Admin law

Unreasonableness and irrationality

Introduction
The ultra vires doctrine is based on the concept of abuse of power. A central aspect of this in English
administrative law has been the concept of unreasonableness. The conventional wisdom is that
Parliament will rarely, if ever, specify that delegated discretion must be exercised reasonably. It is such
an obvious restriction upon the delegated power that it does not need to be spelt out. It is customary,
for ease of exposition if for no other reason, to present ‘categories’ of ultra vires, such as breach of
natural justice, unreasonableness or taking into account irrelevant considerations, but the reality is that
they all merge one into the other. A procedure might be so unfair that it is unreasonable for a decision-
making body to adopt it. A decision can be unfair, in the sense that it bears no relation to the evidence
before the decision making-body and in that sense it would be acceptable to also describe it as
unreasonable. To arrive at a conclusion without taking into account relevant considerations is not only a
specific manifestation of unreasonableness, but it could also be characterised as a defective procedure,
hence a breach of natural justice. The divisions are thus, to some extent, artificial and far from
watertight, many major decisions can as easily be placed under one heading as another.
Source of power
When considering the legality of the actions of a public body considers first the source of its power.
Usually, this will be an enabling Ac, but may be an Order in Council issued under the Prerogative, or
Royal Charter. One would normally look to this source of power when trying to identify the limits of the
public body’s jurisdiction. As has been seen the obvious limits are the express wording of the enabling
Act (where this is the source of power) which will relate to what it is that the public body is empowered
to do. The enabling Act may also lay down the procedure to be followed by the body when exercising its
power. Where the decision-making body in question has, like the Panel Takeovers and Mergers, no
obvious means of legal support, there will be no statute, contract or legally binding constitution to refer
to in order to assess the scope of its powers. In such cases the courts appear, nevertheless, to be willing
to proceed on the basis that they will recognise an abuse of power when they see it as seen in R v Panel
on Takeovers and Mergers, ex parte Guinness plc [1989].
Types of power
Depending upon the degree of flexibility intended by the legislature, the powers of a public body may be
drawn in narrow or broad terms. The body may be given powers to decide a matter, but only after
taking certain matters into account. For example, under the Town and Country Planning Act 1990, local
planning authorities must have regard to matters such as the development plans for their areas before
exercising their discretion to grant planning permission. Failure to have regard to these matters could
invalidate a decision. Powers may be worded in such a way as to appear to leave all discretion in the
decision-making body, in the form of so-called subjectively worded powers. Typically, these appear in
the formulations indicating that the decision making body may ‘make such award as it thinks fit’ or may
‘impose such conditions upon the grant of a licence as it sees fit’. Prima facie it appears very difficult to
see how a court could intervene to control the exercise of such a power, as the only criterion set by the
legislature is that the minister should be satisfied that an award should be made. In Liversidge v
Anderson, a majority of the House of Lords held that, as the Defence Regulation under consideration
empowered the Home Secretary to detain a person if he had reasonable cause to believe him to be of
hostile origin or associations, the minister’s order detaining Liversidge could only be challenged on the
ground of bad faith. The majority were unwilling to inquire into whether the Home Secretary had
reasonable grounds for his belief. Even allowing for the fact that the decision was made during wartime,
and involved issues that might have had a bearing upon national security, it was unsatisfactory in terms

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of its constitutional implications, raising as it did the prospect of the minister only having to satisfy
himself that he had reasonable cause to believe that detention was necessary before authorising it.
This ‘hands-off ‘approach to the exercise of subjectively worded powers by ministers and other
administrative bodies no longer pertains. In IRC v Rossminster Ltd [1980] the House of Lords considered
the effect of a provision under which an officer was entitled to seize any material which he had
reasonable cause to believe might be required as evidence. The Inland Revenue accepted that the courts
could inquire into whether there were reasonable grounds for that belief. Lord Scarman stated that:
‘The ghost of Liversidge v Anderson …. casts no shadow …(and) I would think it need no longer haunt the
law…It is now beyond recall.’
Lord Wilberforce expressed the point somewhat more prosaically: ‘Parliament by using such phrases as
‘is satisfied’, ‘has reasonable cause to believe’ must be taken to accept the restraint which the courts in
many cases have held to be inherent in them.’
Context
Notwithstanding the more dynamic approach now adopted by the judiciary in reviewing the exercise of
even subjectively worded powers, one general consideration remains paramount and that is context.
The availability of judicial review lies at the discretion of the courts. The judiciary has at times shown
itself reluctant to question the validity of government policy, believing this to be a matter on which
ministers answer to Parliament under the doctrine of ministerial responsibility, or ultimately the
electorate at a general election. Further, the courts have, in the past, been slow to question ministers’
actions in respect of deportation, extradition or emergency powers matters, generally adopting the view
that the minister is in a better position to judge what is required in the national interest than the court.
The incorporation of the ECHR is likely to reduce the likelihood of such judicial reticence.
Unreasonableness and irrationality
The difficulty with unreasonableness is that it is such a subjective concept. Opinions can obviously vary
widely on whether a particular decision is reasonable or not. Judicial review is supposed to be
concerned with the legality of a decision not its merits. Thus, a public body can make a ‘bad’ decision
with which people may disagree, but that does not necessarily mean it is an ultra vires decision.
Determining the reasonableness of a decision, however, invariably involves questioning its merits, thus
when one introduces unreasonableness as a ground of review, one is immediately asking judges to make
valuable judgements about the quality of the decisions made by inferior bodies. At this point merits and
legality become intertwined. The incorporation of the ECHR by the enactment of the HRA 1998 will
inevitably increase the incidence of such problems. As will be seen the courts purport to apply an
objective test to determine reasonableness, but in the final analysis these judgments are made by men,
not machines, and so some personal element is inevitably introduced into what is supposed to be an
evaluation of legality.
The Wednesbury test
The modern basis for the test for reasonableness in English administrative law is derived from the Court
of Appeal’s decision in Associated Provincial Picture Houses Ltd v Wednesbury [1948]. The local
authority had the power to grant permission for the opening of cinemas, subject to such conditions as
they saw fit to impose. The plaintiff sought a declaration that a condition imposed on a grant of
permission to open one of their cinemas, namely that no child under 15 was to be allowed in without an
adult, was ultra vires. Lord Greene MR outlined the principles upon which the authority’s decision might
be open to attach. These were, not directing itself properly in law; not taking into account relevant
considerations, or conversely taking into account irrelevant considerations; acting unreasonably, acting
in bad faith; or acting in disregard of public policy. As regards the condition imposed by the defendant

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authority, Lord Greene thought it was important to bear in mind that Parliament had entrusted the local
authority with the discretion to impose conditions because of its knowledge of the area’s needs, and
(impliedly) because having been elected it reflected the views of the area’s inhabitants. He felt that
courts should therefore be slow to intervene to quash a condition imposed by such a body, but should
do so where a condition was seen to be unreasonable. This meant that the condition would have to be
one that was so unreasonable, no reasonable authority would have imposed it, and to prove a case of
that kind would require compelling evidence. He explained the concept in these terms:
‘…..discretion must be exercised reasonably. Now what does that mean? …It appears to me quite clear
that the matter dealt with by this condition was a matter which a reasonable authority would be justified
in considering when they were making up their mind what condition should be attached to the grant of
this licence. Nobody, at this time of day, could say that the well-being and the physical and moral health
of children is not a matter which a local authority, in exercising their powers, can properly have in mind
when that questions are germane to what they have to consider… It is clear that the local authority are
entrusted by Parliament with the decision on a matter which the knowledge and experience of that
authority can best be trusted to deal with. The subject matter with which the condition deals is one
relevant for its consideration. They have considered it and come to a decision upon it. 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…It is not what the court considers unreasonable, a different thing altogether. If it is what
the court considers unreasonable, the court may very well have different views to that of a local
authority on matters of high public policy of this kind. Some courts might think that no children ought to
be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no
doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation
is not to set up the court as an arbiter of the correctness of one view over another. It is the local
authority that are set in that position and, provided they act, as they have acted, within the four corners
of their jurisdiction, this court, in my opinion, cannot interfere.’
Identifying unreasonableness
To be ‘unreasonable’ an act must be of such a nature that no reasonable person could possibly entertain
such a thing. This is a stringent test that leaves the ultimate discretion with the judiciary. They decide
what they believe a reasonable man might think. As Lord Hailsham observed in R W (An Infant) [1971],
in the course of illustrating the difficulty of sustaining an allegation that action is unreasonable, two
reasonable persons can come to opposite conclusion on the same set of facts without forfeiting their
title to be regarded as reasonable. Caution should therefore be exercised before attaching the adjective
‘unreasonable’ to executive action. As Lord Ackner stated in referring to Wednesbury unreasonableness
in R v Secretary of State for the Home Department, ex parte Brind [1991]: ‘This standard of
unreasonableness…has been criticised as being too high. But it has to be expressed in terms that confine
the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction.
Where Parliament has given to a minister or other person or body a discretion, the court’s jurisdiction is
limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that
discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful
usurpation of power by the judiciary to substitute its, the judicial, view on the merits and on that basis to
quash the decision. If no reasonable minister properly directing himself would have reached the
impugned decision, the minister had exceeded his powers and thus acted unlawfully and the court in the
exercise of its supervisory role will quash that decision. Such a decision is correctly, though
unattractively, described as a ‘perverse’ decision. To seek the court’s intervention on the basis that the
correct or objectively reasonable decision is other than the decision which the minister has made is to
invite the court to adjudicate as if Parliament had provided a right of appeal against the decision that is,
to invite an abuse of power by the judiciary.’

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The task of determining whether the Secretary of State or the local education authority was proposing
to act unreasonably fell to the House of Lords in Secretary of State for Education and Science v
Tameside Metropolitan Borough Council. In 1974 the Labour Party controlled the local education
authority and decided to convert the state schools to the ‘comprehensive’ system of education. After
the local elections in May 1976 the Conservative Party won control of the education authority and
decided to retain the grammar/secondary school system. Section 68 of the Education Act 1944 gave the
Secretary State had the power to issues directions to a local education authority:‘….if…..satisfied…..that
any local education authority….have acted or are proposing to act unreasonably with respect to the
exercise of any power conferred or the performance of any duty imposed by or under this Act.’

The Secretary of State directed the newly elected Conservative authority to retain the ‘comprehensive’
system. ‘The authority refused and the Secretary of State sought an order of mandamus to compel
compliance, on the basis that, in her view, it would not be possible for the authority to revert back to a
selective system of schooling before the commencement of the new academic year without ensuing
chaos. When the case was before the Court of Appeal Lord Denning observed (echoing the comment of
Lord Hailsham, above) that: ‘…..two reasonable persons can reasonably come to opposite conclusions…
No one can properly be labelled as being unreasonableness unless he is not only wrong but unreasonably
wrong, so wrong that no reasonable person could sensibly take that view….’
His Lordship held that the Secretary of State must have misdirected herself on the interpretation of
‘unreasonableness’, as there was no evidence on which the Secretary of State could declare herself
satisfied that the council was proposing to act unreasonably, ie he was satisfied that the authority could
manage the change in the time available. The House of Lords upheld the Court of Appeal’s decision.
Although the case appears to involve a choice between competing concepts of reasonableness, it is
submitted that it could be seen as a case where the Secretary had no jurisdiction to make an order
under s68 as the evidence that had to exist as a precondition for the exercise of that power was not
before the court.
Generally, the current trend would appear to be for the courts not to intervene in relation to decisions
of local authorities on matters of social policy that are within their control. As Lord Brightman
commented in R v Hillingdon London Borough Council, ex parte Pulhofer [1986] AC 484:
‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body
and that fact involves a broad spectrum ranging from the obvious to the debatable to the just
conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom
Parliament has entrusted the decision-making power save in a case where it is obvious that the public
body, consciously or unconsciously, are acting perversely.’
This passage was cited with approval by Ralph Gibson LJ in West Gamorgan County Council v Rafferty.
Proving unreasonableness
Any applicant for judicial review seeking to establish unreasonableness on the part of a public body
bears a heavy evidential burden. As Lord Greene observed in Wednesbury ‘…..to prove a case of that
kind would require something overwhelming, and, in this case, the facts do not come anywhere near
anything of that kind.’ A number of more recent cases illustrate the point. First, in R v Great Yarmouth
Borough Council, ex parte Sawyer (1987), the applicant, chairman of the local Taxi Proprietors’
Association, sought judicial review of the respondent’s decision to increase the number of hackney
carriage licences granted. The Court of Appeal held, dismissing the application, that there was a very
heavy burden indeed resting upon any applicant wishing to show that a public body, in the exercise of its

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discretion, had acted unreasonably. Woolf LJ explained that it could not be said in this case that the
decision of the local authority, to allow market forces to determine the granting of licences, was
perverse in the sense that no reasonable authority would have come to it. It was not for the courts to
usurp the function of the authority simply because it disapproved of the decision. It could only intervene
if it could be shown that the authority had arrived at its decision unlawfully. It is significant to note the
importance attached by the courts to the purpose behind the relevant legislation. For a similar
approach, albeit in a somewhat different context (decision not to re-let council properties to families on
the council’s waiting list).
Second, in Re Walker’s Application (1987), the applicant for review was a mother whose child urgently
needed a heart operation. The health authorities in Birmingham had already postponed the operation
five times due to a shortage of trained nursing staff. The basis of the application was the alleged failure
of the authority to provide an adequate service. The Court of Appeal held, in rejecting the application,
that whilst the health authorities were clearly public bodies amenable to review, the rationing of
resources was a matter for them and not the courts. Only if it could be shown that the allocation of
funds by the authority was unreasonable in the Wednesbury sense, or if there were breaches of public
law duties, would the courts be prepared to intervene. The decision perhaps begs the question as to
how bad the provision of a public service has to become before the courts would be willing to label an
allocation of resources as perverse as seen further in cases such as R v Camden London Borough
Council, ex parte Gillan (1988), and R v Cambridge District Health Authority, ex parte B [1995].
There will, nevertheless, be those rare cases where the unreasonableness is so manifest that the courts
will not hesitate to intervene. An example was provided by Warrington LJ Short v Poole Corporation,
where he adverted to a school dismissing a teacher because she had red hair. Such Williams v Giddy ,
the Public Service Board of New South Wales awarded a retiring civil servant a gratuity of one penny per
year of service. Not only was the award unreasonable but, the Privy Council noted, it was tantamount to
a refusal to exercise discretion. In Backhouse v Lambether London Borough Council, where a local
authority increased the rent payable on a council property to 18,000 pounds per week (this was part of a
campaign against the Conservative government’s ‘Fair Rents’ legislation), the court declared the action
to be manifestly unreasonable – clearly it was a rent increase no reasonable authority would have
sanctioned. Finally, in R v Secretary of State for the Home Department, ex parte Cox, the applicant,
who had been convicted of murder in 1971 and released on licence in 1983, was charged during 1989
with making threats to kill a neighbour, and his licence was revoked although the charges were
eventually dismissed. It was decided to release the applicant on licence again on 21 September 1990,
but on 15 September he was arrested driving a car with an invalid tax disc and found to be in possession
of a small quantity of cannabis. The Secretary of State cancelled the decision to release the applicant on
the ground that he presented a risk of danger to the public. The Divisional Court quashed the Secretary
of State’s decision on the ground that it was unreasonable in the Wednesbury sense, bordering on the
perverse.
The Status of the Wednesbury test today
The decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation is still good law, but
it is significant that Lord Diplock, in the course of his speech in GCHQ, preferred to use the term
‘irrationality’ to describe what had hitherto traditionally been regarded as Wednesbury
unreasonableness. He stated:
‘By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’…
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have arrived at it.
Whether a decision falls within this category is a question that judges by their training and experience

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should be well equipped to answer, or else there would be something badly wrong without judicial
system….’Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may
be attacked by judicial review.’
It was held, in R v Secretary of State for the Home Department, ex parte Handscomb that it would be
irrational for a minister never to refer cases to the trial judges for their comments until prisoners
sentenced by them had served three years of their sentences, Watkins LJ observing that no satisfactory
explanation was given by the minister for this delay. The court regarded the minister’s decision to act
upon his own views in preference to those of a trial judge as ‘clearly irrational’. If the minister was not to
accept the trial judge’s view of the case, whose was he to follow?
Similarly, in R v Secretary of State for the Home Department, ex parte Norney and Other and Others,
the court ruled that the Home Secretary’s policy of not referring the cases of prisoners serving life
sentences for terrorist offences (for whom 20 years had been fixed as the tariff period element of such
sentences, to reflect the degree of retribution and deterrence involved) for consideration by the Parole
Board until after the expiry of the tariff period, was unreasonable in the Wednesbury sense because it
effectively increased the tariff period by the average length of time taken by the Parole Board to
consider a case following referral (23 weeks). Further, as regards, prisoners who no longer posed a
threat to society, the court felt that the policy was in breach of the common law and the ECHR.
Cases such as R v Secretary of State for the Environment, ex parte hammersmith and Fulham London
Borough Council [1991] and R v Secretary of State for the Environment, ex parte Nottinghamshire
County Council [1986] suggest that the courts are less likely to apply the standard Wednesbury test to
an exercise of ministerial discretion that has been expressly approved by the House of Commons, in the
sense that such action will only be declared ultra vires if it is manifestly absurd, motivated by bad faith
or based on other improper motives. It is submitted, however, that there is little or no constitutional
basis for such judicial reticence. A vote in the House of Commons as such has no legal significance in
terms of validating administrative action, or making it proof against judicial review. Perhaps a better
explanation for the courts’ adoption of what might be described as a ‘super Wednesbury’ test in such
cases is that they involve questions of national policy best determined by politicians in the appropriate
political forum. For the courts to declare such policy decisions to be unreasonable in the Wednesbury
sense might raise the possibility of the judges being dragged into what are essentially party political
debates.