Unreasonableness & Proportionality

Discussion points
What is irrationality as a ground for judicial review?
What is the idea of “wednesbury unreasonableness”?
Discuss the shift from unreasonableness to irrationality following GCHQ case.
Analyze the rise of proportionality as a fourth ground of Judicial review

GCHQ grounds

Council for Civil Service Unions v Minister for the Civil Service [1985] challenged
the banning of unions at GCHQ by the government, hence GCHQ case:
Lord Diplock set out the grounds as follows:
1. Illegality with many sub-grounds
2. Irrationality also termed Wednesbury unreasonableness
3. Procedural impropriety/natural justice
4. Proportionality as a ground was anticipated.

Irrationality

Under Lord Diplock's classification, a decision is irrational if it 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 could have arrived at it.“
Thus a decision by a Public authority can be considered as “IRRATIONAL”, if it is
Outrageous
in defiance of logic
in defiance of accepted moral standards
that no sensible person who had applied his mind to the question could have
arrived at it.

Lord Diplock further stated

Whether a decision falls within this category is a question that judges by their
training and experience should be well equipped to answer, or else there would
be something badly wrong with our judicial system.
To justify the Court's exercise of his, role, resort I think is today no longer needed
to viscount Radcliffe' s ingenious explanation in Edwards V Bairstow (1956) AC 14
of irrationality as a ground for a court's reversal of a decision by ascribing it to an
inferred unidentifiable mistake of law by the decision-maker, "Irrationality" by
now can stand upon its own feet as an accepted ground on which a decision may
be attacked by judicial review.

Note: Before the GCHQ case, Irrationality is considered as an inferred

unidentifiable mistake of law and after GCHQ case, it is now considered as a well
accepted ground for Judicial review.

Illustrating Irrationality

Here the courts may intervene to quash a decision where they consider it to be so
demonstrably unreasonable as to be "irrational"
Unlike illegality and procedural impropriety, the courts under this head look at
the merits of the decision, rather than at the procedure by which it was arrived at
or the legal basis on which it was founded.
The question to ask is whether the decision "makes sense".
In many circumstances cases listed under "illegality", may also be considered as
irrational.
According to Lord Diplock, Irrationality is simply another word for unreasonable.

Irrationality = Unreasonableness

In 1983, Lord Diplock in GCHQ case implied that ‘irrationality’ and‘ Wednesbury
unreasonableness’ in its narrow sense were effectively same thing.
Lord Diplock on irrationality in GCHQ case- Decision is so outrageous that no
sensible person would have arrived at it.
Lord Green on unreasonableness in Wednesbury Case- Decision being so
unreasonable that no reasonable authority could ever have come to it.
In 1948, Lord green laid down the principle of Wednesbury unreasonableness in
the land mark case of Associated Picture Houses vs. Wednesbury Corporation
[1948].

Wednesbury unreasonableness

A decision is considered to be Wednesbury Unreasonable if no reasonable person

in the same situation could ever make that decision
Ex: Red haired teacher dismissed for no other reason than the colour of her hair,
illustrates how absurd a decision needs to be to reach this standard.
The Petitioner has to show that the challenged decision is so unreasonable that
no reasonable authority could have come to it
History of Unreasonableness
Rooke’s case (1958)
Roberts V Hopwood (1925)
Short V Poole Corporation (1926)
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948]

Rooke’s Case (1598)

Commissioner of Sewers had the discretion to impose charges on nearby owners

for repairing a river bank.
However, this charge had been thrown on one adjacent owner.
Ideally, these charges ought to have been divided equally among all the owners
who benefited from the repairs.
Here court held that such a charge was inequitable and contrary to the rule of
reason and law.

Roberts v Hopwood (1925)

A local council was empowered under legislation to ‘pay its employees such
salaries an wages as it sees fit’.
It set a generous minimum wage, ignoring market conditions
The House of Lords held that In fixing the amount, they had fixed it by reference
to a matter which they ought not to have taken into account, and; to the
exclusion of those elements which they ought to have taken into consideration in
fixing a sum which could fairly be called a wage.
Lord Atkinson said: ‘The council... allowed themselves to be guided in preference
by some eccentric principles of socialistic philanthropy, or by a feminist ambition
to secure equality of the sexes in the matter of wages in the world of labour.’
Discretion of the council was limited by law. It was not free to pursue a socialist
policy at the expense of its rate payers.

Short V Poole Corporation (1926)

Warrington L.J. gave the example of the red-haired teacher, dismissed because
she had red hair.
Such decision is unreasonable in one sense.
In another sense it is taking into consideration extraneous matters.
It is so unreasonable that it might almost be described as being done in bad faith

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948]

An English law provided that cinemas could open on Sundays with the permission
from the local authorities “subject to such conditions as the authority may think
fit to impose”.
Associated Provincial Picture House Ltd applied for permission, and permission
was granted by the Wednesbury corporation on the condition that children under
the age of 15, whether accompanied by an adult or not, should NOT be admitted.
The Picture house blamed that the local authority, by imposing such condition,
had acted unreasonably
It was held that the local authority had not acted unreasonably in prohibiting
under age children
Judgement

Court held that it could not intervene because it can only do so where the
decision maker has gone beyond their legal powers.
Court can only intervene in cases where in making the decision,
the defendant took into account factors that ought not to have been taken into
account, or
the defendant failed to take into account factors that ought to have been taken
into account, or
the decision was so unreasonable that no reasonable authority would ever
consider imposing it.
The court held that the decision did not fall under any of these categories and the
claim failed.
To succeed under this ground, applicant must overcome a very high threshold of
proof. It is necessary to show that the decision is one that would not have been
reached by any reasonable person.

Wednesbury Principles

Lord Greene noted that, in general, the discretion of a public body must be
exercised "reasonably" - the Wednesbury principles:
The exercise of a discretion must be real and genuine;
In exercising a discretion, the decision-maker must have regard to relevant
matters and must disregard irrelevant matters;
A discretion must not be exercised for reasons of bad faith or dishonesty,
A discretion must be exercised for the purpose for which it was intended
The significance of Wednesbury Unreasonableness

Wednesbury unreasonableness is an English law case that sets out the standard of
unreasonableness of public-body decisions that would make them liable to be
quashed on judicial review, known as Wednesbury unreasonableness.
In order to succeed under the ground of irrationality, an applicant must overcome
a high threshold of proof.
It is not enough to establish that the impugned decision is one which a reasonable
person would not have reached.
Rather, it is necessary to show that the decision would not have been reached by
any reasonable person.

From Unreasonableness to Irrationality

In GCHQ Case, Lord Diplock specified that irrationality and Wednesbury

unreasonableness are the same thing.
Cases after GCHQ tend to use "irrational" (and unlawful) as opposed to
"unreasonable"

Overlap with Illegality

Some cases that were discussed under subcategories of illegality can be discussed
under irrationality as well.
Therefore, many counselors whilst challenging an exercise of a discretion by a
public authority via a writ application do not confide them to one ground, but
seek to establish as much grounds of judicial review as possible.
Some categories which confide both illegality and irrationality:
Fettering discretion by rigid policies
Lancelot Perera vs. National Police Commission (SSP- x –DIG- music director)
Bad faith
R vs. Derbyshire Country Council, ex parte Times Supplement- out of
vindictiveness didn’t publish ads in the most popular newspaper
Iirrelevant considerations-
Wheeler V Leicester City Council (1985)-Unlawful to prevent a rugby club use a
council training ground because of objection to participation by some of its
players in a tour to South
Improper purpose
Roberts V Hopwood- disregard economic factors and promote feminism

Criticisms on Wednesbury Unreasonable

Hinders the power of parliament

The concept of Wednesbury unreasonableness as a ground of review raises
concerns as to the extent to which both constitutional and practical limitations of
judicial power are maintained.
It has been suggested that the courts, when reviewing decisions under this
ground, essentially look at the substance result of the decision rather than the
process by which the decision is made.
By holding that an actual decision reached by an administrative body is deficient
on its face rather than considering the way in which the decision was made, the
courts are arguably usurping the power of Parliament.
High threshold
In R v Secretary of State for the Home Department, ex p Brind (1991),Lord Ackner
noted that the test for irrationality has sometimes been criticized for being too
high.
However, in his opinion, this was necessary in order to underline the fact that
judicial review is a supervisory rather than an appellate jurisdiction.
This observation highlights the constitutional dangers inherent in the judiciary
declaring decisions to be irrational.
If a decision is described as being 'absurd', or 'outrageous in its defiance of logic',
the merits of that decision are clearly being questioned. In effect, it could be
argued that the decision has been held to be wrong.
Accordingly, arguments involving irrationality have rarely succeeded before the
courts, unless, that is, the decision can be said to have been totally unreasonable.
See Hall & Co v Shoreham-by-Sea Urban District Council (1964)

Hall & Co v Shoreham-by-Sea Urban District Council (1964)

Local authorities had the power to grant planning permission subject to such
conditions as the council 'think fi t'.
Plaintiff given permission to prepare and expand their land but the condition
given to them was to cover their own expenses and to provide a access road for
the owners within the near land and for the other general community.
Held :
it was not enough to say that the condition was unreasonable or unduly onerous.
In order to justify a declaration that the condition was ultra vires, it must be
shown that it was so unreasonable that no reasonable council could have
imposed it.
The condition was utterly unreasonable in that it sought to transfer the public
burden of constructing a road onto the private shoulders of the developer.
And also, the effect of such condition would be to convert a portion of the
plaintiff’s land into a virtual public highway with no compensation and
maintainable at their own expenses.

Proving Irrationality- High Threshold

Here due to the fact that under irrationality, judges look into the merits of the
case, this test imposes a high threshold of proof. That is to say petitioner
(claimant) must prove that the same decision would no have been reached by a
reasonable person in the same circumstance.
Although there is a high volume of cases that have raised and discussed this
ground; there are few reported instances of a decision being declared invalid on
the basis that it is Wednesbury unreasonable. Even where a decision is held to be
invalid on this ground, it is usually invalid on other grounds too.
Lord Hailsham said that wo reasonable persons can perfectly reasonably come to
opposite conclusions on the same set of facts without forfeiting their title to be
reasonable
This high threshold was discussed in the R v Ministry of Defence, ex parte Smith
(1996)

R v Ministry of Defence, ex parte Smith [1996]

This case concerned a number of military personnel who were known to be

homosexuals and/or engaging in homosexual activities.
A total of 4 were dismissed on these grounds, at which point they challenged the
decision in judicial review on the grounds that this decision violated their Article 8
rights to private and family life.
The Court of Appeal held that it was reasonable to dismiss them on the grounds
that they were homosexuals:
They noted that a higher standard ought to be applied in the circumstances
where a challenge is made on the grounds of reasonableness when it concerns
human rights infringements.
So, since this involved an infringement in human rights, a substantial justification
was required to show that it was not irrational.
This case was appealed to European Court of Human Rights

Smith and Grady v United Kingdom (1999)

Thus, in exparte Smith, Court of appeal of UK established that the threshold of

irrationality is a high one.

However, once it was appealed, the European Court of Human Rights reached the
opposite conclusion.

Court stated that “the threshold at which the High Court and Court of Appeal
could find the ministry of defence policy irrational was placed so high that it
effectively excluded any consideration by the domestic courts of the question of
whether the interference with the applicants' rights answered a pressing social
need or was proportionate to the national security

Court of appeal
Threshold to determine irrationality was placed so high
Therefore such high threshold excludedd any considerations of
Applicants rights and,
Proportionate to national security
Domestic courts (UK) on the High Threshold

In more recent times, the appropriateness of this high threshold has also been
questioned at the domestic level.
In R v Secretary of State for the Home Department, ex p Daly (2001), Lord Cooke
opined:
"I think that the day will come when it will be more widely recognised that the
Wednesbury case was an unfortunate retrogressive decision in English
administrative law, in so far as it suggested that there are degrees of
unreasonableness and that only a very extreme degree can bring an
administrative decision within the legitimate scope of judicial invalidation"

Sri Lankan Case laws on unreasonableness

Mohamed v Land Reform Commission (1996) 2 Sri.LR 124

Tenant continually paid the rent, but in few instances he couldn't pay the rent
Commissioner asked to evict from land.
Held-Commissioners' decision is unreasonable as it was seemed that the tenant
had no intension in avoiding paying rent, evident by his past continuous rent
payments.

Unreasonableness in FR Cases

In several jurisdictions including USA, India and Sri Lanka, the courts have used
doctrine of unreasonableness, in the form of Wednesbury principles or other
means, to widen the scope of equal protection of law
This can be identified as an attempt to borrow some administrative law principles
to widen the scope of equality provision in human right cases
FR Cases on reasonableness

Priyanganie v Nanayakkara (1996)1 Sri LR 399.

SC reiterated that discretionary powers can never be treated as absolute and
unfettered and
further stated that Article 12 provides safeguards based on the rule of law against
the arbitrary and unreasonable exercise of discretionary powers.
Suranganie Marapana v Bank of Ceylon (1997) 3 Sri LR 156.
Wijethunge J referred to the principle of unreasonableness in administrative law
and stated that they apply equally to the Board of Directors of the Bank of Ceylon.
In refusing an extension of service to the petitioner, the Bank was held to have
acted arbitrarily, and unreasonably, in violation of Article 12

PROPORTIONALITY

A Canon should not be used to kill a sparrow!

Illustration
Few Government workers were absent from duty thinking that a particular day
was holiday
Punishment – Termination for all the employees?
Is the punishment proportionate to the act committed?
GCHQ case

In GCHQ, Lord Diplock acknowledged that in the future, there may be additions to
the three heads which he identified.
One particular ground which he had in mind was proportionality.
Proportionality is a well-established principle in the administrative law of a
number of EU member states, and it is a principle which is recognized in EU law.
It is also a principle which is reflected in the jurisprudence of the European Court
of Human Rights.
The classical definition of proportionality has been given by none other than Lord
Diplock when his Lordship rather ponderously stated “you must not use a steam
hammer to crack a nut if a nut cracker would do” R v. Goldsmith (1983) 1 WLR
151, p. 155

Background

Originated in Europe - Primary importance as Judiciary is primary reviewer of

Administrative actions
Proportionality as a ground of judicial review considers the aim of decision-maker
and whether the means to achieve that objective are proportionate.
An Administrative authority while exercising 'Discretionary Power' should apply
sense of proportion. There should be a proper balance must be maintained
between any adverse effects which a decision may have on the rights, liberties or
interests of persons and the purpose which it pursues
If any Administrative Authority takes such grossly misappropriate and more
serious to the nature of misconduct, then such decision is arbitrary and hence
subject to Judicial Review .
Proportionality

Proportionality signifies that administrative action should not be more drastic

than it ought to be for obtaining desired results.
A public authority may not impose obligations on a citizen except to the extent to
which they are strictly necessary in the public interest to attain the purpose of the
measure.

It acts as a safeguard against the unlimited use of legislative and administrative

powers and is considered to be something of a rule of common sense where the
authority may only act to exactly the extent that is needed to achieve its
objectives.
In other words, it is an argument that the same objective could have been
achieved by some more proportionate means.
Once again, therefore, there are constitutional dangers with this argument. For a
court to hold that a decision or course of action was disproportionate would be
for it to come very close to substituting its own view for that of the decision-
maker.

R v Secretary of State for the Home Department, ex p. Daly (2001)

A prison policy requiring prisoners not to be present when their property was
searched and their mail was examined was stated to be unlawful.
The policy went beyond what was necessary and so was a disproportionate
interference in the prisoners’ right to respect for his correspondence.
It was also mentioned that there are real differences between the tests of
Wednesbury unreasonableness and as to proportionality of interference in
human rights.
Lord Cooke questioned the high standard of proof for Wednesbury
unreasonableness and instead applied the test for proportionality.
The test of proportionality looks at a legislative objective and then looks at
whether measures in place to achieve that objective are rationally connected to
the objective and whether they are also necessary
Thus Proportionality was used as an alternative to "irrationality“.

Proportionality and Irrationality

The doctrine of proportionality should not however be confused with that of

irrationality .
This is neatly illustrated in the Expate Smith litigation.
In R v Ministry of Defence Ex parte smith (1996) the Ministry of Defense’s policy
against inclusion of homo sexual men and women in armed forces were
questioned.
The CA stated that policy was not irrational because parliament supported the
policy.
On petition to the ECHR in Smith and gradly v UK the claimants success fully
contended that the Ministry of Defence policy Violated Art 8 ( Right to private
life ).
The ECHR held that the blanket policy which required automatic discharge on
basis of sexual orientation could not be justified as it was a disproportionate
interference with their right of private life.

The test of proportionality has a controversial element in that it requires court to

assess the quality of the decision made and to determine if the appropriate
balance between means and objective has been achieved.
Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39

A difference between wednesbury unreasonableness and proportionality is that

there is a structured test that proportionality formulates

Is there an infringement of a protected right or interest?

Is the infringement a necessary and proper response to a legitimate objective?
Is the objective sufficiently important to justify a breach in the right?
Is the breach of the right rationally connected to the objective?
Is the breach of the right no more than is necessary to achieve the object?
Having regard to these matters and to the severity of the consequences, has a fair
balance been struck between the rights of the individual and the interests of the
community.

Structured Proportionality Test

Legitimacy: Can government lawfully limit the right, freedom or protection? If so,
does the government action actually constitute a limitation or burden?
Suitability: Is the government action rationally connected to the objectives the
government is pursuing (are the means suitable for achieving the ends)?
Necessity: Is the government’s action the least restrictive means of achieving the
ends sought and/or ‘there is no obvious and compelling alternative’ that will
achieve the same ends while being less restrictive or burdensome?
Balancing: Do the benefits of the limitation (or the importance of the ends)
outweigh the cost of infringing the right, freedom or protection? This is often said
to be a value judgment seeking to balance the public interest against a private
right and is often referred to as ‘strict proportionality’
Application in Sri Lanka

The concept of proportionality has been used under the Sri Lankan administrative
law in many cases
the courts have used the concepts of reasonableness, natural justice, legitimate
expectation and proportionality to give meaning to fundamental rights contained
in the constitution; principally to clarify the content of the equality and equal
protection guarantee

Permawathie vs. Fowzie

Fernando J made a reference that the punishment is grossly disproportionate. The

petitioner who was a telephone operator in the Ministry of Health was interdicted
and charged with several acts of misconduct.
The inquiring officer acquitted her of all the serious charges. However, on the
Director General of Health Services held without adducing any reason, that all the
charges had been proved and dismissed her from service.
Finally court held that “there is no doubt that the petitioner's fundamental right
to the equal protection of the law has been infringed by the Public Service
Commission by reason of an arbitrary, unreasonable and grossly disproportionate
punishment….”