Scope Of The Wednesbury Principle

Prima facie, it may seem irrelevant to ask the obvious question: Could it have possibly been the
intention of the Parliament that any body should behave unreasonably? The answer is, of course, no,
and it is this understanding that provides the basis for jurisdiction.
Critical to the evaluation of the Wednesbury principle is an appraisal of where it can be located
within the scheme of administrative law, and its articulation in a different category of challenge to
administrative action.
The purpose of the introduction is twofold: If we concede that the Wednesbury principle is a tool for
challenging administrative action,
Where is the principle located within the scheme of administrative law?
Why is there a necessity to study unreasonableness under a different category, is this not covered by
the ultra vires doctrine?
The way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is
understood with respect to grounds of judicial review of administrative action. In relation to this, as
the ultra vires principle already exists, a question that is often asked is the reason for the necessity of
a discrete principle relating to unreasonableness.

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Grounds of review and the location of the Wednesbury principle
Special reference may be made to the GCHQ case", wherein it was stated that grounds of judicial
review may be subsumed under three main heads, which are:
Illegality
Irrationality
Procedural impropriety
It is in the second aforementioned category that the Wednesbury principle finds relevance, and Lord
Diplock has elucidated the concept, by stating that irrationality" is applicable in a decision which is
so outrageous in its defiance of either logic, or morals, that no sensible person could have arrived at
that conclusion on proper application of his mind. He also adds that whether or not a decision falls
within the ambit of this category is subjective, and depends on the interpretation of the judge. [4]
The doctrine of ultra vires and the need for a separate ground of unreasonableness"
In understanding the need for a separate ground of unreasonableness", the import of
the ultra vires doctrine is deserving of mention. The ultra vires doctrine refers to an action which is in
excess of the powers of decision making bodies, and the reasoning or implications of this principle

are important insofar as they uphold the sovereignty of parliament, and the rule of law (such
importance is to be illustrated in comparison with the Wednesbury principle).
Very often, there are cases wherein there is more than one ground of challenge, and this is because
the facts of any case are likely to introduce several levels of complexity. It has been observed that
numerous decisions have unreasonableness as a common factor. However, the use of the term
unreasonableness" is not specific enough. Questions related to this are: What do the judges mean
when they use the term unreasonableness"? Does it refer to outrageous behaviour, or a duty of the
public body to act reasonably? What the researchers seek to do in this project is to answer these
questions, by way of analysis of the Wednesbury case, and the principle that evolved thus. [5]

A, Cases Preceding The Wednesbury Principle

In understanding the true import of the Wednesbury case and the principle it laid down, it is necessary
to refer to the cases preceding the Wednesbury principle, and this can be broadly divided into three
parts:
Early decisions on the unreasonableness principle
Developments in the principle of unreasonableness in the 20th century
The cases referred to in the Wednesbury judgment
I. Early decisions on the unreasonableness principle
The principle of unreasonableness does not flow out of the Wednesbury doctrine alone, and it has
been widely recognized that unreasonableness has been established as one of the many traditional
grounds of review, in administrative law, which pre dates Wednesbury by many years. [6]
In this respect, reference in made to Sir Edward Coke CJs dicta in Rookes Case [7] , which contains
a statement which has not lost its accuracy over four hundred years, and this principle remains the
same to this day. [8]

The Case Of Associated Provincial Picture Houses Ltd.

V. Wednesbury Corp. [18]
Introduction and synopsis of the case
In modern days authorities both statutory and governmental - enjoy a wide range of discretionary
powers. This power is however, fettered by restraints. It is to be exercised in public interest and for
the public good. The wide range of authorities and officers conferred with discretion adds to the
intensity of the problem in as much as quite frequently discretionary powers are wrongly exercised or
otherwise abused. In early times, the courts have been overseeing the exercise of discretionary
powers by way of judicial review. New developments in administration made the Courts to adopt new

techniques to discipline the exercise of administrative discretion but the judiciary was very cautious
in exercising its power of judicial review.
It was in Wednesbury Corporation case that the Court of Appeal in England ruled that the courts
could only interfere in an act of executive authority if it be shown that the authority had contravened
the law and that the power of the courts to interfere in such matters is limited, except where the
discretion has not been exercised within the four corners of well-known legal principles. This
observation signified the approach the judiciary adopted.
In Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., Lord Greene, M.R. in a classic
and oft-quoted passage held that when a statute gave discretion to an administrator to take a decision,
the scope of judicial review would remain limited. He said that interference was not permissible
unless one or the other following conditions were satisfied viz. the order was contrary to law, or
irrelevant factors were considered, or relevant factors were not considered or the decision was one
that no reasonable person could have taken.
Facts of the Case
The facts of Wednesbury are critical to a discourse on the subject. The plaintiff company, the owners
and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by the defendants
who were the licensing authority for that borough under the Cinematograph Act, 1909, a licence to
give performances on Sunday under S.1 (1) of the Sunday Entertainments Act, 1932; but the licence
was granted subject to a condition that "no children under the age of fifteen years shall be admitted to
any entertainment whether accompanied by an adult or not." In these circumstances the plaintiffs
brought an action for a declaration that the condition as ultra vires and unreasonable.
To elucidate:

The Plaintiffs And The Defendants

The plaintiffs were the owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire. The
defendants were the licensing authority for that area, the Wednesbury Corporation.

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The Discretion Granted To The Wednesbury

Corporation
1. Legislations relevant - Reference may be made to two important legislations in this respect:
The Cinematograph Act The Wednesbury Corporation had the power under this Act to grant
licences in any area for cinematograph performances.
The Sunday Entertainments Act Section1, sub section 1 of this Act provided that if an authority had,
under the Cinematograph Act, the power to grant licences in any area for cinematography

performances, then such authority had the power to allow a licensed place to be open and used on
Sundays, subject to such conditions as the authority thinks fit to impose".
The Wednesbury corporation, in this case, was an authority which had:
The power to grant licences in any area for cinematograph performances under the Cinematograph
Act, 1909, and
The power to allow a licensed place to be open and used on Sundays, subject to such conditions as
the authority think fit to impose."
As there was no debate about the Wednesbury Corporation being an authority contemplated under the
Cinematograph Act, there was no debate about it being an authority under the Sunday Entertainments
Act.

The Discretion Exercised By The Wednesbury

Corporation
The Wednesbury Corporation granted the license to the plaintiffs on the condition that no children
under 15 years, whether accompanied by an adult or not, should be admitted to Sunday performances

The Issue Brought Forth

The claim of the plaintiffs was that the condition was ultra vires and unreasonable.
Judgment and rationale
The Court held that in considering whether an authority having so unlimited power has acted
unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing
if it has taken into account any matters that ought not to be or disregarded matters that ought to be
taken into account. The Court cannot interfere as an appellate authority overriding the decisions of
such authority but only as a judicial authority concerned to see whether it has contravened the law by
acting in excess of its power. Lord Greene, who rendered the leading judgment, dealt with the law in
detail and enunciated principles of reasonableness", and as an aside, Indian Courts have followed
these Wednesbury principles of reasonableness in various decisions. Lord
Greene M.R. also went on to explain the word unreasonableness and held that when an executive
discretion is entrusted by a Parliament to a body, such as the local authority, the discretion exercised
by the authority can only be challenged in the Courts in a strictly limited class of cases. He also
described the various grounds of challenge which went into the legality of public bodys actions.
Unreasonableness was used to describe actions based on illegality, irrelevancy and the like. This

Wednesbury test has been the major tool used by the Courts to control discretionary decisions. To
quote the learned judge on the crux of the judgment;
What, then, is the power of the courts? They can only interfere with an act of executive authority if
it be shown that the authority has contravened the law. It is for those who assert that the local
authority has contravened the law to establish that proposition. On the face of it, a condition of the
kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible
bodies like the local authority in this case will exceed their powers; but the court, whenever it is
alleged that the local authority have contravened the law, must not substitute itself for that authority.
It is only concerned with seeing whether or not the proposition is made good. When an executive
discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to
be an exercise of that discretion can only be challenged in the courts in a strictly limited class of
cases. As I have said, it must always be remembered that the court is not a court of appeal. When
discretion of this kind is granted the law recognizes certain principles upon which that discretion
must be exercised, but within the four corners of those principles the discretion, in my opinion, is an
absolute one and cannot be questioned in any court of law. [19]
What then are those principles? They are well understood. They are principles which the court looks
to in considering any question of discretion of this kind. The exercise of such discretion must be a
real exercise of the discretion. If, in the statute conferring the discretion, there is to be found
expressly or by implication matters which the authority exercising the discretion ought to have regard
to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of
the subject matter and the general interpretation of the Act make it clear that certain matters would
not be germane to the matter in question; the authority must disregard those irrelevant collateral
matters."

Summary
The Court of Appeal held that it could not intervene to overturn the decision of the defendant
corporation simply because the court disagreed with it. To have the right to intervene, the court would
have to form the conclusion that:
The corporation, in making that decision, took into account factors that ought not to have been taken
into account, or
The corporation failed to take 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 condition did not fall into any of these categories. Therefore, the claim failed
and the decision of the Wednesbury Corporation was upheld. The test laid down in this case, in all
three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to
describe the third limb, of being so unreasonable that no reasonable authority could have decided that
way.

Post-Wednesbury In Common Law

These principles of Wednesbury unreasonableness underwent major modification through the course
of decisions in England. A classic example would be the decision of Lord Diplock in the celebrated
case of Council of Civil Services Unions v. Minister for the Civil Services [20] also known as GCHQ
case. Through his judgment, Lord Diplock widened the grounds of judicial review. He mainly
referred to three grounds upon which administrative action is subject to control by judicial review.
The first ground being illegality", the second irrationality" and the third procedural impropriety.
He also mentioned that by further development on a case to case basis, in due course, there may be
other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a
way, Lord Diplock replaced the language of reasonableness with that of rationality when he said:
By irrationality I mean what can by now be succinctly referred to as Wednesbury
unreasonablenessIt 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."
The principle of proportionality envisages that a public authority ought to maintain a sense of
proportion between his particular goals and the means he employees to achieve those goals, so that
his action impinges on the individual rights to the minimum extent to preserve public interest.
Thus implying that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred. The principle of proportionality therefore implies
that the Court has to necessarily go into the pros and cons of any administrative action called into
question. Unless the impugned administrative action is advantageous and in public interest such an
action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to
examine whether the power conferred is exercised in proportion to the purpose for which it has been
conferred. Thus, any administrative authority while exercising a discretionary power will have to
necessarily establish that its decision is balanced and in proportion to the object of the power
conferred. This is so as administrative decisions can often have profound implications on the day-today lives of our citizens, their rights, liberties, and legitimate pursuits.
The test adopted by Lord Diplock also underwent criticism and it was said in another decision as
conduct which no sensible authority acting within due appreciation of its responsibilities would have
decided to adopt" and these unexaggerated criteria give the administrator ample and rightful rein,
consistently with the constitutional separation of powers.
In a recent decision, R (Daly) Vs. Secretary of State for the Home Department [21] , Lord Steyn
explained the earlier decision and opined on the principles of judicial review as under:
26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires
clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review
(Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation [1948] I KB 223), and in
particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental

rights ..There is a material difference between the Wednesbury and Smith grounds of review and
the approach of proportionality applicable in respect of review where Convention rights are at stake."

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Disclaimer
This essay has been submitted to us by a student in order to help you with your studies. This is not an
example of the work written by our professional law writers.
However, in the case of ex-parte Daly, it is the speech of Lord Cooke of Thorndon that has attracted
much attention to the principle of judicial review as enunciated in the Wednesbury Case.
[32]. And I think that the day will come when it will be more widely recognized that the
Wednesbury case was an unfortunately 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. The depth of
judicial review and the deference due to administrative discretion vary with the subject matter. It may
well be, however, that the law can never be satisfied in any administrative field merely by a finding
that the decision under review is not capricious or absurd." (p447)
This widely cited quote has generated much debate and anxiety over the applicability and future of
the Wednesbury Principle. Some commentators feel that in the light of the above statement in the
Daly Case, the administrative power of discretion that has remained protected from judicial review
unless challenged on the grounds of absurdity, irrationality or perversity was now open to the test of
proportionality as enunciated by Prof. Jeffrey Jowell in his article titled Beyond the Rule of Law:
Towards Constitutional Judicial Review".
Professor Jowell describes the proportionality test to involve a sophisticated four stage process
posing the following questions:(1) Did the action pursue a legitimate aim?
(2) Were the means employed suitable to achieve that aim?
(3) Could the aim have been achieved by a less restrictive alternative?
(4) Is the derogation justified overall in the interests of a democratic society?
According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a
fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny of a
decision called into question.
According to De Smith, Woolf and Jowell on Judicial Review of Administrative Action, [22] there are
three principal formulations by which proportionality is tested.
The principle of proportionality evaluates two aspects of a decision:
(1) Whether the relative merits of differing objectives or interests were appropriately weighed or
"fairly balanced"?

(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an
unnecessary burden on affected persons? [23]

Conclusion
Substantive review has always been considered an anathema in judicial review proceedings. When
Lord Denning, M.R. stated:
"I go further. Not only must he be given a fair hearing, but the decision itself must be fair and
reasonable." [30]
On appeal Lord Chancellor and Lord Brightman lost no opportunity to rebuke such a proposition on
the ground that it went against the well-established principles of judicial review viz., that judicial
review is not concerned with the decision but with the decision-making process
The superior Courts in India enjoy the powers of judicial review and this is accepted as one of the
basic features of our Constitution. We have been following the common law principles in the matter
of justice delivery system, and for interpretation of the Constitution and the Statutes we rely heavily
on some of the basic principles laid down by the superior Courts of common law countries. It is,
therefore, of immense importance that some of the decisions of the United States Supreme Court, The
House of Lords and The Court of Appeal in the United Kingdom, the Supreme Court of Canada and
the High Court of Australia attract our attention and we closely follow them in appropriate cases. But,
we must also remember that these decisions are rendered in peculiar socio-economic conditions of
those countries and many of these principles cannot be applied implicitly in Indian conditions.
However, the general guidelines issued in these decisions have always been applied by our Courts. In
the matter of administrative law, there have been tremendous changes in recent times. There is even a
fundamental shift in a great deal of public law litigation in England, by virtue of the implementation
of the Human Rights Act, 1998, the shift has been significantly accelerated and the principles of
judicial review must be actually justified by Constitutional provisions. Though the right of superior
Courts to invoke the judicial review is guaranteed by the Constitution, its content, reach and power,
and the balance between various principles are not enunciated in any provision of the Constitution,
but have probably been founded on various principles enunciated on the basis of notions of fairness
which generally permeate the common law.