and justify their intentions, and in which
citizens and interest groups can pose questions and offer their opinion, can
promote acceptance of government authority and the citizens’ confidence in
the government’s administration.’

Ø Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University
Press, 2008) section on accountability:
v ‘Accountability is a principle which requires public authorities to explain their
actions and be subject to scrutiny. It may also entail sanctions, such as
resignation from office or censure. Effective accountability depends on a
commitment to open government and rights to freedom of information. The
news media and pressure groups also play vital roles in ensuring accountability
is achieved.’
v ‘In a democracy, the ultimate form of public accountability is through
elections… However, elections can only provide periodic and partial
opportunities for calling those in power to account because much public sector
activity is carried out by unelected officials and appointees.’
v ‘Political accountability between elections is therefore important. In systems of
parliamentary government, ministers are members of parliament and hold
office individually and collectively for only so long as they enjoy the confidence
of their fellow members. Ministers are held to account on a day-to-day basis
through parliamentary questions (written and oral), in debates on the floor of
the parliamentary chambers, and through the work of policy scrutiny
committees.’
v ‘Courts too may be regarded as mechanisms for securing accountability.
Individuals, groups, and businesses may use judicial review procedures to
challenge the lawfulness of action taken by public authorities. Especially where
human rights are at stake, there is a growing ‘culture of justification’ in which
government must present cogent explanations for its actions to the courts. Yet,

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 quis custodiet ipsos custodies?—"who will watch the watchmen”? It is sometimes
said that the principle of judicial independence prevents judges being held to
account for their decisions. Certainly it would be constitutionally wrong for
government to impose sanctions on courts which made politically unpalatable
decisions. However, judges and courts are subject to accountability insofar as
they must explain and justify their decisions (for example, by giving reasoned
judgments in public).’

Questions to Consider
1. Write short notes on the following:
a. Legality
b. The Wednesbury unreasonableness
c. Proportionality
d. The right to participate/The Duty to Consult
e. Justification
f. Legitimate expectation
g. Independence
h. Accountability

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