The government’s response to a paper on judicial review, which was my last post here, is good as far as it goes. It holds back from necessary reform though: the first such reform is a restatement of the Wednesbury rules, and specifically the ‘reasonableness’ element.
The Wednesbury rules are set out in a page on this site (Judicial Review: a guide). In essence, a decision must take account of all relevant purposes, take account of no irrelevant purpose, and must not be unreasonable. All these are hostage to fortune: the last is a bear-trap, misused to side-step the rule of law.
The paper does not refer to Wednesbury directly but does give a firm background for it: any power granted by Parliament has explicit limits, but may also have implied limits. The Wednesbury rules are implied, unspoken limits. For example, Parliament may grant councils an explicit power to licence certain businesses, but it must not use the power to favour councillors’ family businesses and suppress competitors: that will not be set out in the Act but is implied. The paper contains a stern reminder that these limits are only implied, and not a universal truth, and Parliament could disapply them, and has done.
‘Reasonableness’ is a problem though. In Wednesbury and later cases it has been explained: unreasonableness is insanity: a decision made by someone who has lost his power of reason.
Decision-makers are rarely clinically mad though, so impliedly it is an evidential question: ‘Was the decision so devoid of reason that no sane man could have made it? If so, and assuming the decision-maker was not mad, it must have been made without regard to the genuine factors or for an improper purpose.‘
The word ‘reasonableness’ has other meanings though in everyday life, and these have been used by some judges to widen their remit. It can be used by a judge to usurp the decision-making process so that the judge substitutes his own reasoning a the mete-rod of ‘reasonableness’. That, negating powers and discretions given by law, subverts the rule of law.
The Government paper is sound on all these points as a restatement of the strict law. However, it is only a government paper – it is not an Act of Parliament nor a legal judgment: it has no force of law whatsoever. The Ministry of Justice may feel they have done will in preparing this paper, but no judge could take it into account. It needs an Act of Parliament to give direction.
A lurking instability are that the Wednesbury Rules themselves are found in no Act of Parliament. They were deduced by the Court of Appeal in 1948, in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation. That in itself may tempt an judge with a sense of a good cause to determine that some other implications are yet to be found by a judge with his own perspicacity.
The idea of reasonableness in Wednesbury is strictly limited though, and Lord Greene knew it could be abused:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation  Ch 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.
To set this strict definition out in black-and-white law may be a challenge to the sesquipedalian legal draftsmen of our day, but it is quite simply when boiled down.
To retain the requirement of ‘reasonableness’ is consistent with what Parliament must have intended and so supports the rule of law. To extend it to allow a judge to strike a decision down by applying his own standards of reason and preference would discard the rule of law entirely, in favour of the rule of lawyers.
- A start to fixing judicial review
- The rule of lawyers
- What is judicial review?
- The work begins – constitutional reform
- Murmuring the Judges – 1
- Murmuring the Judges – 2
- Murmuring the (supreme) Judges – 3
- Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes (Thomas Hobbes)
- The Rule of Law by Tom Bingham (former senior Lord of Appeal)
- Trials of the State: Law and the Decline of Politics by Jonathan Sumption (former Justice of the Supreme Court)
- The Secret Barrister: Stories of the Law and How It’s Broken
- Montesquieu: The Spirit of the Laws
- Scots Law for Journalists by Rosalind McInnes
- Constitutional & Administrative Law by Neil Parpworth
- De Cive by Thomas Hobbes
- Leviathan by Thomas Hobbes
- Behemoth: The History of the Causes of the Civil Wars of England, and the Councils and Artifices by Which They Were Carried on from the Year 1640 to the Year 1660 by Thomas Hobbes
- Thomas Hobbes – Behemoth (Clarendon edition)
- The Prince by Niccolo Machiavelli
- The Madness of Crowds: Gender, Race and Identity by Douglas Murray