articles Commonwealth Law Bulletin

Beyond Wednesbury: substantive

principles of administrative law
Jeffrey Jowell, Professorof Public Law, University College, London, andAnthony
Lester, QC, Master of the Bench of Lincoln's Inn and Honorary Visiting Professor
of Public Law, Faculty of Laws, University College, London. Reproduced from
(1988) Public Law 365, with the kind permission of the publishers.
There are clear signs that in administrative law cases English judges are beginning
to abandon their traditional preference for dealing with the technicalities of
remedies rather than the principles governing official action and individual rights.'
In a recent immigration case in the House of Lords 2 Lord Bridge stated that
courts are entitled, within limits,
to subject an administrative decision to the more rigorous examination, to ensure that
it is in no way flawed, according to the gravity of the issue which the decision determines.
The most fundamental of all human rights is the individual's right to life and when an
administrative decision under challenge is said to be one which may put the applicant's
life at risk, the basis of the decision must surely call for the most anxious scrutiny.
Lord Templeman expressed his view that-
where the result of a flawed decision may imperil life or liberty a special responsibility
lies on the court in the examination of the decision-making process.
This unequivocal recognition of the need for stricter scrutiny of administrative
discretion where fundamental human rights are at stake, and of the need to
protect those rights, has great potential significance for the development of public
3
law.
In this essay we explore the implications of an approach to the review of the
substance of administrative decisions that is'based less upon pragmatic interven-
tion 4 such as that encouraged by the test of "unreasonableness" used in the
Wednesbury case, 5 and more upon general principles of law. We argue that the
recognition and application of substantive principles would satisfy the need in a
fast developing area of law for clarity and coherence. Far from encouraging judges
to meddle with the merits of official decisions, it would we believe promote
consideration of the proper role of the courts in the growing common law of
public administration. It would also enable the courts to strengthen the protection
of fundamental human rights against the misuse of official discretion without
usurping legislative or executive powers.

1 "... typically, English law fastens, not upon principles but upon remedies," per Lord
Wilberforce in Davy v Spelthorne BC [1984] AC 262 at p. 276.
2 In Bugdacay v Secretary of State for the Home Department [19871 1 All ER 940 (HL).
3 See also R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC
74 and the cases cited therein, especially by Lord Scarman at pp. 110-111.
4 For a recent work commenting critically upon the high place of pragmatism and the low
place of theory in English law, see P S Atiyah, Pragmatism and Theory in English Law
(1987), especially pp. 112-121.
5 Associated ProvincialPicture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
April 1988 articles

Two Forms of Substantive Review

Every now and again judges claim that judicial review is concerned "not with the
decision but with the decision-making process."' Such statements give the impres-
sion that the substance of official decisions is immune from review, and that the
courts may only intervene on the ground of what Lord Diplock, in the GCHQ
case 2 called "procedural impropriety." Yet, as Lord Diplock's other categories of
review recognise, official decisions are in practice appropriately reviewed for
substance as well as process.
The first way in which courts challenge the substance of official decisions is
through review on the ground of what Lord Diplock referred to as "illegality".
This ground involves the courts in insisting that public bodies keep within the
scope of their powers. A statutory power to run buses, for example, does not
permit the running of tramways. The delineation of the scope of a public power
is, of course, rarely a mere mechanical exercise. Does the Town and Country
Planning Act 1971, for example, permit local authorities, through their develop-
ment plans, to encourage the retention of traditional industries, or does the scope
of the Act allow only "land use" aims to be pursued?3 Interpretation of this kind
is the stuff of much legitimate judicial activity aimed at discovering purpose and
keeping public officials within the "four corners" of their conferred powers.
Lord Diplock's third ground of review, "irrationality", identifies a different
way in which the substance of official decisions may be challenged by the courts.
By separating irrationality from illegality, he made the point that even though a
decision may be legal (in the sense of being within the scope of the legislative
scheme), it may nevertheless be substantively unlawful. In other words, he
recognised that the courts may strike down a decision because it offends substantive
principles, independent of those provided for by the statute in question. Lord
Diplock said as much, defining irrationality as applying to "a decision which is
so outrageous in its defiance of logic or of accepted moral standards that no
sensible person who4 had applied his mind to the question to be decided could
have arrived at it."
With rationality now standing on its own feet as an independent ground of
review, the GCHQ decision clears the way for the courts to develop general
principles of substantive administrative law based upon what Lord Diplock called
"accepted moral standards".
The standard of irrationality echoes that of "unreasonableness" provided by
the Wednesbury case. Yet the Wednesbury test never satisfactorily distinguished
the two notions of substantive review that we identify. Lord Greene's judgment
in Wednesbury ran together notions of deviation from purpose ("illegality" in
Lord Diplock's sense) and deviation from fundamental principles ("irrationality"
in Lord Diplock's sense). Under the first, it included the necessity to take into
account relevant considerations and to exclude irrelevant considerations. Under

1 Per Lord Brightman in Chief Constable of North Wales Police v Evans [1982] 1 WLR
1155, who added (at p. 1173) that unless the court observed that restriction on its power
it would "under the guise of preventing the abuse of power, be itself guilty of usurping
power." Lords Hailsham and Brightman expressly disapproved Lord Denning's view in
the Court of Appeal that the appellant "must not only be given a fair hearing, but the
decision itself must be fair and reasonable."
2 Council of Civil Service Unions v Minister of the Civil Service [1985] AC 374.
3 Westminster City Council v Great Portland Estates plc. [19851 AC 661.
4 In the GCHQ case, supra, at pp. 410-411.
articles Commonwealth Law Bulletin
the second, it included bad faith, dishonesty, disregard of public policy and
"absurd" considerations such as discrimination against a teacher on the ground
of her red hair. At times Lord Greene suggested that matters under the second
head, such as bad faith and dishonesty, "stand by themselves", and then in the
next breath considered them to "overlap (with the first) to a very great extent".
The red-headed discrimination example was described as-
unreasonableness 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.
Later in his judgment, however, the distinction became clearer. Lord Greene
summarised unreasonableness as allowing the court to investigate action with a
view to seeing whether, in effect, relevant considerations had been taken into
account and irrelevant matters excluded and then said-
Once that question is answered in favour of the local authority, it may be still possible
to say that, although the local authority have kept within the four corners of the
matter which they ought to consider, they have nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever have come to it.
Existing case law makes it clear that the courts do in practice review on substance
even where the decision is otherwise faithful to the statutory purpose. In a typical
planning case, for example, Hall v Shoreham UDC,' planning permission was
granted to develop a site subject to the condition that the applicant must himself
construct an access road effectively to be dedicated to public use. This condition
was held unlawful because "unreasonable", despite the fact that the purpose of
the statute was followed in all respects; access is a proper consideration of land-
use planning with which the authority were right to concern themselves. The
decision was therefore unlawful not because it took into account considerations
that were "irrelevant", or failed to take into account considerations that were
"relevant". Nor did the authority fall foul of any duty to act honestly or in good
faith. The condition fell only because it offended the right of the plaintiff not to
be subjected to the unacceptable burden that would be involved in dedicating his
land to public use without due compensation. In effect the decision upheld a basic
civil right (to be fairly compensated for property taken) independent of statutory
purpose.
Lord Diplock's separation of illegality from irrationality thus usefully dis-
tinguishes two grounds of substantive review. The first, illegality, is concerned
with the infidelity of an official action to a statutory purpose, usually involving
taking into account considerations that are irrelevant to that statute's purpose, or
failing to take into account considerations that are relevant. The second,
"irrational" decision is independent of statutory purpose which it may, as in
Hall, even advance. Yet the term irrationality, while appropriate to cover arbitrary
or capricious conduct, is not a satisfactory way of describing the more normal
types of abuse of public power that give rise to judicial review while being within
the scope of a statute and procedurally satisfactory. It is the judicial review of
these abuses that call for substantive principles of administrative law derived from
standards of administrative propriety and the basic rights and liberties of the
individual and of citizenship.

1 [1964] 1 All ER 1.See also R v Hillingdon London Borough Council, ex parte Royco
Homes Ltd. [1974] QB 720; and see generally, M. Grant, Urban Planning Law (1982),
pp. 342-348.
860
April, 1988 articles

The Challenge of Independent Substantive Review

Once independent substantive review is recognised then the way lies open to
develop governing principles. Is the present test of (Wednesbury) unreasonableness
a satisfactory principle on its own?
We suggest that it is unsatisfactory for three reasons. First, it is inadequate.
The incantation of the word "unreasonable" simply does not provide sufficient
justification for judicial intervention. Intellectual honesty requires a further and
better explanation as to why the act is unreasonable. The reluctance to articulate
a principled justification naturally encourages suspicion that prejudice or policy
considerations may be hiding underneath Wednesbury's ample cloak.
Secondly, the context of Wednesbury unreasonableness is unrealistic. Attempting
as it does to avoid judicial intervention in the merits of decisions assigned to
officials, it seeks to prevent review except in cases where the official has behaved
absurdly or has "taken leave of his senses".' In practice, however, the courts are
willing to impugn decisions that are far from absurd and are indeed often coldly
rational. Were the courts only to interfere with decisions verging on the insane, a
zone of immunity would be drawn around many oppressive or improper decisions
that are in reality vulnerable to judicial review. And public authorities which had
taken leave of their senses could use the language of rationality to circumvent
judicial review.
Thirdly, the Wednesbury test is confusing, because it is tautologous. It allows
the courts to interfere with decisions that are unreasonable, and then defines an
unreasonable decision as one which no reasonable authority would take. (Imagine
a law allowing the demolition of unfit houses, and then defining "unfit" not in
the normal sense of that word but in the sense that no fit house could so be!)
One can understand that Lord Greene's definition of unreasonableness sought to
make the judges think twice about interfering with the merits of official decisions,
but a test which requires the official action not to be ordinarily reasonable, but
only, in effect, extremely unreasonable, is unhelpful as a practical guide.
Would substantive review be improved by reducing reliance upon Wednesbury
unreasonableness, and its progeny "irrationality", and, where possible, developing
independent principles? In our view the beneifts of argument from principle mirror
the defects of the Wednesbury approach; justification by reference to principles is
intellectually honest, avoiding as it must the obscurity of a vague test and openly
revealing the true reasons for intervention.
The recognition of principles also promotes needed clarity. We have already
referred to the Hall case where Wednesbury unreasonableness disguised the true
reason for quashing the condition, which was the breach of an accepted principle
that property may not be taken without fair compensation. Had this principle
been more openly admitted the clarity of the decision, as well as its integrity,
would have been enhanced.
A recent case similarly suffering from the lack of any clear principle is Wheeler
v Leicester City Council.2 The council there withdrew the licence of a local rugby

1 Per Lord Scarman in R v Secretary of State for the Environment, ex parte Notts CC
[1986] AC 240 (HL). See also Pulhofer v Hillingdon LBC [1986] AC 484 where the House
of Lords required "absurd" or "perverse" behaviour for a local authority to be subject
to Wednesbury unreasonableness in the performance of its powers to house the homeless,
de Smith, by contrast, considers the reference to "overwhelming" proof in Wednesbury
now to be "unnecessary": de Smith, Judicial Review of Administrative Action (4th ed.,
by J. M. Evans, 1980), p. 354.
2 [19851 AC 1054.
articles Commonwealth Law Bulletin

club because the club had refused to press four members who had agreed to take
part in the English ruby footballers' tour of South Africa to withdraw from that
tour. The council was acting in pursuance of its statutory power (to grant licences
on their own land) and claimed that they were acting also under their general
statutory duty to promote good race relations. In the House of Lords, Lord
Roskill would have been prepared to strike down the council's action on the
ground of Wednesbury unreasonableness, but did not pursue that point, preferring
to adopt the principle of "procedural propriety" because of the "unfair manner
in which the Council set about obtaining its objective". Lord Templeman carefully
refrained from putting the council's action into any category, except misuse of
power conferred by Parliament, the misuse amounting to "punishing the club
when it had done no wrong".
With due respect to Lord Roskill's reasoning, no evidence of procedural
impropriety was produced in the case. The notion of punishing without wrong
(Lord Templeman) or unfair means of obtaining an end (Lord Roskill) comes
very close to the European principle of "proportionality", which Lord Diplock
in the GCHQ case raised as a fourth ground of review possibly ripe for develop-
ment. We welcome this development, but see proportionality as a principle of
substantive review appropriate for application in a case like Wheeler, and not
different in kind from other such principles which we consider in the next section.
A better way of handling Wheeler was pointed to by Browne-Wilkinson U in
his dissent in the Court of Appeal,1 where he raised the conflict between "two
basic principles of a democratic society", the one allowing a "democratically
elected body to conduct its affairs in accordance with its own views" and the
other "the right to freedom of speech and conscience enjoyed by each individual".
Although declining to decide the case on grounds of Wednesbury unreasonableness
(which he would have reserved for "perverse" decisions), and basing his decision
in effect on "illegality" (the council having taken a "legally irrelevant factor"
into account in exercising their powers in relation to open spaces), he came close to
overruling the council's actions on the independent ground that they discriminated
against persons who held lawful views, and acted inconsistently with "fundamental
freedoms of speech and conscience". 2
Cases like Wheeler illustrate the fact that judges are not comfortable when
fitting official action into tests as general as Wednesbury unreasonableness. Nor,
incidentally, are practising lawyers well suited to advising public authorities on
this question. Both judges and legal advisers are better suited to seeking principles
governing individual rights and official duties derived from traditional sources of
law.

The Content of Substantive Principles

Where do we discover any principles of substantive review? Look carefully and
we find them even now lurking within the underbrush of Wednesbury. As we
have seen, decision-makers far from senseless have been reviewed by the courts in
generating principles which, although not often overtly expressed, nevertheless
pray in aid Lord Diplock's "accepted moral standards". Indeed, just as Molire's
Monsieur Jourdain had been speaking prose for more than 40 years without

1 Ibid., at pp. 1064-1065.

2 Lord Templeman's "no punishment without wrong" could also be seen as the violation
of the principle of legal certainty (discussed below) described by the maxim nulla poena
sine lege.
862
April 1988 articles
knowing it,' the existing case law shows that for many years English judges have
been stating principles of substantive review of administration without knowing
or, more likely, admitting it.
We suggest three categories of independent substantive review. Within the first
are principles prohibiting decisions that are "irrational" in the accepted sense of
that term-decisions displaying no intelligible reason, or arbitrary decisions, made
perhaps by "consulting an astrologer or spinning a coin". 2 The second category
contains principles prohibiting decisions that violate accepted standards of adminis-
trative probity (such as faudulent decisions, or decisions taken in bad faith) or of
good administrative practice (such as decisions that are unjustifiably inconsistent).
The third category, less easy to discern beneath Wednesbury camouflage, contains
decisions struck down by the courts because they unjustifiably violate fundamental
rights and freedoms.
We recognise the overlap between these categories, and emphasise that they are
not exclusive. There is merit in a flexible residual category of "unreasonableness"
3
to cover the unusual case.
Nor are the boundaries of each category rigid. As with all judicial decisions the
common law method will allow incremental development, by reference to tra-
ditional legal sources, including national statutory and private law analogies,
international sources (such as European Community and Convention standards)
and other sources of "accepted moral standards".
The first category, containing "irrational" decisions, is relatively uncontrover-
sial, although its boundaries are presently being tested by the question (for
example) of the validity of decisions unsupported by evidence.4
The second category is in a more rapid state of development, as principles of
good administrative practice are receiving increasingly rigorous assessment, in the
light particularly of new European standards. Three principles might be considered
here: those of proportionality, certainty and consistency.

The principle of proportionality

The principle of proportionality has already been recognised by the Court of
Appeal in the extreme circumstances of R v Barnsley Metropolitan BC, ex parte
Hook5 (disproportionate administrative penalty), and by Lord Widgery CJ in the
Crossman Diaries case6 (disproportionate restriction upon freedom of expression),
and by Browne-Wilkinson J in the Employment Appeal Tribunal (employer's

1 Moliere le Bourgeois Gentilhomme, Act II, Scene 4.

2 R. v Deputy IndustrialInjuries Commissioner, ex parte Moore [19851 1 QB 456 at p. 488,
per Diplock U.
3 See, eg, the cases cited by Wade as examples of "pure unreasonableness": HWR Wade,
Administrative Law (5th ed., 1982), at pp. 364-365.
4 See Coleen PropertiesLtd v Minister of Housing and Local Government [1971] 1 WLR
433 for this notion in the context of a fair hearing, but also referred to in the context of
"unreasonableness" in Secretary of State for Education and Science v Tameside MBC
[1977] AC 1014.
5 [1976] 1 WLR 1052.
6 Attorney-General v Jonathan Cape Ltd. [1976] QB 752.
articles Commonwealth Law Bulletin

economic justification for unequal pay for work of equal value).' It seems so
characteristically English to require that the means employed by the decision-
maker must be no more than is reasonably necessary to achieve his legitimate
aims-that he should not use a sledgehammer to crack a nut-that there should
be no difficulty in absorbing the concept of proportionality into the English
2
judicial process. Its incorporation in cases such as Wheeler and Congreve
(withdrawal of licences a disproportionate means of achieving the authorities'
aims) would have strengthened the intellectual cogency of their reasoning. Planning
conditions may now be struck down for failing "fairly and reasonably to relate"
to the permitted development4-another way of expressing the disproportionate
effect of those conditions. English courts are already bound to give effect to the5
law.
principle of proportionality in cases involving directly effective Community
It is a key tool in the interpretation of the European Convention on Human
Rights; and its use by our courts would reduce the violations of the Convention
by the United Kingdom. All in all, the requirement that the decision-maker must
have a sense of proportion
6
seems ripe for full recognition as an English principle
of administrative law.

1 Jenkins v Kingsgate (Clothing Productions)Ltd [1981] I CR 715. The EAT held here that
even though an employer could show that he was pursuing a legitimate aim (ie, an aim
other than sex discrimination) he must also show that the difference in treatment was
necessary to achieve that aim, ie (though not expressly said) proportionate to that aim.
For examples of the application of this principle in other private law contexts, see, eg,
Herbert Morris Ltd v Saxelby [1916] AC 688 (HL), at pp. 698-699, per Lord Atkinson;
and pp. 706-707, per Lord Parker of Waddington (covenant in restraint of trade must
give no wider protection than is necessary); see also Home Counties DairiesLtd v Skilton
[1970] 1 WLR 526 (CA), at p. 534, per Salmon LJ ("The sole question is whether the
clause imposes a greater restraint upon the employee than is reasonably necessary for the
protection of the employer's business. If it does, it is unenforceable."); International
Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 (CA) (consent
of landlord to assignment of lease not to be unreasonably withheld); at p. 522; per
Balcombe LJ ("In my judgment the gross unfairness to the tenants of the example
postulated by the judge strengthens the arguments in favour, in an appropriate case, of
which the instant case is one, of it being unreasonable for the landlord not to consider
the detriment to the tenant if consent is refused, where the detriment is extreme and
disproportionate to the benefit to the landlord."). For examples of the relevance of the
principle in the context of freedom of expression and contempt of court, see Attorney-
General v Times Newspapers Ltd [1974] AC 273 (HL), at p. 294E, per Lord Reid; and
p. 302C per Lord Morris of Borth-y-Gest. See also R v Secretary of State for Education
and Science, ex parte Schaffter [1987] 1 IRLR 53.
2 Supra page 862, n. 2.
3 Congreve v Home Office [1976] 1 QB (CA). Lord Denning MR in this case also drew on
the presumption in the Bill of Rights that Parliament should not be taken to have intended
to authorise taxation by public bodies unless the power had been conferred in clear terms.
Malcolm Grant would apply this presumption to planning conditions seeking developers'
contributions: Grant, op. cit., pp. 343-344.
4 Newbury DC v Secretary of State for the Environment [1981] AC 528 (HL).
5 eg, Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129 (ECJ);
Rainey v Greater Glasgow Health Board [1987] 1 All ER 65 (HL).
6 See R v Brent LBC ex parte Assegai, The Independent, 12 June 1987, where Woolf LJ
referred to the banning resolution as having "constituted a reaction wholly out of
proportion to what the applicant had done."
April, 1988 articles
The principleof legal certainty
In the words of the European Court of Human Rights,
the law must be adequately accessible; the citize must be able to have an indication
that is adequate to a given case. Secondly .... he must be able to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may
entail.'
This approach is well recognised as essential to ensure legal certainty under
Community law as well as under the European Convention. Its most celebrated
English exponent was Sir William Blackstone, 2 and it is recognised as essential in
4
English criminal law, 3 and has a growing place in English administrative law.
For example, Raymond v Honey, 5 rightly decided upon the basis of another
general principle apparently derived from the law of the European Convention,
namely, the principle that everyone should have unimpeded access to the courts,
could also have been decided upon the further basis that the interference with the
prisoner's correspondence was not prescribed by law so as to satisfy the principle
of legal certainty. Wheeler (supra) and Congreve (supra), as we have seen, could
be justified more convincingly than they were by spelling out more clearly the
notion that legal certainty requires no punishment without the breach of established
law. Fairness in general requires warning of the grounds of interference with
prexisting rights or interests.
The principle of consistency
The principle of consistency is applied without hesitation in Community law. 6 It
7
was confirmed at least tentatively in English law in HTV Ltd v Price Commission
8
and in Re Preston, where it was acknowledged that fairness requires officials to
follow their rules in like cases and not to breach their own contracts or represen-
tations. In the recent case of Asif Khan9 the Court of Appeal held that the Home
Office was bound by the terms of a circular although there was no prejudicial
reliance upon it.
Fundamental human rights
The general test of "unreasonableness" was of course applied long before the
Wednesbury case. In 1898, in Kruse v Johnsor4° Lord Russell of Killowen CJ
expressed the view that local authority by-laws should be "benevolently interpre-
ted" by the courts, but could be struck down for unreasonableness-
If, for instance, they were found to be partial and unequal in their operation between
different classes; if they were manifestly unjust; if they disclosed bad faith; if they
involved such oppressive or gratuitous interference with the rights of those subject to
them ...
This affirmation of rights is much bolder than many judges would today admit,
but is consistent with the hidden rationale of a number of cases.

1 Sunday Times v UK (26 April 1979) 2 EHRR 245 at p. 271.

2 Blackstone's Commentarieson the Laws of England (1765) Vol. 1 p. 44.
3 Glanville Williams, Criminal Law, the General Part(2nd ed., 1961) pp. 575-576.
4 See, eg, Blackpool Corporation v Locker [1948] 1 KB 349 (CA) at p. 361, per Scott LJ;
McEdowney v Forde [1971] AC 632.
5 [1983] AC I (HL).
6 John Usher, "The Good Administration of European law" [1985] CLP 269.
7 [1976] ICR 170 (CA)
8 [1985] AC 835 (HL)
9 R v Secretary of State for the Home Department, ex parte Khan [1984] 1 WLR 1337;
and see A R Mowbray (1985) PL 558.
10 [1889] 2 QB 91.
articles Commonwealth Law Bulletin

The reference by Lord Russell to the invalidity of "partial and unequal laws",
echoes the red-headed teacher's example in Wednesbury, upholding a right to
equality of treatment without unfair discrimination, which is also recognised in
2
Community law as a general principle of law.' In Nagle v Feilden, Danckwerts
LJ referred to the Sex Disqualification (Removal) Act 1919, "whether it applies
to the present case or not," as showing "the position of present-day thought".
Like the other members of the Court of Appeal, he held that the discriminatory
practice of the stewards of the Jockey Club "is out of date and no longer justified
3
by present conditions". In Blathwayt v Baron Cawley (an allegedly discriminatory
forfeiture clause in a will), Lord Wilberforce accepted that widely accepted treaties,
such as the European Convention, and statutes, such as the Race Relations Act,
may point the direction in which conceptions of public policy may move. In the
light of the widely accepted British legislation prohibiting unfair discrimination,
and in the light of the United Kingdom's membership of the Community and
adherence to international human rights conventions forbidding discrimination,
the time is surely over-ripe for recognition of equality of treatment as a general
principle of English administrative law.
We have referred in the section above to the principle of just compensation for
expropriation lurking in the Hall case (supra), and to Browne-Wilkinson LJ's
reference in Wheeler to "fundamental freedoms of speech and conscience" as4
Herbage,
basic rights inherent in the English legal system (supra). In Ex parte
Purchas LJ derived from the English Bill of Rights of 1688 a "fundamental right"
not to be inflicted with "cruell and unusuall punishments" which "goes far beyond
the ambit of the prison rule". He stated that
if it were established that a prison governor was guilty of such conduct it would be an
affront to common sense that the court would not be able to afford relief under RSC,
0.53.
Incidentally, the Court of Appeal could also have gained support for this general
principle from Article 3 of the European Convention on Human Rights which
forbids torture, or inhuman or degrading punishment or treatment at the hands
of the state or its agents.
Finally, as mentioned above, the House of Lords has recently invoked the rights
to life and liberty as principles requiring particularly anxious scrutiny of the
decisions of immigration officials about refugees seeking political asylum in the
5
United Kingdom
The European Court of Justice has frequently relied upon the doctrine of
fundamental rights and has drawn upon the European Convention as a source of
the general principles of law which must guide Community officials in exercising

1 See, eg, Holtz & Willemsen GmbH v Council and Commission [19741 ECR 675.
2 [1966] 2 QB 633 (CA) at p. 651.
3 [1976] AC 397 (HL) at p. 426. See Maynard v Osmond [1977] QB 240, 258-259 where it
was assumed that a statutory instrument could be invalid for unreasonableness if its
provisions unfairly discriminated between senior and junior officers. See also Cumings v
Birkenhead Corporation [1972] Ch 1 (CA).
4 R v Secretary of State for the Home Department, ex parte Herbage (No. 2) [1987] 1 All
ER 324 (CA).
5 Supra, nn. 2 and 3.
 April 1988 articles
their powers, as well as in interpreting Community legislation.' It is open to the
English courts to adopt a similar approach.
In Garland v British Rail Engineering Ltd.,2 Lord Diplock stated, on behalf of
a unanimous House of Lords-
It is a principle of construction of United Kingdom statutes, now too well established
to call for citation of authority, that the words of a statute passed after the treaty has
been signed and dealing with the subject matter of the international obligation of the
United Kingdom, are to be construed, if they are reasonably capable of bearing such a
meaning, as intended to carry out the obligation and not to be inconsistent with it.
That general principle of statutory interpretation has caused the House of Lords
to refer to Article 7 of the European Convention as an aid to the construction of
the Immigration Act 1971 (so as to avoid retrospective criminality).3 Although the
Convention is not incorporated in our law, it is submitted that the exercise of
public powers should be subject to the presumption (in the absence of compelling
statutory language to the contrary) that nothing may be done by a public body
which infringes the rights and freedoms guaranteed by the European Convention
(and the other international human rights treaties by which the United Kingdom
is bound).4
Unfortunately, after initial support, there is authority to the contrary in the
Court of Appeal. Originally in Bhajan Singh's case, 5 Lord Denning MR held that
the court should construe the Immigration Act so as to be in conformity with the
Convention and that: "immigration officers and the Secretary of State in exercising
their duties ought to bear in mind the principles stated in the Convention".
In the same year, Scarman LJ stated in Phansopkar'scase 6 that it was the duty
of public authorities in administering the law, including the Immigration Act, and
of the courts in interpreting and applying the law, to have regard to the Conven-
tion. In Salamat Bibi's case, 7 Lord Denning MR withdrew his previous observation
that immigration officers ought to bear in mind the principles stated in the
Convention. He said that he now thought that this would be asking too much of
them. They could not be expected to know or apply the Convention. They should
go simply by the Immigration Rules laid down by the Home Secretary. Roskill
LJU believed that the statements of Scarman LJ were too wide and might call for

1 For example, in the Second Nold Case, the court stated that "fundamental rights form
an integral part of the general principles of law, the observance of which ... (the Court)
ensures." "In safeguarding these rights, the Court is bound to draw inspiration from
constitutional traditions common to the Member States, and it cannot therefore uphold
measures which are incompatible with fundamental rights recognised and protected by
the Constitutions of those States." "Similarly, international treaties for the protection of
human rights on which the Member States have collaborated or of which they are
signatories, can supply guidelines which should be followed within the framework of
Community law." See also R v Kent Kirk [19841 ECR 2689; [1985] 1 All ER 453.
2 [1983] 2 AC 751 (HL) at p. 771.
3 Waddington v Miah [1974] 1 WLR 692 (HL).
4 On the question and on presumptions of statutory interpretation in respect of human
rights generally, see de Smith, op. cit., p. 99-100.
5 R v Secretary of State for the Home Department, ex parte Bhajan Singh [1976] QB 198
(CA) at p. 207.
6 R v Secretary of State for the Home Department, ex parte Phansopkar [1976] QB 606
(CA) at p. 626.
7 R v Chief Immigration Officer HeathrowAirport, ex parte Salamat Bibi [1976] 1 WLR
979 (CA) at p. 984.
8 Ibid., p. 986.
articles Commonwealth Law Bulletin

reconsideration. In Fernandes' case,' the Court of Appeal held that even the
Home Secretary himself was not obliged, in exercising his statutory powers, to
take into account the provisions of the Convention, since it does not have the
force of law in this country.
Given that the United Kingdom is bound, by Article 1 of the Convention, to
secure the rights and freedoms of the Convention for everyone within its jurisdic-
tion, and, by Article 13, to provide an effective remedy before a national authority
to everyone whose Convention rights and freedoms are violated,' and given that
the obligations imposed by the Convention are binding in international law upon
the executive and the courts, it is difficult to understand why it should be a source
of general principles only in interpreting legislation and not in the judicial review
of administrative action.
Substantive principles would focus on rights and duties in a more considered
way than the courts now do. Such a focus would surely have changed many a
decision or strengthened the reasoning in cases that now, we believe, reflect poorly
3
on our jurisprudence. The minority in Harman's case might have persuaded the
majority of the Lords that the restraint on Ms Harman's right to free expression
was disproportionate in the circumstances. The publishers of Mr Rupert Murdoch's 4
newspapers might have won their case against the three London boroughs on the
basis that the library authorities were not empowered to interfere unreasonably
with the public's right of access to the applicant's newspapers, rather than on the
narrower basis that the authorities5 were using their powers to punish Mr Murdoch.
Mr Ali might have won his case to be joined by his Bangladeshi wife, without
having to suffer the inordinate delay in obtaining an entry clearance certificate, by
invoking his right to respect for his family life without unfair discrimination,
6
guaranteed by Articles 8 and 14 of the Convention. Mr Malone might have
succeeded in establishing that a police officer is required as a public officer to
respect his right to privacy. Granada Television might have successfully resisted
British Steel Corporation's application to deliver up a confidential document
7
quoted in a television programme which was critical of BSC by relying upon the
right to freedom of expression, guaranteed by Article 10 of the Convention, which
is subject only to necessary exceptions construed strictly on the basis of the
principle of proportionality.
General Principlesand JudicialRestraint
By advocating the articulation of principles of substantive review we do not mean
to suggest that the courts, in exercising their review functions, should be freer

1 Fernandes v Secretary of State for the Home Department [1981] Imm. AR 1 (CA).
2 Indeed, the Court at Strasbourg may decide in the pending case of Boyle and Rice v UK
Application Nos. 9659/82, 9858/82, that the UK is obliged by Article 13 to provide
effective national remedies for claims of violation except where the claim is against the
operation of primary legislation.
3 Home Office v Harman [19831 AC 1 (HL).
4 R v Ealing, Hammersmith and Camden LBCs, ex parte Times Newspapers, The Times, 6
November 1986.
5 R v Secretary of State for the Home Department, ex parte Ali, The Times, 17 January
1987.
6 Malone v Metropolitan Police Commissioner [19791 Ch 344.
7 British Steel Corporation v Granada Television Ltd. [1981] AC 1096 (HL) cf. Hoffman
J's implicit recognition of press freedom in Re an Inquiry under The Company Securities
(InsiderDealing) Act 1985, The Times, 1 April 1987, reversed on appeal to the Court of
Appeal, 6 May 1987: New Law Journal,vol. 137, p. 454.
 April, 1988 articles
than they now are to challenge officials on the merits of their decisions. On the
contrary, the Wednesbury test, because of its vagueness, allows judges to obscure
their social and economic preferences more easily than would be possible were
they to be guided by established legal principle. The search for principle, based as
it is upon accepted standards of justice, fairness, and other dimensions of morality,
steers the courts away from policy or personal preference.'
We see from some of the local government expenditure cases how Wednesbury
reasoning can encourage rather than restrain judicial temptation to enter the policy
arena. In the GLC Fares Fair case, 2 for example, Lord Diplock, alone among the
judges, attempted to strike down the authority's hasty and massive cuts in transport
fares by employing the notion of "thriftlessness" to describe the GLC's actions.
Critics of the case 3 rightly deride the intervention of this so-called duty not to be
thriftless, which accords with no accepted principle of proper administrative
conduct.
The reasoning in Fares Fair might have been strengthened had the GLC's
actions been compared with those of authorities whose excessive rent increases
had been struck down as "unreasonable" 4-surely (although not expressly stated)
because they were "disproportionate" to the authorities' legitimate objectives. 5 In
the absence of any other settled principles of substantive review the judges would
have been freed to concentrate their reasoning on the ground of procedural
propriety (the "fiduciary" duty perhaps being a duty to consider the interests of
ratepayers as a whole) or the ground of illegality (considering whether the
consequences of the huge cut in fares put the decision outside the statutory
requirement to break even or, possibly, whether the failure to take into account the
ratepayer's interests was a failure to have regard to a "relevant consideration"). 6
We might best conclude this brief essay by making clear what we are not saying.
We do not want courts to usurp the functions of public authorities on matters of
fact, judgment or policy, all of which lie outside the appropriate function of
judicial review. Nor do we wish the courts to intervene when Parliament has made
it clear that the function in question has been allocated exclusively to the public
body in question. Nor do we suggest that the general category of unreasonableness
should be abandoned; its retention as a residuary category will always prove
valuable.
1 See R Dworkin, Taking Rights Seriously (1977), A Matter of Principle (1985), Law's
Empire (1986) for the distinction between principle and policy, and for the approach to
judicial decision-making adopted here, especially his notion of integrity.
2 London Borough of Bromley v GLC [1983] 1 AC 768.
3 See J A G Griffith, "Judicial Decision-Making in Public Law," (1985) PL 564; G L Peiris,
"Wednesbury Unreasonableness: The Expanding Canvas" [1987] CLJ 53 at pp. 62-66.
4 See Backhouse v Lambeth LBC (1972) 116 SJ 802.
5 A subsequent attempt by the GLC to reduce fares was upheld by the courts. This exercise
was, revealingly, known as the "balanced fares scheme" (proportional fares?). See R v
LTE, exparte GLC [1983] QB 962.
6 In Pickwell v Camden LBC [1983] QB 962, Ormrod LJ reminded us that the rationale of
the earliest local authority spending case, Roberts v Hopwood [1925] AC 578 was not, as
the headnote would make us believe, "unreasonableness" (before Wednesbury) but
"illegality" because of the authority's purporting to pay "wages" under the statute but
in effect paying a subsidy to employees. Note Lord Wilberforce's comment in Fares Fair
that whether the impugned action was submitted to the electorate makes no difference to
the question of legality as opposed to reasonableness: London Borough of Bromley v
GLC [1983] 1 AC 786.
articles Commonwealth Law Bulletin

Our argument comes into play when a public body acts under discretionary
powers. The constitutional doctrines of separation of powers and the rule of law
then insist that the discretion be exercised with fidelity to the objectives of the
conferred powers. They also presume that the discretion will be exercised in
accordance with those independent principles of justice that are appropriate for
judicial application in all other areas of the common law. In the interest of the
integrity of the law, these principles should now be clearly articulated by the
courts. 1

Code de procedure penale du Quebec:

English penal procedure-French style
By Jeanne Proulx, Legislative Drafter, Legislative Affairs Department, Ministry
of Justice, Quebec,
The National Assembly of Qu6bec enacted in December 1987, a very significant
statute in the field of penal law, the Code of Penal Procedure. This piece of
legislation represents more than a simple revision of the Summary Convictions
Act in force since 1922. It proposes a general reform of the procedure applicable
in respect of penal sanctions for offences under the Acts or regulations of Qu6bec.
Drafted in French and then translated into English, the law has been structured
so as to harmonise, as in a country with a unitary system, civil and penal rules of
procedure, derived from two different legal traditions. In the French-speaking part
of Canada, namely in Qu6bec, we have inherited both the French tradition
regarding private law and the British tradition with respect to public law and in
particular to penal law.
A person interested in comparative law will soon realise that the contents of
the Code are derived from the Code of Civil Procedure of Qu6bec and the
Criminal Code of Canada. He will also observe that the French propensity toward
codification highlights the fundamental principles of justice underlying criminal
procedure that are known and applied throughout the Commonwealth.
The Code contains fifteen chapters under five headings: general provisions
(chapter I), procedure relating to arrest, search and seizure (chapter II, III),
commencement of proceedings, trial and judgment (chapter IV, V, VI, VII),
appeal and revision of judgments (chapter VIII, IX, X, XI, XII and execution of
judgments (chapter XIII, XIV, XV).
First, as general provisions, the Code borrows from civil procedure the rules
for the computation of time, service of proceedings, the making of applications,
the summoning of witnesses before the courts and the appointment of commissions
for the examination of witnesses. Inspired by common law, it sets forth general
provisions respecting the jurisdiction of the courts, the prescription of offences
and the right to prosecute traditionally recognised as belonging to the Attorney-
General and to private citizens. It also incorporates into provincial penal procedure

1 The authors are indebted for advice on an earlier draft of this article to a number of
people, none of whom shares any responsibility for its defects. Particular thanks go to
Rodney Austin, Eric Barendt, David Edward, Roger Errera, Cyril Glasser, Malcolm
Grant, Stephen Guest, Bob Hepple, Martin Loughlin, Martin Matthews and Dawn Oliver.