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Judicial Review Essay Practice

Q1

Discuss whether the arguments in favor of proportionality outweigh the arguments

against Wednesbury unreasonableness.

Answer:

The concept of Wednesbury unreasonableness also known as irrationality, has received

both significant support and criticism over the years. Used to refer to decisions which may
be seen as ‘absurd,’ those who criticize it postulate that a better alternative
would be proportionality. Proportionality has been theorized as improving the
intelligibility of decisions by considering the balance struck by the decision-maker and
weights attached to interests and parties. Despite these benefits, however, there is still
some question as to whether they overshadow the perceived limitations of
Wednesbury such as its high threshold, sliding scale and its overall
impreciseness, lack of clarity and the resulting constitutional concerns. The following
essay, therefore, will attempt to outline the benefits and limitations of each principle in an
effort to ascertain which presents a more convincing argument the pull factors of
proportionality or the push factors of Wednesbury.

The concept of Wednesbury was first developed by Lord Greene in the case of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation. In the case the claimant, a
cinema sought judicial review of a decision not to allow children under 15 to attend
cinemas on Sunday but was unsuccessful. In its judgment the court cited that had the
decision made been so unreasonable that no reasonable authority would have imposed it
they would have intervened, hence giving birth to the concept of Wednesbury
unreasonableness.

The concept was further clarified by Lord Diplock in the case of GCHQ who described it as
“irrationality.” He contended that it applies to a decision that is so outrageous in its
defiance of logic or moral standards that no sensible person who applied their mind to the
question could have arrived at that conclusion. Since then, several approaches to
Wednesbury have developed, these being “super- Wednesbury” also known as “light-touch
review” which is typically used in matters of economic policy or national security (R. v
Secretary of State for the Environment, ex parte Nottinghamshire County Council). Given
the sensitive nature of these matters and the constitutional principles of parliamentary
sovereignty and the separation of powers the courts have been reluctant to intervene.
Therefore, an even more stringent standard is applied making it even harder for the
claimant to succeed. Alternatively, in especially sensitive subjects, the court may hold the
matter un-justiciable.

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Another approach to Wednesbury is the Standard Wednesbury which simply refers to the
traditional notion of Wednesbury as articulated by Lord Diplock above. This too has a high
threshold, but it is still lower than that of the Super Wednesbury. Lastly, there is “Anxious
Scrutiny” sometimes called the Sub-Wednesbury test which is a less stringent approach
used in cases where fundamental human rights are as issue. It requires that the grounds
for judicial review be adapted so as to apply in an especially rigorous way and that the onus
be placed on the respondent to show the legal propriety of the action in question. For
example, in R. v Ministry of Defence, ex parte Smith [1995] 4 All E.R. 427, it was said that
"when the most fundamental rights are threatened, the Court will, not, for example, be
inclined to overlook some perhaps minor flaw in the decision-making process or adopt a
particularly benevolent view of the Minister's evidence, or exercise its discretion to
withhold relief."

Not surprisingly, there are a number of criticisms of Wednesbury, the first of which Centre’s
around the fact that the concept is imprecise, demonstrated by its sliding scale of
approaches. The principle does not provide a consistent approach to judging the exercise
of discretionary power. In Berbie 2000, Laws LJ redefined it as a “sliding scale of review
more or less intrusive according to the nature and gravity of what is stake.” However, Lord
Carnwarth noted that “sliding scales only work if one has measurable standards to which
they can be applied; otherwise, is a matter less of sliding scales than of “slithering about in
grey areas.” He asks the question as to how is the “nature and gravity” of what is at stake to
be judged, comparing the reasons for the outcomes of Nottinghamshire and Puhlhover to
Tameside asking how did they fundamentally differ.

Another critique lies in its supposed inadequacy as a judicial tool. Jeffery Jowell and
Anthony Lester (1987), two of the more popular critics of Wednesbury contend that a
decision being unreasonable is insufficient justification for judicial intervention. They also
argue that a ground for review should elucidate on why the decision is unreasonable which
would ensure greater transparency and minimize fears of prejudice. This is supported by
Lord Carnwarth (2013) who critiques the concept of “irrationality” and “outrage” pointing
out that they are not an acceptable part of the “judicial armoury.” He also notes that some
actions may be morally objectionable but that may not mean that they are “irrational” or
even “outrageous.”

There has also been criticism regarding the lack of clarity in the use of the term “anxious
scrutiny.” Lord Carnwarth notes that despite its use in cases on the right to life such
Bugdaycay and other human rights cases such as R (Hillingdon LBC) v Lord Chancellor in
which Dyson LJ said noted that the court must “consider the issue of irrationality with
anxious scrutiny” there is not a clear understanding of what the term means.

Another critique of Wednesbury is that it is unrealistic and “regressive.” Jowell and Lester
argue that the use of Wednesbury avoids reviews of decisions except for those in which the

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official has behaved absurdly or has “taken a leave of his senses.” They contend that should
the courts only interfere with decisions that are verging on insane it would create a barrier
of immunity around oppressive or improper decisions which may be explained in rational
language but should be reviewed This opinion is supported by Lord Cooke of Thorndon in
R v Secretary of State for the Home Department ex parte Daly who describes Wednesbury
as “retrogressive” since that there are various degrees of unreasonableness but only an
extreme degree can bring an administrative decision within the legitimate scope of judicial
invalidation. He posits that it may be, that the law may never be satisfied in any
administrative field by finding a decision under a review that is not absurd.

They also go on to argue that the Wednesbury test is tautologous arguing that it in using
the approach, courts label a decision as unreasonable but then define unreasonable as a
decision which no reasonable authority would take. They explain that a test which requires
the official action not to be ordinarily reasonable, but only, extremely unreasonable, is
unhelpful as a practical guide.

Despite the issues with Wednesbury, proportionality has not readily been accepted as a
ground for judicial review. In Brind 1991, the House of Lords refused to recognize
proportionality as a distinct ground of review. In Nalgo 1992 Neill LJ the court stated that it
was not open to a court below the House of Lords to depart from the traditional grounds
of Wednesbury when reviewing a decision made by a Minister. However, since then, Le
Seur, Sunkin and Murkens note that after the Human Rights Act 1998 came into force,
many cases have not been examined using Wednesbury unreasonableness but instead the
proportionality test required by the European Court of Human Rights (ECHR). The test for
proportionality as articulated by Lord Steyn in Daly (2001) is whether the legislative
objective is sufficiently important to justify limiting a fundamental right; the measures
designed to meet the legislative objective are rationally connected to it and the means used
to impair the right or freedom are no more than is necessary to accomplish the objective.

Over the years, however, the calls for proportionality to replace Wednesbury as a ground of
judicial review have increased. In Daly (2001), Lord Steyn in defence of the use of
proportionality argued that proportionality requires the court to assess the balance which
the decision-maker has struck. It also goes further than the traditional grounds of review as
it requires attention to be directed to the relative weight accorded to interests and
consideration and thirdly even the heightened test developed in R v Ministry of Defence ex
parte Smith may not be appropriate to the protection of human rights. Additionally, Jowell
et al argue that proportionality should be adopted as it would help to make decisions more
intelligible which would ultimately better enable the public to understand and predict the
decisions of the court.

Despite the advantages of proportionality, there are also criticisms of the approach such
as fears that it may encourage inappropriate judicial activism as it may allow courts to

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overstep their constitutional role to actually make decisions (Daly, 2012). Further, Taggart
argued that without “rights’ as a starting point, proportionality methodology loses much of
its advantages as a transparent and visible tool for ensuring reasonable or proportionate
decision making.

To counter the short-coming of proportionality, it has been suggested that that rather than
replacing Wednesbury with proportionality, the two should be synthesized. Professor Craig
was noted as saying that there are conceptual similarities between Wednesbury and
proportionality since they both require judicial consideration of the “weight” and “balance”
of the decision. This is an approach that has seemed to find favor with the courts as a
number of judgments have indicated a move in this direction such as Kennedy (2014) in
which Lord Mance posited that there seems to be no reason why proportionality or
something similar should not be relevant in judicial review beyond the scope of the
Convention and EU Law.

Nevertheless, there is another school of thought which disputes the idea of unification and
instead propose bifurcation. Varuhas (2015) argues that proportionality and Wednesbury
are concerned with two separate aspects of law- one public and one private, thereby
making them incompatible for unification. He further argues that proportionality is not a
ground for review- it is a defence in an action for breach of an individual or fundamental
right.

That said, neither arguments against Wednesbury nor the arguments in favour
proportionality outweigh each other. Although Wednesbury has several limitations such
high levels of stringency, impreciseness and overall lack of clarity and proportionality
boasts of being more structured and allowing greater transparency, there is a clear
reluctance to abandon Wednesbury and fully adopt proportionality. Instead, there are
growing calls for either unification of the two or bifurcation suggesting that despite the
shortcomings of Wednesbury and the benefits of proportionality there is still a place for
both approaches in the realm of public law.

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Q2

This essay requires that there can ultimately be no clear contrast between
reasonableness and proportionality.

Judicial Review refers to the process by which the decisions and actions of public bodies are
subject to the oversight of the courts to ensure that they have been exercised in
accordance with the law. Judicial review is the high courts power to police the legality of
decision made by public bodies. The Queen’s Bench Division of the High Court, which is
responsible for exercising a supervisory jurisdiction over governmental and public bodies.
The HRA 1998 was introduced by the Blair Government as a part of their long-term
Constitutional reforms. The Act came into effect from 2nd October 2000. It is one of the
most cardinal statues not only does it provide a fundamental protection to the human
rights of all UK citizens, it also had an immense impact on the way UK courts check the
actions of governmental bodies.

Grounds of JR in the case of CCSU v Minister of SCS (GCHQ) Lord Diplock offered a
threefold classification of the grounds for JR; i) illegality, ii) irrationality and iii) procedural
impropriety.

Therefore, relationship between illegality and irrationality are often referred to jointly
under the heading of “Unreasonableness” or “Wednesbury unreasonableness” from the
case with the same name. The first difficulty in comparing and contrasting ground of JR is
that they are not necessarily distinct and can overlap. Furthermore, the judges have
stressed that Lord Scarman’s categories were not exhausted and might be added to in
time. If the categories themselves are not clear, it is hard to see how there can be neat
contrasts between them.

Irrationality or unreasonableness can be used to challenge the exercise of discretion or

findings of law and fact. Although the question of what is reasonable must, as always, be
decided in the context of the partial or statutory power, this ground of review operates as
an external control, in that it draws on values not directly derived from the statute.

Indeed, the notion of unreasonableness is so vague that it seems to invite the court to
impose its own opinion of the merits in place of that of the decision-maker. Against this,
the separation of powers, coupled with practical considerations suggests that the courts
should be cautious in interfering with the decisions of the executive on vague grounds such
as unreasonableness. The former Lord Chancellor, Lord Irvine suggested three broad
reasons lay behind this, firstly, respect for Parliament, which conferred decision making
power on the body in question; Secondly, limited judicial expertise in matters of policy
concerning the general public interest; thirdly, what he called the democratic imperative,
namely that government is judged by the electorate seem misplaced, since the lectorate
can not vote in respect of individual decisions. The courts have struggled to give the notion

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of unreasonableness a limited meaning. The starting point and baseline are usually called
“Wednesbury unreasonableness”. In Associated Provincial Picture House Ltd v Wednesbury
Corp said that the court will interfere only where a decision is so “unreasonable that no
reasonable authority could have made it”. In that case the court upheld a condition that no
child should attend a cinema in the town on a Sunday. In R v Ministry of Defence ex Parte
Smith stated that the decision must be “beyond the range of responses open to a
reasonable decision maker. In the case Short v Poole dismissing a school teacher because.
She had red hair; it would be unlawful if an authority reaches a decision that is
unreasonable that no reasonable authority could even have come to it.

However, the HRA and in EU law, a more stringent standard of review than Wednesbury
unreasonableness applies, in the form of the doctrine of proportionality. The courts use
this approach to administrative for decision making. The doctrine of proportionality
provides that a public action will be unlawful if it is disproportionate in its effect or relative
to what is required Ex Parte Hook. This was held to be an unreasonably severe penalty (Ex
Parte Daly). For instance, in Benham v UK, he was jailed for 30 days for not paying a poll
tax. The Strasburg court found the severity of the punishment disproportionate with the
“offence and concluded that the government was in breach of Article 6 of the European
Convention on Human Rights.

Before the HRA, English judges need objected to proportionality on the ground that it to
takes the court too far into the political merits (Hone v Maze Prison Board of Visiters). So,
by means of a contrast in (Brind) it is worth stressing that proportionality as a ground of JR
has been developed under the HRA 1998. Administrative action should be compatible with
the HR provision of the HRA 1998.

Does this suggest that proportionality is separate from irrationality? To return to the point
made above given the fluidity of the concepts in JR, it might to suggest that there is, in the
end, a hand and fast difference between proportionality and unreasonableness. One could
easily argue that an administrative decision could be reviewed either because it placed
unreasonable restriction on a human right, or, that were out of proportion to the end it
intended to achieve. It might be possible to distinguish and hence contrast the two grounds
to JR, if a human right was not at stake, but this does not mean that the concepts of
unreasonableness and proportionality are so conceptually distinct as to be open to
contract. For instance, in Alconbury Development Ltd and Other Lord Slynn expressed the
opinion that proportionality should be seen as part of the heading of Irrationality.

However, Once the HRA came into effect, the Act itself made a path for the doctrine to step
in according to S2 of the 1998 Act. The domestic courts must take into account the decision
that concerns convention rights. The domestic courts follow the reasoning of the ECtHR,
including the notion of proportionality. As such, in Ex Parte Daly Lord Steyn considered all
three of the available tests for reviewing a prison, namely, the traditional Wednesbury text,

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the so called “super-Wednesbury test” formulated, in Ex Parte Smith by domestic court and
lastly the principle of proportionality.

This essay has argued that whilst the origins of the two grounds for JR are distinct, there
are insufficient conceptual difference between proportionality and unreasonableness to
justify any clear contrast.

Q3

Discuss whether the United Kingdom now requires a written constitution

“As every schoolchild is supposed to know, the United Kingdom does not have a written
constitution” (Brazier,2001). An uncodified constitution is peculiar in the sense that though
much rights and responsibilities are not entrenched into a single document, the
acceptance and workings of such a constitution has proven efficient. This is evident in the
UK system as a whole, especially with regards the workings of the executives. Both benefits
and drawbacks are manifold and varied but what is significant is that there is no need for a
written constitution since the benefits of an uncodified one outweighs its pitfalls.
Nevertheless, an unwritten system could only work if the three arms of government
namely the executive, legislature and judiciary work hand in hand in upholding the
importance of the multifarious doctrines within the workings of the British constitution,
such as constitutional conventions, rule of law, separation of powers, parliamentary
sovereignty and judicial review. The two sources of the UK constitution are the legal and
non-legal sources which should both complement one another for an uncodified
constitution to benefit the workings of UK government. Furthermore, with the advent of
Human Rights Act 1998, rights and liberties of the UK population is largely protected and
the Act has very much achieved and is still working to achieve the purposes for which it was
designed.

The present ‘unwritten constitution’ is an anachronism riddled with reference to our

ancient past, unsuited to the social and political democracy of the 21st century and future
aspirations of its people. It fails to give primacy to the sovereignty of the people and
discourages popular participation in the political process. A written constitution would
circumscribe the boundaries of the British state and its relationship with Europe and the
world. It would become a symbol and expression of national identity today and a source of
national pride. The so-called ‘unwritten constitution’ exists only in the abstract. Matters of
such fundamental importance should be codified into a single documentary for all to see.
As for today’s society, the constitution should be accessible and intelligible to all, not just
the politicians who are running the country. Besides that, constitutional history is no longer

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taught in any depth in schools today. This means that the population is generally less
aware of the landmarks and origins of customary government underpinning the unwritten
conventions of the political system, making it all the more important that the constitution is
written down in a single document.

In addition, a written constitution would make the different regions of the country more
fully integrated within the United Kingdom as it would provide rationalization and
coherence, setting down the underlying principles and processes governing the different
parts of the Union. The public trust in ministers, parliamentarians and civil servants has
been in a state of decline in recent times thus to help buttress public confidence in the
political system, a clear structure of controls and safeguards needs to be codified into a
written constitution that ensures integrity. Any historic institutions and ceremonies of past
centuries that remain valuable for today, including the monarchy can simply be codified
into a written constitution but with clarity over their modern roles, duties and functions. A
written constitution would definitely become the most prominent national document in the
country and have a beneficial educative effect in society. Due to the lack of clarity around
the working of certain areas of government in the UK’s present unwritten constitution, a
written constitution would address these concerns, codifying the prerogative powers and
making them subject to parliamentary or other controls. Another benefit of a written
constitution would be a confident expression of the United Kingdom’s national identity,
both at home and internationally.

On the other hand, the codifying of the UK’s constitution has more drawbacks as compared
to their benefits thus increasing the benefits of an uncodified constitution. It is therefore
unnecessary, undesirable and un-British to have a written constitution. The unwritten
nature of the constitution is something distinctively British, it reminds us of great history
and is a source of national pride. As for a written constitution, it would create more
litigation in the courts and politicize the judiciary, requiring them to pass judgment on the
constitutionality of government legislation. It is impossible to codify the constitution
without changing it, and change is not wanted. There is saying which relates to this matter
which is ‘if it isn’t broke, don’t fix it. Written constitutions around the world have almost
always been initiated as a result of either a revolution or other domestic catastrophe and
none of these circumstances exist in the United Kingdom today. At the same time, it would
be more rigid and difficult to change with a danger that it might fossilize and become out of
date if it was to be codified. An unwritten constitution also gives judges rather elected
politicians the final says on what is and what is not law. Besides that, a written constitution
would detract from the Crown serving as the United Kingdom’s symbol of state and
thereby diminish the significance of the Monarchy. Each individual’s issue would be
addressed if it is not codified. If advocates of a written constitution seek to argue that
stronger judicial controls over government are needed, it is a fallacy that insufficient
judicial controls do not already exist.

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Next, a written constitution would curb the ability of elected representatives and their
officials to act quickly and flexibly to meet citizens’ needs. Other than that, written
constitution would add no benefit, and if anything, detract from the widely recognized
underlying principles of the unwritten constitution. The essence of the British constitution
has been not separation of powers but a mixing and sharing of powers that has served the
country well so trying to impose separation of powers onto the British system of
government would be affront to the British constitutional tradition. Any person or lobby
groups who support a written constitution is because they regard it as a device for
implementing a wide-ranging package of reforms. There is in reality no popular demand
for a written constitution and the preparation of a written constitution would involve a
huge and disproportionate amount of time and effort in preparing the proposal and its
various options, in carrying out consultation exercises, in holding debates in Parliament
and in arranging a referendum. If enacted, a written constitution containing any
substantive reforms would cause disruption to the normal workings of government and a
series of direct and consequential changes in the revised procedures across all branches of
state. To initiate this nature of constitution would be to invite division and controversy at a
time when the government should be seeking national unity. It would stir up conflicting
emotions and prejudices about the future Monarchy, the European Union, the House of
Lords, the voting system and human rights.

In conclusion, the United Kingdom does not require a written constitution. The flexibility of
the unwritten constitution of the United Kingdom should not be replaced by the openness
and certainty of a written constitution. With the advent of significant constitutional changes
through the Human Rights Act 1998, the Constitutional Reform Act 2005, the Constitutional
Reform and Governance Act 2010 and the Fixed-Parliament Act 2011, it seems even more
redundant to waste UK’s resources into coming up with a written constitution.

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