Wednesbury

Editorial Committee of the Cambridge Law Journal
Wednesbury Unreasonableness: The Expanding Canvas

Author(s): G. L. Peiris
Source: The Cambridge Law Journal, Vol. 46, No. 1 (Mar., 1987), pp. 53-82
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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Cambridge Law Journal, 46(1), March 1987, pp. 53-82
Printed in Great Britain
WEDNESBURY UNREASONABLENESS: THE

EXPANDING CANVAS
G. L. Peiris*
I. Introduction
It is an essential aspect of the English legal tradition in public law

judiciai review should be based upon procedural standards.1
Brightman has recently insisted that judiciai review involves sim
appraisal ofthe manner in which an administrative decision is
However, judiciai attitudes during the last three years indic
changing philosophy which appears to admit of greater scop
substantive review. The principle which is referred to succin
modern law as Wednesbury unreasonableness3 has proved, in
hands of some contemporary judges, a uniquely effective instr
for the exercise of this extended jurisdiction. The central pr
posed by recent developments relates to the danger of a "sur
political process"4 which may erode the foundations of legis
supremacy and political responsibility. Unbridled judiciai rev
accordance with some emerging approaches, has basic implications
the future of the relationship between the administration an
courts.
The extended interpretation of Wednesbury unreasonable

modern law entails the crucial disadvantage of indetermin
judiciai policy, in so far as the courts would seem to be concern
an empirical examination of the justice of an administrative
rather than with the application of an indispensable norm
regulates the exercise of diseretionary public power. The e
norm which sustains judiciai review relates to the lega
administrative action but leaves intact, as a necessary prem
policy, the range of options available to the administrative
within the bounds of lawful action.5 Judiciai incursion into con
LL.B. (Ceylon),D.Phil.(Oxon.),Ph.D.(Sri Lanka); Professor of Law and Dean of the
Law in the University of Colombo, Sri Lanka; Distinguished Visiting Fellow of Christ
Cambridge, and Smuts Visiting Fellow in Commonwealth Studies in the University of
See, for a general discussion, J. Winkler, "The Political Economy of Administrative
in Adler and Asquith (eds.) Discretion and Welfare (1981).
Chief Constable ofthe North Wales Police v. Evans [1982] 1 W.L.R. 1155 at p. 1174
See n.ll, infra.
R. B. Stewart "Reformation of Administrative Law" (1975) 88 Harv. L.R. 1669.
H. W. R. Wade, Administrative Law (5th ed., 1982), p. 362.
53
54 The Cambridge Law Journal [1987]
these preferences, within the ambit of delegated power, strengthens

lingering doubts about the beneficial role of the courts in this area6 by
calling into question the objectivity of judicial review.7 On the
theoretical plane, involvement of the courts in the minutiae of
administrative adjudication is difficult to reconcile with the doctrine of
ultra vires, from which the rationale of review has ultimately to be
derived; for a decision tainted by Wednesbury unreasonableness is,
quintessentially, one arrived at in excess of conferred power.
Although there are tentative indications that a restrained approach
which is in part a reaction to preceding trends8 is asserting itself in the
most recent decisions,9 a series of dramatic cases'° serves as a focus of
conflict in regard to competing elements of social policy-a conflict
which pervades the whole spectrum of judicial review on the ground of
unreasonableness. There is, as well, the compelling objection that a
significant expansion of the controlling jurisdiction in the courts
accords inadequate weight to the specialised skills and expertise often
possessed by tribunals in particular fields and may endanger the
prestige enjoyed by the courts in the community at large by tending to
embroil judges in acrimonious and divisive political controversy.
II. THE TEST OF WEDNESBURY UNREASONABLENESS
Unreasonableness, as a ground of judicial review of administrative

decisions, is a comprehensive term which embraces a wide variety of
defects including misdirection, improper purpose, disregard of
relevant considerations and advertence to immaterial factors. In the
leading case of Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation" decided in 1948, Lord Greene M.R.
referred to the rubric of unreasonableness as "a general description of
the things that must not be done."'2
It is settled principle today, however, that judicial review for
unreasonableness is not restricted to situations in which a public
authority purports to make a decision which is not in accordance with
6 Sec A. C. Hutchinson, "The Rise and Ruse of Administrative Law and Scholarship" (1985) 48
M.L.R. 193: cf. R. M. Unger. "The Critical Legal Studies Movement" (1983) 96 Harv. L.Rev.
561.
7 0. Fiss, "Objectivity and Interpretation" (1982) Stan. L.Rev. 739 at p. 745.
8 See, e.g.. R. v. Secretary of State for Transport, ex p. Greater London Council 11985] 3 W.L.R.
574.
9 R. v. Secretary of State for the Environment, ex p. Nottinghamshire County Council [ 1986] A.C.
240 at pp. 250-251, per Lord Scarman: Re Westminster City Council 11986] 2 W.L.R. 807 at
p. 830, per Lord Tcmpleman; R. v. Secretary of State for Social Services, ex p. Association of
Metropolitan Authorities 119861 1 W.L.R. I at p. 6, per Webster J.
t0 R. v. Inland Revenue Commissioners, ex p. Preston 119851 A.C. 835: Wheeler v. Leicester City
Counci [ 19851 A.C. 1054: Gillick v. West Norfolk and Wisbech Area Health Authority 119861 A.C.
112.
119483 1 K.B. 223.
12 At p. 229.
C.L.J. Wednesbury Unreasonableness 55
the terms of the powers conferred on it and that, even i

the face of it fails within the letter of these powers,
successfully impugned if it is shown to be unreasonable,
sense. The essence of this broader criterion of unreasonableness is
contained in Lord Greene's observation that "there may be something
so absurd that no sensible person could ever dream that it lay within
the powers of the authority."13 It is no longer necessary to attack an
administrative decision on this ground by having recourse to the
principle of an inferred error of law attributable to the decision-
maker.M In 1984, Lord Diplock recognised that unreasonableness can
now stand on its own feet as an accepted ground of review.15 Although
the terminology applicable has not escaped criticism on the basis of its
inherent ambiguity,16 unreasonableness or irrationality is at present
accorded the status of a ground of review distinct from illegality (in the
sense that the decision-making authority has made an error of law, for
example, by purporting to exercise a power which it did not possess).17
The hallmark of the Wednesbury connotation of unreasonableness is
that the repository of a discretion, although acting within the four
corners of the legislative grant of discretion, has arrived at a decision
which is repugnant to all reason.
III. Limits of the Wednesbury Rule
A principle of judiciai intervention, so conceived, obviously

within it the risk of generating a clash of ideas, attitudes a
between the executive and the judiciai organs of government
development of the apparatus of review in keeping w
Wednesbury formula, the courts have been perennially con
this danger. Their preference for a stance of detachment
engendered by awareness of the pragmatic reality that th
equipped, institutionally as well as in terms of their train
experience, to weigh the merits of one solution of a practical qu
as against another.18 This limitation is aggravated by aspec
adversarial process, in that the kind of evidence which is ad
under established judiciai procedures and the manner in wh
required to be adduced tend to exclude from the court's at
competing policy considerations which call for compa
13 Ibid.
14 This was the disingenuous device suggested by Viscount Radcliffe in Edwards v. Bairstow [19561
A.C 14 (H.L.)
15 Council of Civil Service Unions v. Minister for the Civil Service (1985J A.C. 374 at p. 411 (H.L.)
16 Westminster Bank Ltd. v. Beverley B.C. [1971 j A.C. 508 at p. 530, per Lord Reid (H.L.)
17 A gratuitous invasion of private rights, insufficiently linked with a legitimate planning objective,
may be assailed on this ground: Mixnam's Properties Ltd. v. Chertsey U.D.C. (1965) A.C. 735:
Minister of Housing and Local Government v. Hartnell [1965] A.C. 1134.
18 Roberts v. Hopwood (1925] A.C. 578 at p. 606-607, per Lord Sumner (H.L.).
evaluation.19 Judges, accordingly, have shown great se

need for avoiding scrupulously even the suggestion
substance of discretionary power from its rightful do
The resulting spirit of self-restraint finds expressio
strictly controlled dimension of unreasonablene
against the likelihood of conflict. Throughout the rang
emerging from the decided cases is the recurring emp
of reasoning which seeks to proceed from "wrong"
can be accepted as sound.21 The gist of the Wednes
that the decision assailed must be not only wrong,
wrong, so wrong22 that no reasonable person could sen
This excludes from the ambit of review differences
kind which may well exist among reasonable perso
distinction, in regard to containing the Wednesbury
between a mistaken and an unreasonable exerci
Although an element of mala fides is not indispensable
impeached must contain some quality of perversity,26
caprice28 or absurdity29 which removes it from the
erroneous exercise of discretion. The courts, theref
pains to stress that, in the absence of anything ak
jurisdiction,30 the case for judicial intervention mu
even overwhelming.32
These circumspect judicial approaches to the app
Wednesbury test of review are much in evidence
spectrum of social policy.
(a) Education Policy

The non-interventionist attitude of the House of
Tameside case33 drew profoundly upon the inc
between the rival ideologies in regard to th
19 See n.15, supra.
20 See, for example, Diplock L.J. in Luby v. Newcastle-under-Lyme Corpor
pp. 75-76 (C.A.).
21 Secretary of State for Education and Science v. Tameside Metropolitan
pp. 1074-1075 per Lord Russell of Killowen (H.L.).
22 With regard to degrees of unreasonableness, see National Assistance Boa
Q.B. 648.
23 See the Tameside case, cited at n.21 supra, at p. 1025 per Lord Denning M.R. (C.A.).
24 Re W. (Anlnfant) [1971] A.C. 682 atp. 700, per Lord Hailsham ofSt. Marylebone L.C. (H.L.).
25 Clinch v. /.K.C. [1974] 1 Q.B. 76 at p. 61, per Ackner J.
26 Demetriades v. Glasgow Corporation [1951] 2 All E.R. 457 at p. 463.
27 Weinburger v. /ng/w [1919) A.C. 606.
28 R. v. Barnetand Camden Rent Tribunal, exp. Frey Jnvestments Ltd. [1972] 2 Q.B. 342.
29 Short v. Poo/e Corporation [1926] Ch. 66 at p. 91, per Warrington L.J.
30 Sm/r/i v. East Elloe R.D.C. [1956] A.C. 736 at p. 763, per Lord Reid (H.L.).
31 Secretary of State for Employment v. Associated Society for Locomotive Engineers and Firemen
[1972] 2 Q.B. 455 at p. 511,per Roskill L.J. (C.A.).
32 See n.30, supra.
33 Secretary of State for Education and Science v. Tameside Metropolitan B.C. [1977] A.C. 1014.
comprehensive and grammar school systems, e

capable of impeccable support on the basis of educa
The cardinal element which shines through the spe
of Lords is disinclination to assess the compara
conflicting edjicational principles and to base a judicia
preferred theory. The issues involved in the c
necessary a consideration of the balance of inconv
adoption of each of the courses of action favoured re
borough council and by the Secretary of State inevita
measure of difficulty in the circumstanees. The facto
emphasis was that the dislocation caused by discard
transition needed to be weighed in the balance against
which would be the probable result of implementin
within a brief time-span.34 The speeches indicate a
compelling arguments on the two sides which militat
dismissal of either point of view as demonstrably
The judicial withdrawal which the decision repr
on recognition that the subject matter involves, typi
of subjective preferences and assessments, the val
entirely beyond the pale of Wednesbury unreasona
school of thought may well claim, with sincerity of
other side is acting erroneously35 or is wrong36 o
wrong,37 the refusal of the courts to intervene was fi
impracticability of asserting that no reasonable loc
informing itself of the proper considerations and wi
of its responsibility, could conceivably have made
appealed to the respondent borough council as th
escape from a potential impasse. This decision
reminder of the appropriate limits of judicial review
Wednesbury test.
(b) Retrenchment of Labour

A similar spirit of judicial self-restraint is char
decision ofthe Court of Appeal in /?. v. Hertfordshir
ex p. National Union of Public Employees.38
The Court of Appeal, conscious of the multi
available to the council for distributing its economies
expenditures on capital items, maintenance, w
adopted the attitude that to require the council to
34 Ibid, at p. 1061, per Viscount Dilhorne.

35 Ibid., at p. 1026, per Lord Denning M.R. (C.A.).
36 Ibid., at p. 1074,per Lord Russell.
37 Ibid., at p. 1035, per Geoffrey Lane L.J. (C.A.).
38 [1985] I.R.L.R. 258 (C.A.).
of them, and also to demonstrate that each option had

appraisal, on pain of having the ultimate decision decla
would paralyse local government by extending t
principle far beyond its legitimate limits.39 Havin
necessity for the council, in a situation which it had p
to cover extensive ground within a restricted p
recognised that the core of the decision-making pro
identification of the most practical alternatives. Of pa
in relation to the object of containing the judiciai role,
by Mustill J.: "The Wednesbury line of authority is co
overlooking of some consideration which, when we
relevant factors, is at least potentially decisive: a consi
more, which is of such obvious materiality that to d
properly be regarded as unfair."40 The implie
essentiality of relevant considerations provides a sa
enables the courts to remain aloof in the absence of substantial
injustice. The chief features of the decision are a healthy respect for
the legislative allocation of responsibility and insistence upon the
narrow confines within which judiciai interference with the exercise of
options committed to administrative judgment is acceptable.
(c) Industrial Arbitration

Some significant insights into modern judiciai predilections are
offered by recent judgments interpreting the role of a body charged by
statute41 with the general duty of promoting the improvement of
industrial relations.42 The Advisory, Conciliation and Arbitration
Service (ACAS) had the legal validity of its exercise of judgment in
regard to an industrial matter questioned in judiciai review
proceedings in United Kingdom Association of Professional Engineers
v. Advisory, Conciliation and Arbitration Service.43 The problem
related to the claim of a trade union for recognition. ACAS, in setting
out its findings as required by the governing legislation,44 rejected the
claim of the applicant union on the basis that recognition,
incompatible as it was with existing collective bargaining arrangements
(which were likely to be fragmented by the admission of a new union),
encountered the vehement opposition of established unions, so that
industrial action in some sectors would be the probable outcome ofthe
grant of recognition.
Ibid., atp. 262.

Ibid; cf. Donaldson M.R. at p. 260.
Employment Protection Act, 1975.
S.l(2).
(1981] A.C. 424.
Employment Protection Act 1975, s.!2(4).
A declaration of nullity of the finding by ACAS was granted at first

instance by May J., who was satisfied that an error of law in regard to
construction of the policy reflected in the legislation and, in particular,
the duties imposed on ACAS vitiated the determination by that body.
The primary fault, in the opinion of May J., lay in the lack of a sense of
balance, in that ACAS allowed itself to be influenced unduly by one
relevant consideration-promoting the improvement of existing
voluntary relations-to the extent of relegating, with inadequate
justification, the equally vital aspect of stimulating the extension of
collective bargaining.45
The House of Lords found the approach of May J. wholly
misconceived. The speech of Lord Scarman underscores the strictly
limited range of judicial review, directed as it is to the patent illegality
as opposed to the soundness of a decision involving choices and
priorities which are matters of discretion entrusted by the applicable
legislation to the administrative tribunal.46 The tenor of this speech
concedes that the interlocking strands of industrial policy, their
respective nuances and weight, and the bearing of one aspect on
another are matters in regard to which differences of opinion are
natural and that these considerations, quite decidedly, are for the
administrative body rather than for the courts to consider in arriving at
a decision which appears balanced and cohesive to the body which
functions as the delegate of the legislature. The House, astute to
contain the Wednesbury principle within its allocated compass, saw no
merit in the contention that no reasonable statutory body, situated as
ACAS was, could on the material available to it have reached plausibly
the decision which ACAS made. No other view, it is submitted, would
have done justice to the range of policy options which must be open to
the statutory body as an essential condition for the effective discharge
of its functions in a diversity of factual contexts.
(d) Environmental Planning

The need to disavow a judicial policy which draws too tightly the
bounds within which a local planning authority may exercise statutory
discretion was recognised, by implication, by the House of Lords in
Fawcett Properties Ltd. v. Buckingham County Council.47 In
pursuance of a power conferred on it by planning Iegislation48 to grant
authority for the development of land subject to such conditions as it
deemed desirable, a local planning authority gave the appellant's
predecessor in title permission to build two cottages on his land,
Both objectives were identified as statutory imperatives: see s.4.

[6 19811 A.C. 424 at pp. 442. 445.
47 119611 A.C. 636.
48 Town and Country Planning Act 1947, s. 14.
subject to the condition that the occupation of th

limited to persons whose employment was in agricu
defined in planning law,49 and to their dependants.
In this case the basis of the challenge against a li
imposed by a planning authority was that the cat
failing within the ambit of the limiting condit
occupation of the two cottages was conceived of, in
definition of agriculture extracted from the plan
comprehensive terms that the condition, althou
unrelated to any planning considerations, neverthel
no fair or reasonable relation to any planning policy. I
on this footing, that the condition sought to be imp
the powers ofthe planning authority and attracted rev
in terms ofthe limited jurisdiction established by the
This argument had little appeal to the House of Lor
Avonholm, reacting sympathetically to the planning a
dissuade in the area development unconnected with the
adjacent land for agricultural or allied purposes, had n
planning authority's policy of protecting the
intrinsically invulnerable in relation to the Wednes
judiciai review, and also that indicia linked with
employment of the occupier provided reasona
implementing the chosen policy.50 Clearly indicati
which was regarded as suitable, in the construc
planning powers, was the focus on a broad relation
overall policy object and the instrument select
attainment, without meticulous examination of imp
in which the terms of the limiting condition might n
promoting the underlying purpose because of an un
of circumstances.51
Equally, the courts have insisted that, where alter
powers of control over development of land are av
authority, one providing for payment of compensat
not, the authority's preference for the procedure whi
the obligation to compensate is not amenable to ju
recourse to the Wednesbury rule.52 This is based o
rationale that, in the absence of any curtailment o
choice enjoined by the legislation on the donee ofth
49 W.,s.ll9(l).
50 [1961] A.C. 636 atp. 675.
51 Ibid.
52 Hoveringham Gravets Ltd. v. Secretary of State for the Environment [1975] 1 Q.B. 754 at p. 764,
per Orr L.J; c/. at p. 771, per Scarman LJ. (C.A.).
an oblique restriction as a matter of judicial

impermissible.53
(e) Differential Rents

In the context of legislation empowering a local au
to tenants of houses provided by the local authority
rent, subject to suitable terms and conditions, as th
fit,54 the courts have implacably refused to adjudica
of reasonableness, upon the propriety of the local au
to grant or withhold the benefit of differential rent
exercise of discretion in regard to determination
structure involves, at bottom, the application of soc
deficit in the housing revenue account has to be m
general rate fund, so that inherent in the de
availability of differential rents is the weighing of in
a class and of individual indigent tenants against
general body of ratepayers. Since the introd
assistance, there is the further choice as to whe
impoverished tenant should be assisted at th
ratepayers by way of a reduction in rent or, in the
general body of taxpayers in the form of national a
considerations by reference to which these m
determined are not beyond the pale of justiciability,5
by its very nature, the variety of policy opt
circumstanees is such as to generate a substantial
This reality has, quite properly, inhibited the cou
liberal play with the Wednesbury formula in exe
over the use, by local authorities, of discretion assig
established view is that the statutory schem
authorities entitlement to operate a differential ren
they be inclined to do so, but that the courts will se
to resort to such a structure because of the exige
case, provided that the authority in question has
good faith after taking into account all material cir
53 Westminster Bank Ltd. v. Beverley B.C. [1971 j A.C. 508 at p. 530

54 Housing Act 1957, s.l 11(3).
55 Belcher v. Reading Corporation [1950] Ch. 380.
56 See, for an emphatic expression of this view, Diplock L.J. in Lub
Corporation [1964) 2 Q.B. 64 at pp. 75-76.
57 Smith v. Cardiff Corporation (No. 2) [1955] Ch. 159; Summerfield
W.L.R. 167.
IV. Extension of the Scope of Review
The straws are in the wind, and these restrained judiciai att
appear to be on the verge of a dramatic transformation. Incr
boldness in subjecting to scrutiny the substantive co
administrative decisions is a feature of the current renaissance of
administrative law. The results of this development are sometimes
disquieting, and the methods of reasoning used by the courts are not
always of impeccable validity. It is worth examining the major
conceptual levers which judges have deployed in recent years in their
strenuous efforts to extend the borders of their jurisdiction.
(a) Fiduciary Duty

An extended application of this concept in a public law setting has
exposed flexibly to judiciai review controversial policy-oriented
decisions of public authorities.
The high-water mark of judiciai activism in this area is probably
represented by the decision of the House of Lords in Bromley London
Borough Council v. Greater London Council.5* The Greater London
Council issued a precept to all London boroughs to levy a
supplementary rate of 6.1 pence in the pound to enable the G.L.C. to
finance by grant to the London Transport Executive the cost of
reducing L.T.E. bus and tube fares by 25%. The application by the
London Borough of Bromley for judiciai review by way of certiorari
was successful in the Court of Appeal and the House of Lords, and the
precept was quashed as having no legal effect.
It was apparent that the statutory power conferred on the G.L.C.
to make grants to the L.T.E. was wide enough in scope to embrace
grants to revenue as well as for capital purposes.59 Nevertheless the
House of Lords, by a process of reasoning the strength of which at
several points is far from self-evident, reached the conclusion that the
decision by the G.L.C. exceeded the limits of its statutory power.
Adopting an exceedingly stringent approach to the construction of the
relevant legislative powers, Lord Diplock laid stress on the legal
structure of the G.L.C., the sources from which it derived its funds and
the categories of persons to whom it owed duties,60 while Lord
Scarman was guided by the legislative history of the transport
authority for Greater London61 and even invoked, by way of analogy,
comparable arrangements applicable to British Rail.62 The effect of
this exercise was to focus on the vires of the G.L.C. in making, in
58 [1983)1 A.C. 768 (H.L.).
59 See Transport (London) Act 1969, s.3, which refers to "any purpose."
60 [1983] 1 A.C. 768 at pp. 827-829.
6' Ibid., atpp. 839-840.
62 Ibid.
effect, a transfer from central government to l

funding, in the light of definite knowledge possessed
the time that its decision to subsidise transport from
by rates would entail forfeiture of grants from ce
sources.63
The gist of the reasoning contained in the speeches in the House of
Lords is that a policy calculated to achieve this result was
fundamentally incompatible with the essential statutory function of
the G.L.C. The concept of a fiduciary duty64 devolving on the G.L.C.
is the sheet-anchor of the argument. Judicial intervention was
predicated on the premise that the G.L.C.'s failure to conserve its
resourees by forestalling the loss of central government revenue and
the L.T.E.'s failure to avoid a deficit in the management of its
transport services amounted to a jettisoning of sound business
principles, fidelity to which was a necessary ingredient of the fiduciary
duty owed to ratepayers.65 While it was accepted that,
notwithstanding the obligations in regard to financial planning and
advance budgeting imposed by statute on the L.T.E.,66 deficit
financing did not necessarily transgress the vires of the L.T.E., the
vitiating factor, in the opinion of the House of Lords, was the
reduction of transport fares, by a definite proportion across the board,
not because of the perception that a higher fare had ceased to be
commercially feasible but in the implementation of a social policy
espoused by the G.L.C. and the L.T.E. It was this aspect of the
decision, resulting in a substantial sacrifice of one group of interests to
another, that was considered altogether inconsistent with the fiduciary
duty imputable to the G.L.C.
Ostensibly in accordance with the statutory regime applicable67 the
G.L.C., as a matter of civic policy, had purported to determine in what
proportions the revenue required by the L.T.E. to conduct its
passenger transport services should be obtained, respectively, from
fares paid by passengers and by grants made by the G.L.C. to the
L.T.E. at the expense of the ratepayers of the Greater London area;
and it was this policy determination, reflecting the priorities decided
upon by the elected authority, that was struck down by the courts. It is
a decision in the light of which the traditional insistence by the courts
that "the larger the policy content and the more the decision-making is
within the customary sphere of elected representatives the less
well-equipped the courts are to weigh the considerations involved and
Ibid., at p. 830, per Lord Diplock.

Ibid.. at p. 839, per Lord Scarman.
Ibid., at p. 831, per Lord Keith of Kinkel.
Transport (London) Act 1969, s.7(3).
Transport (London) Act 1969, see particularly ss.1-7 and 11.
the less inclined they must be to intervene,"68 an

disclaimer that the wisdom, expediency and merits
justiciable in judiciai review proceedings,69 sound s
This reservation regarding the trend of the ruling
the circumstance that the G.L.C.'s decision to issue t
was a necessary step in the reduction of bus and tube
to a policy objective which had been prominently in
election manifesto of the party gaining control of t
consideration did not prevail against the opposing fact
House of Lords was inclined to give paramountc
thought it "entirely wrong"70 for an eleeted majo
conclusive, in respect of a policy option, an undert
an election manifesto. This observation, which ha
Lord Wilberforce in the Bromley case,71 is in
expressed by Lord Atkinson half a century ago.72 O
in the Tameside case,73 the ability of the group in pow
council to have their policy favouring retention of
endorsed by the majority of the electorate weighed sig
the House of Lords in considering that the degr
inevitably attendant on abandoning the previously c
to the comprehensive system was insufficient to ju
regard to unreasonableness, in the Wednesbury
electorate was deemed to have approved of the
despite the difficulties foreseen. It is plain that value-
courts under the umbrella of unreasonableness, in
policy where lively disagreement prevails in the com
are hardly conducive to distancing the courts from th
political controversy.
The concept of fiduciary duty, which was skilfully
Bromley case as a bridgehead for judiciai interven
antecedents. In Roberts v. Hopwood,74 a case decide
Lords in 1925, the question was whether a decision
council to pay its employees a minimum wage which t
a marked decline in the cost of living during the pr
which was unrelated to prevailing trade union rate
current payments by other local authorities for equ
been arrived at in excess of the statutory power con
68 CREEDNZInc. v. Govemor-General\m\}! N.Z.L.R. 172 atp. 198 per

N.Z.).
69 Fawcett Properties Ltd. v. Buckingham C.C. |1961 j A.C. 636 at 685, p
70 (1983] 1 A.C. 768 atp. 853.
71 Ibid., atp. 815.
72 tfo&ertt v. Hopwood | 1925] A.C. 578 at p. 596: cf. Lord Sumner at p. 60
p. 613.
73 See n.21,swpra.
74 [1925] A.C. 578.
the relevant legislation purported to empower metropolitan borough

councils to employ servants and to determine the scale of their
remuneration at the seemingly unfettered discretion of the councils
themselves75 Lord Wrenbury, invoking a principle corresponding to
the Wednesbury limitation on the ambit of discretionary power,
insisted that the repository of discretion must "ascertain and follow the
course which reason directs."76 The House of Lords decided that the
council's determination of the level of wages was capable of being
impeached since it proceeded on the basis of an inflexible
standardisation of remuneration for men and women, on the footing
that a uniform wage should be paid to all adults-a course which met
with the judicial criticism that the consequent determination had been
made without reference to the objective value of the services
performed and the purchasing power of the sums paid.77 The
conclusion that the remuneration so computed subsumed an element
of gift was supported on the basis that the councillors, standing
"somewhat in the position of trustees or managers of the property of
others"78 owed to the persons from whom the council's funds were
derived a duty to administer the affairs of the council "in a fairly
businesslike manner."79
This idea, closely akin to the notion of a fiduciary relationship
between a public authority and its ratepayers, was the foundation of
the decision by the Court of Appeal in Prescott v. Birmingham
Corporation.80 The Corporation operated a transport undertaking
under statutory powers which authorised the charging of such fares as
the corporation thought fit and, indeed, made explicit provision that
any shortfall in the revenue of the enterprise should be met by funds
derived from rates. The Court of Appeal rejected as ultra vires a
scheme conceived by the corporation, at a cost to be defrayed in full
out of rates, for the provision of facilities for free travel to old people.
Jenkins L.J., while envisaging that some element of subsidy might be
permissible in the interest of providing a viable service at competitive
rates, uncompromisingly asserted that the corporation had violated its
fiduciary duty to its ratepayers when it resolved to "go out of (its) way
to make losses by giving away rights of free travel."81
Changing conceptions of social policy have brought about the
statutory negation of the actual decision in Prescott, but the basic
premise of the reasoning was considered by the House of Lords in the
75 Metropolis Management Act 1855, s.62.

76 [19251 A.C. 578 at p. 613.
77 Ibid., at p. 590, per Lord Buckmaster.
78 Ibid., at p. 596, per Lord Atkinson.
79 Ibid., at p. 595, per Lord Atkinson.
80 119551 Ch. 210.
81 Ibid., at p. 236.
Bromley case to retain its validity at the present day

use in a public law context of the concept of fiduciary
origin in principles of equity operative in private law,
for augmenting the purview of Wednesbury unre
unsatisfactory implications for demarcation of the sph
and judiciai responsibility.
Application of the principle which finds exp
Wednesbury test in situations involving a confiict of i
a familiar phenomenon. Thus, the erection of a high fe
a landowner's right to light, for the purpose of provid
pedestrians on a public thoroughfare, has been
unreasonable interference with rights accompanyi
land.83 The underlying principle is that an equilibrium
between the interest of the individual landowner and the collective
interest of the community.84 These, however, are situations involving
the protection of proprietary rights threatened with erosion in
consequence of action which a local authority is minded to take in the
public interest. The use of fiduciary obligation as a basis for judiciai
interference with the civic policy adopted by a public authority, within
its proper sphere, for regulating competing financial interests of
different groups in the community in relation to the maintenance of
essential public services represents a drastic expansion of the scope of
review which defies the postulate that "it is the competent authority
that is selected by Parliament to come to the decision and, if that
decision is come to in good faith, the court has no power to
interfere."85 The threat to widespread acceptance of judiciai
objectivity and impartiality, which the current policy disconcertingly
entails, impairs its value in considerable measure.
(b) Legitimate Expectation

Lord Scarman has recently observed that "the doctrine of
legitimate expectation has an important place in the developing law of
judiciai review."86 However, the use of this concept as a lever for
expanding the range of judiciai review on the basis of the Wednesbury
principle is a somewhat unexpected twist in the skein.
Despite the suggestion that the idea of legitimate expectation lends
82 (1983] 1 A.C. 768 at pp. 831-832, per Lord Keith of Kinkel.

83 Dormer v. Newcastle-upon-Tyne Corporation {1940] 2 K.B. 204 at p. 217.
84 Westminster Corporation v. London and North Western Railway [1905] A.C. 426 at p. 433, per
Lord Macnaghten.
85 Point ofAyr Collieries Ltd. v. Lloyd George [1943] 2 All E.R. 546 at p. 547, per Lord Greene
M.R.; cf. Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 at p. 564, per Lord
Greene M.R.
86 In re Findlay (1985] A.C. 318 at p. 338 (H.L.).
itself to development as an aspect of natural justice,87

emerging principle are now demarcated with modera
settled law that, even where a person claiming s
privilege has no legal right to it, as a matter of private
notwithstanding that the advantage contemplated c
private law rights, he may have a legitimate expecta
the benefit or privilege, in which event the courts
expectation by judicial review within the public
However, it has been considered essential, in the intere
a realistic balance between effectiveness of administr
for the individual, that judicial review for denial o
expectation should be confined to cases where the
been deprived of some benefit which either (i) he had i
permitted by the decision-maker to enjoy and w
legitimately expect to be permitted to continue to d
been communicated to him some material grounds for
on which he had been given an opportunity to commen
received assurance from the decision-maker would not be withdrawn
without giving him first an opportunity of advancing reasons fo
contending that it should not be withdrawn.89
The basis of the expectation in the first case is the adoption of
consistent practice over a sufficiently long period to justify
anticipation, in all the circumstanees, that the practice would continue
to be followed in the future. The Council of Civil Service Unions case90
offers a typical illustration. Against a background which admitted o
no doubt that, ever since G.C.H.Q. was established in 1947, prior
consultation had been the invariable rule when it was proposed tha
conditions of service relating to civil servants engaged in its wor
should be altered significantly, Lord Fraser of Tullybelton wa
satisfied that, had there been no question of national security involved
the civil servants would have had a legitimate expectation that th
Minister would consult them before issuing instructions whic
crucially transformed the terms of their employment.91
The second limb of the evolving principle has its proper application
in circumstanees where the expectation is frustrated by the breach of
representation on which reliance is reasonably placed. This i
exemplified by Attorney-General ofHong Kong v. Ng Yuen Shin.92 I
this case the applicant's expectation of the benefit of a hearing wa
Council of Civil Service Unions v. Minister for the Civil Service [1985J A.C. 374 at p. 415, per Lo
Roskill (H.L).
O'Reilly v. Mackman [1983] 2 A.C. 237 (H.L.).
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 318 at pp. 408-409, p
Lord Diplock (H.L.)
Ibid.
[1985] A.C. 318 at pp. 400-401.
[1983] 2 A.C. 629.
68 The Cambridge Law Journal [19871
founded upon an undertaking, expressly given on behalf of the

government of Hong Kong, that certain categories of illegal
immigrants would be entitled to make representations to the
immigrant authorities before orders were made for their deportation
from the colony.
In this area, too, the parameters of judicial review have expanded
recently. The remarkable feature of the decision of the Queen's Bench
Division in R. v. Secretary of Statefor Transport, exp. Greater London
Council93 is that judicial review, predicated on Wednesbury
unreasonableness, was exercised in a situation where the expectation
which the applicant for relief purported to entertain was not forfeited
by either of the principles of sustained practice or unequivocal
representation. The dispute which culminated in litigation had its
origin in the provisions94 of the London Regional Transport Act 1984,
which transferred control of the London Transport Executive, the
body responsible for running London transport services, from the
Greater London Council to the Secretary of State for Transport,
renaming it London Regional Transport. In pursuance of this
legislation the Secretary of State issued a direction requiring the
Greater London Council to pay London Regional Transport by
instalments the maximum sum which the statute prescribed, by way of
grant for the remainder of the initial financial year. The governing
legislation contained no requirement, express or implied, in regard to
consultation between the Secretary of State and the Greater London
Council before a direction in these terms could lawfully be issued.
Nevertheless, the Queen's Bench held that the G.L.C. had a
legitimate expectation of being consulted in respect of the quantum of
the contribution which it was required to make. McNeill J. reasoned as
follows: "Parliament had legislated for a maximum payment in th
initial year. That assumes that less than the maximum could b
directed. Whichever phrase be used-duty to act fairly, legitimate
expectation, a right to be heard-it seems to me that natural justice
entitles the payer at least to make representations to the effect that he
should not pay the maximum, but some lesser sum."95
Clearly, there are far-reaching implications for public
administration in general if extended recourse in this form is had to the
principle of legitimate expectation so as to secure the result that any
person or body called upon to make a payment, authorised by statut
on a graduated scale entailing an element of discretion has the right to
make representations to the person in whom the discretion is vested
regarding the quantum of the payment that is proper in the
93 119861Q.B. 556.
94 S.49.
95 119861 Q.B. 556 at p. 587.
circumstanees. Not only is the wide sweep of a com

to consult, conceived in these all-embracing terms,
regular rule in the pre-existing law, but previous
reluctance to fetter administrative discretion to the
this development.
Re Findlay96 typifying a less intrusive approac
concerns the power of the Secretary of State to ad
policy regulating the exercise of his discretion t
convicted prisoners. The empowering legislat
Secretary of State, if he saw fit, to consult the p
formulating new policy but did not require h
construing a permissive statutory power, th
emphatically declined to imply a mandatory requir
consultation with the parole board as a precondit
changes in the parole system effected by the Secreta
Secretary of State, in basing his decision on such
policy as factors of deterrence, retribution and publi
administration of criminal justice, which he had assessed
independently of the board, was considered by the House of Lords not
to have acted unreasonably.99 Although the circumstanees of the
Findlay and G.L.C. cases are not in pari materia, in so far as it is
inherent in the subject matter with which the Secretary of State dealt in
the former case that the participation of the board, even though it
could be expected to be useful, was not indispensable in evaluating the
factors on which the contemplated changes of policy depended, it is
significant that in none of the speeches in the House of Lords was there
shown the slightest inclination to curtail the responsibility allocated by
statute to the Secretary of State, by compelling consultation with the
board. A stark contrast in judicial attitude is signified by the judgment
of McNeill J. in the G.L.C. case, where a bold application of the
principle of legitimate expectation, in a context which plainly fails
outside the purview of established lines of authority, controversially
extends the scope of judicial review of an executive discretion on the
ground of unreasonableness.
A redeeming feature of the evolving law is the indication of
contemporary judicial awareness of the dangers attendant on too
intrusive an interpretation of the idea of legitimate expectation. It has
been recognised that exigencies of a political nature may, in
appropriate circumstanees, require drastic curtailment of the
legitimate expectation to be consulted. Reasonableness of restrictions
"* [1985] A.C. 318.

97 Criminal Justice Act 1967. s.59(3)(c).
48 11985] A.C. 318 at pp. 333-334, per Lord Scarman.
99 Ibid.
in regard to the nature of the representations that m

and the period within which they are required t
substantial extent a question of context.1 Moreove
resolved to resist extension of the doctrine to em
arising from the mere scale of the implications of pa
This inhibition is the product of consciousness th
consultation were to be entirely open-ended, the p
public authorities would be to opt for safety and
expense of efficient conduct of public business, a dut
in all circumstances admitting of doubt.2
(c) Estoppel
A principle analogous to estoppel is beginning
index of applicability of the Wednesbury rule.
The setting in which the House of Lords has rec
method of distending the scope of administrative
concerns a representation by the lnland Re
discontinuance of an inquiry in consideration of waiv
benefits claimed by the assessee. In R. v. lnland Revenue
Commissioners, ex p. Preston3 in response to a statement by an
official of the lnland Revenue that he did not intend to proceed with
his investigation if the taxpayer abandoned certain claims for interest
relief and capital loss, the latter withdrew the claims and paid capital
gains tax on a transaction which the official had been examining.
However, as a sequel to the receipt of new information relating to this
transaction, the lnland Revenue Commissioners, having concluded
that the taxpayer had received from the transaction a benefit which
was liable to taxation, issued the taxpayer with a request for further
particulars and in due course gave him formal notification initiating the
statutory procedure4 for cancellation of a tax advantage. By the time
this development took place, a statutory time-bar prevented the
taxpayer from making good his claim for relief in respect of capital
gains tax on the sale price of the shares in question, and he argued,
accordingly, that the correspondence containing the conditional offer
by the Revenue as to termination of the pending investigation
constituted a binding legal agreement which estopped the Revenue
from raising inquiries on any matters covered by the correspondence.
The basic issue in the judiciai review proceedings instituted by the
assessee was whether the conduct of the Revenue was characterised by
R. v. Secretary of State for Social Services, exp. Association of Metropolitan Authorities [1986] 1
W.L.R. 1.
Re Westminster City Council [1986] 2 W.L.R. 807 at pp. 822-823, per Lord Bridge.
[1985] A.C. 835 (H.L.).
Income and Corporation Taxes Act 1970, s.460.
any element of unreasonableness which warranted judicial

intervention. The Court of Appeal set aside the order of Woolf J.
making a declaration that the action ofthe Revenue was unlawful. The
leading judgment of Lawton L.J. in the Court of Appeal approached
the problem5 from the standpoint of two considerations: whether the
preceding sequence of events reflected in the correspondence between
the Revenue and the taxpayer amounted to a relevant factor which the
Revenue authorities had failed to take into account in resolving to
repudiate the concession which they had already made, and whether
this decision contravened the duty of fairness vis-a-vis a taxpayer
which devolved on the Revenue.6 On either basis, it was assumed,
conduct vitiated by unreasonableness of a kind which rendered the
Wednesbury principle applicable was capable of being established.
However, the Court of Appeal was satisfied that an abuse of power on
either of these grounds had not been made out in that, having regard to
the taxpayer's failure to make as complete and as candid a disclosure as
he ought to have done during his correspondence on the material
question with the Revenue, the decision by the Commissioners was not
unreasonable.7
In the House of Lords, although the decision of the Court of
Appeal was upheld, the speech of Lord Templeman proceeded on
significantly different lines. Instead of using the exclusion of a relevant
factor and the obligation of procedural fairness as a yardstick of
reasonableness in the exercise of a managerial power, Lord
Templeman explicitly acknowledged that conduct equivalent to a
breach of contract or breach of representation could, per se, be
indicative of unreasonableness in the degree postulated by the
Wednesbury test.8 Subject to the qualification that relief may be
withheld in an appropriate case in the exercise of judicial discretion,
Lord Templeman declared: "I consider that the appellant is entitled to
relief by way of judicial review for 'unfairness' amounting to abuse of
power if the Commissioners have been guilty of conduct equivalent to
a breach of contract or breach of representations on their part."9
The point of departure typifying the major speech in the House of
Lords in this case crucially affects the ambit of unreasonableness as a
basis of judicial review. The recognition that incompatibility of a
course of conduct with settled expectations, arising from
representations intended to be seriously received and in fact acted
upon, has intrinsic importance in relation to the incidence of
[1985] A.C. 840 al pp. 844-846.
See, on this point, R. v. lnland Revenue Commissioners, ex p. National Federation of
Self-Employed and Small Businesses Ltd. [1982J A.C. 617 at p. 652, per Lord Scarman (H.L.).
[1985] A.C. 835 at pp. 866-867.
Ibid., alpp. 866-867.
Ibid., at p. 867.
unreasonableness, and reduces appreciably the lati

orthodox tests governing the duty to advert to relevan
and to act fairly. The premise of Lord Templeman's sp
made necessary a meticulous examination of th
surrounding the correspondence with a view to asce
the terms of the undertaking by the Revenue
inconsistency with their subsequent action. It was only
ambiguous and evasive nature of some ofthe taxpaye
regard to the transaction which was the subject of scr
which precluded full realisation by the Revenue of
the transaction, that an estoppel operating against
excluded.,0 The tenor of Lord Templeman's speech s
for this lack of frankness regarding a matter as to wh
was entitled to expect candour, the inhibitory
representation made on behalf of the Revenue migh
decisive.
(d) Disregard of Relevant Considerations

A distinct broadening of this rubric of review has served in recent
years as an instrument for expansion of the area of administrative
unreasonableness. Contemporary developments in this field represent
a marked departure from previous approaches, conspicuous for their
restraint, which are now being gradually supplanted.
Judiciai caution, in the setting of review on the basis that a material
consideration has not been taken into account by the decision maker,
underpins emphasis on the principle that:
It is only when the statute expressly or impliedly identifies

considerations required to be taken into account by the authority
as a matter of legal obligation that the court holds a decision
invalid. . . . It is not enough that a consideration is one that may
properly be taken into account, nor even that it is one which many
people, including the court itself would have taken into account if
they had to make the decision.
This distinction between obligatory considerations and permissible

considerations within the range of relevant factors has been drawn
prominently as a means of protecting legitimate administrative
autonomy by restricting judiciai intervention to cases of disregard of
elements encompassed by the first category.12
Furthermore, in their approach to judiciai review in practice, the
courts have been keenly alive to the need for pragmatism in
10 Ibid.
11 CREEDNZ Inc. v. Governor-General [1981] 1 N.Z.L.R. 172 at p. 183, per Cooke J. (C.A. of
N.Z.).
12 Ashby v. Minister of Immigration \\981\ 1 N.Z.L.R. 222 at p. 224, per Cooke J. (C.A. of N.Z.).
administrative decision making, especially in

immigration which impinge on foreign policy. T
Zealand have declined to interfere with the exercise of executive
discretion, founded on a consideration of the statutory criteria,13
regard to the issue of temporary entry permits to members of th
Springbok rugby team. In particular, the court found itself unable to
accept the contention that the Minister, in exercising his discretion in
the matter, was bound to be guided by the provisions ofthe Gleneagles
Agreement. The primary reason for the inhibition felt by the court wa
its conviction that, in sensitive sectors of foreign policy, the content
the national interest did not admit of the isolation of particular stran
and their elevation into obligatory conditions which prevail necessarily
over countervailing elements.14
But there are indications that this mood of circumspection can no
longer be taken for granted. Judges, for the moment not infrequentl
in strident dissents, tend to question the propriety of a detached stan
in the contemporary context. Encouraged by growing judicia
readiness to acknowledge the relevance of international obligations
the construction of legislation and in the exercise of discretionar
administrative power,15 Lord Scarman has pointed out that there a
many contexts in which national commitments undertaken in terms o
the Charter of the United Nations, particularly in regard to the
disavowal of discrimination on unacceptable grounds, must have a
important bearing on the use of legislative authority.16 Similarly, Lor
Denning M.R. has not been averse to recognition of a duty to take into
account the provisions of the European Convention on Human Righ
and Fundamental Freedoms17 in interpreting the scope of power
conferred by statutes which have been enacted since the ratification o
the Convention by the United Kingdom.18 The effect of these trends
to reinforce a more aggressive judicial role which no longer look
askance at stricter control of executive discretion. A distended
application of the principle of advertence to relevant consider
which is increasingly called in aid in situations that really in
competing priorities of social policy, would appear to be servi
courts well in carving out for themselves a strikingly larger a
jurisidiction.
The intensity of interventionist judicial attitudes is underlined by
the willingness of the courts today to impugn administrative decisions
13 Immigration Act 1964. s.14 (N.Z.).

14 See Ashby v. Minister of Immigration, n.12, supra at p. Iii, per Richardson J.
15 Saloman v. Customs and Excise Commissioners [ 1967] 2 Q.B. 116 at p. 143, per Diplock L.J.: cf.
Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740.
16 Ahmad v. Inner London Education Authority [1978] 1 Q.B. 36 at p. 48.
17 Cmnd. 8969 (1953).
18 R. v. Secretary of State for the Home Department, exp. Bhajan Singh [1976] 1 Q.B. 198 at p. 207.
on the basis of unreasonableness not only in circum

material factor has been excluded from considerat
where the wrong degree of weight has been accor
element of the decision. In a situation where a pla
treated a previous planning permission which had long
"a vitally material consideration," the courts have
vitiate the decision as wrong in law on the ground tha
and excessive importance had been ascribed to a con
though its relevance was indisputable.19 A pre-exist
relevant as an aspect of the planning history of t
existence of such permission at some time in the past
taken into account by the planning authority in
achieving consistency with earlier decisions in regar
the court did not shrink from assailing preoccupation
on the part of the planning authority as symptomatic o
even of perverse conduct,20 the Wednesbury rule b
either finding. It is evident that so expansive an ap
review gives short shrift to the accepted norm that the
to be given to a relevant consideration is a matter
making authority.
V. The Restoration of Balance
(a) A Changing Judiciai Outlook

Recent judiciai pronouncements represent a partial re
the aggressive attitudes of the last few years. In R. v. Secre
for the Environment, ex p. Nottingham City Council21
Lords showed scrupulous caution in reviewing the statuto
the Secretary of State to issue guidance to local aut
expenditure limits.22 This spirit of circumspection
attributable to the requirement relating to approval of t
guidance by the House of Commons,23 with the resultin
between acountability to the legislature and review by the c
apart from this dimension, support for a stance of greater
pervades the speech of Lord Scarman. In marked co
Bromley24 and R. v. Secretary of State for Transport, ex
their Lordships were prepared to recognise in the Notti
Council case that the incidence ofa fiscal burden as betwe
1V South Oxfordshire D.C. v. Secretary of State for the Environment [1981] 1 W.

20 Atp. 1099, per Woolf J.
21 [1986] A.C. 240.
22 Local Government, Planning and Land Act 1980, s.59.
23 /rf.,s.60(7), (8).
24 See n.58, supra.
25 Scc n.93, supra.
and ratepayers involves, in substance, a political

typically alien to the judicial function.26
The reassuring development is the explicit ack
the courts that "judicial review is a great weapon
judges: but the judges must observe the constitution
parliamentary system upon their exercise of this be
Respect for these limits has largely taken the form
meticulous examination of the structure and
discretionary power is warranted on the part of
prima facie case is established in regard to mala fide
or manifest absurdity. In the Nottingham case itself
declined to embark on this examination in the absence of evidence
indicative of a pattern of perversity or apparent absurdity. In R
Hillingdon L.B.C, exp. Puhlhofer2* their Lordships, in similar vei
showed reluctance to interfere with a finding of fact reached in good
faith by the tribunal identified by the legislature as the judges of fact
the absence of a well-founded assertion that the tribunal had
misconstrued the empowering provision, abused their power
some other way acted perversely .29 The crucial limitation on th
of judicial review emerging from Puhlhofer is that the exis
non-existence of a fact involving "a broad spectrum ranging fro
obvious to the debatable to the just conceivable"30 is essentially
the purview of the subordinate tribunal. In Re Westminste
Council31 the House of Lords took the opportunity to stre
judicial review "has nothing whatever to do with the politica
or unwisdom, propriety or impropriety of the decisions imp
and that "it is not the function of the court to determine whether a
decision is reasonable or not"33 unless the degree of arbitrariness fails
squarely within the Wednesbury formula.
In developing this restrained approach the courts have found i
necessary to repudiate in part the use which had previously been made
of conceptual levers forged for the control of discretionary
administrative power. In R. v. Inner London Education Authority, e
p. Westminster City Council34 the court was prepared to strike down a
decision of the I.L.E.A. to utilise funds to retain an advertising agency
for purposes which were partly proper and partly improper. The ruling
[1986] A.C. 240 at p. 247, per Lord Scarman.

/tod.,atpp. 250-251.
[1986] A.C. 484.
Ibid., at p. 518,per Lord Brightman: cf. at p. 510, per Lord Roskill.
Ibid., at p. 518. This trcnd is reinforced by R. v. Secretary of State for the Home Department, exp.
Swati [\9$6] 1 W.L.R. 477.
[1986] 2 W.L.R. 807.
Ibid., at p. 813, per Lord Bridge of Harwich.
33
Ibid., at p. 830, per Lord Templeman: cf. at p. 843, per Lord Oliver of Aylmerton.
34 [19861 1 W.L.R. 28.
turned on unauthorised purpose, but if this groun

not succeeded, the court rejected the suggestion
would have been equally vulnerable on the alternat
of a fiduciary duty owed to the ratepayers.35
(b) Categories of Functions Excluded from Review

As a partial counterpoise to the greatly increas
judiciai review on the footing of the Wednesbury
years, the courts seem disposed to exclude some
from the ambit of review for reasons of policy.
Modern judges are wary of invoking the test of
relation to purely advisory bodies whose function and
to the making of recommendations. Under the H
(Redistribution of Seats) Act 1979, the task o
commission is to make recommendations to the S
who, after making any modifications to their report
appropriate, submits it to Parliament for final app
The commission, at the end of their inquiries and del
no final decision but performs a function wh
Parliament's own responsibility in making the ulti
regard to representation and constituency bounda
Appeal was of opinion that this distinctive nature of
commission might well dissuade an active superv
courts.36
It has been accepted that the scope of judici
statutory discretion exercised by the Secretary o
Affairs, in regard to the transfer of a prisoner
another, is necessarily limited.37 Judiciai review of o
used by the Secretary of State in regard to such a
deemed undesirable,38 and security factors are gen
as overriding.39 Indeed, there are many administr
within prisons which may not be capable of judiciai r
though they clearly have an important bearin
prisoners. The classification of a prisoner by the Secr
a view to deciding whether he should be held in a top
an open prison, and the decision to segregate a pr
which judiciai review is generally unsuitable.40
In regard to disciplinary action against prison offi
Ibid., at p. 50, per Glidewell J.

R. v. Boundary Commission for England. ex p. Foot [1983] Q.B. 600
R. v. Secretary of State for the Home Department, ex p. McAvoy [1984
Ibid., at p. 1417, per Webster J.
Ibid.
R. v. Board of Visitors of Hull Prison. ex p. St. Germain (1979] Q.B.
judicial review is diminished by the latitude availa

in respect of consideration of relevant material. W
the Secretary of State decided to dismiss a pr
disciplinary inquiry, it was held that the Secretary w
consideration of the facts surrounding the speci
limited entries made in the officer's record of servic
properly taken into account the officer's annual s
series of written warnings which he had been given
court was eager to eschew an approach which, ar
inference, restricted "what can be taken into con
which may well exclude matters which can prope
material."42
(c) Managerial Functions

The Court of Appeal has declined to exercise review of the decision
by the governor of a prison that a prisoner was guilty of an offence and
should suffer, in part, forfeiture of remission of sentence.43 The basic
approach of Lawton L.J. was that the courts are concerned not with
supervising the exercise of statutory powers of management but with
preventing the misuse of public power. The chief element of the spirit
of self-restraint pervading the judgments was the court's appreciation
of the negative policy consequences attendant on the exercise of
review. The court felt able to distance itself the more easily because of
the availability of an alternative remedy less deleterious in its social
consequences and equally effective for the purpose of the applicant for
relief. Since the prison governor discharged a managerial function
under the supervision of the Secretary of State, the latter was held
open to judicial review in regard to the proper performance of his
statutory duty,44 so that there was the assurance of redress in a
compelling case.45
Where a local authority, in the exercise of statutory power,46
resolved to refer several tenancy agreements to a rent tribunal to
decide whether the rents demanded by the landlords were exorbitant,
the Court of Appeal considered that there was no occasion for the
exercise of judicial review.47 The rationale of the decision was that
potential jeopardy to the interest of the landlords, who objected to the
reference, arose not from the local authority's action in making the
reference but from the substantive decision of the rent tribunal in
R. v. Secretary of State for the Home Department, exp. Broom [1986] Q.B. 198.
Ibid., at p. 208, per Kennedy J.
R. v. Deputy Governor of Camphill Prison, exp. King [1985] Q.B. 735.
Prison Rules 1964 (S.I. 1964 No. 388), r.47(7).
[1985] Q.B. 735 at p. 752, per Griffiths L.J.
Rent Act 1968, s.72.
R. v. Barnet and Camden Rent Tribunal, ex p. Frey Investments Ltd. [1972] 2 Q.B. 342.
proceedings in which the landlords would be afforded

opportunity to be represented.48 This was thought to
uncongenial context for invocation of the Wednesbury rule, sin
anticipated invasion of rights was at yet one further remove.
(d) Pickwells Case: a Limiting Principle

Pickwell v. Camden London Borough Council49 expre
trend of judiciai withdrawal. In this case the Queen's Bench
refused to characterise as unreasonable, in the Wednesbury s
exercise by a local authority, at a time of crisis in the local aut
administration caused by a strike, of a statutory power to fix w
for its employees at a level higher than that agreed upon na
Ormrod L.J. underlined50 that the principle of Wedn
unreasonableness does not permit expenditure to be disallow
surcharge to be levied, whenever the local authority's reason
expenditure are "ill-advised, stupid or even dishonest"51 and th
not for the court to substitute its own view of what is a desira
in relation to the subject matter of a discretion conferred on t
authority.52 The thrust of decisions like Roberts v. Hopwo
Prescott v. Birmingham Corporation54 is significantly weakene
approach of Forbes J. to judiciai appraisal of a local authority's
balancing the conflicting interests of inhabitants, ratepay
employees.55
However, the principal importance of the decision consist
line of reasoning favoured by Ormrod L.J. in regard to the
whether disregard of material considerations and adver
irrelevant considerations are to be regarded as subsume
concept of unreasonableness or whether these factors are bes
as a separate ground of challenge. Subject to recognition th
may be some decisions which are so self-evidently erroneous
court may be justified in drawing the inference that the local a
has purported to use the discretion, given to it for one pur
reality to achieve an ulterior or collateral objective which is ult
Ormrod L.J. was inclined to take the view that failure to refer to
relevant matters, or the taking into account of irrelevant matters, is in
effect evidence that the local authority may have exceeded its
Ibid., at p. 358, per Salmon L.J.

[1983] Q.B. 962.
Ibid., atp. 1001.
Re Decision of Walker [1944] 1 All E.R. 614 at p. 616, per Du Parcq LJ.
Luby v. Newcastle-under-Lyme Corporation (1964] 2 Q.B. 64 at p. 72, per Diplock L.J. (affd.
[1965] 1 Q.B. 214 (C.A.)).
See n.l4, supra.
See n.80, supra.
[1983] Q.B. 962 atp. 987.
authority but does not amount in itself to illegality.56 In other words,

despite clear proof that relevant considerations have been disregarded
or that irrelevant considerations have been taken into account, the
court, in evaluating the substantive quality of the decision, has
sufficient scope for manoeuvre to conclude that, notwithstanding
these lapses, the decision is not intrinsically unreasonable, assessed in
relation to Wednesbury criteria. The availability of judicial
discrimination in declining review in cases of this kind goes against the
grain of conventional approaches and diminishes in crucial respects the
scope of judicial intervention.
VI. CONCLUSION AND POSTSCRIPT: Two RECENT CASES
Next to the lately established principle regarding the exclusivity of

judicial review procedure, developments in the area of Wednesbur
unreasonableness form the salient feature of contemporary
administrative law. In the wake of these developments the law has cut
loose from its stable moorings and is now adrift on uncharted waters.
The nature of judicial review requires that the residual scope of the
Wednesbury rule should be strictly controlled and, indeed, judicia
attitudes have been noteworthy for their caution until the emergence
of the trends of the last three years. A hypothetical example of
unreasonableness,57 endorsed in the Wednesbury case itself,58 is t
dismissal of a red-haired teacher because she had red hair. Actual
situations in which the intervention of the courts was thought
warranted have been equally extreme in their departure from reaso
for instance, where only four days were allowed by a Minister
lodging objections to a scheme for a comprehensive school59 or whe
gratuity for an employee was assessed at the contumelious rate
penny a year.60 From these infinitesimal origins Wednesb
unreasonableness, as a standard of judicial review, has today ram
into so vast an area that its character is barely recognisable.
The essential criticism of some recent developments is that t
have the effect of transforming unacceptably the purpose of ju
review which, after all, seeks to ensure that the individual receives
treatment, and not to guarantee that the administrative author
after according fair treatment on a matter which it is authorised by
to decide for itself, reaches a conclusion which is correct in the eye
5S Ibid., at pp. 999-1000.

57 Short v. Poole Corporation 11926] Ch. 66.
-5 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at
per Lord Greene M.R.
59 Lee v. Department of Education and Science (1967) 66 L.G.R. 211.
60 Williams v. Giddy l1911] A.C. 381.
the court.61 Modern judiciai approaches are al

antithesis of values previously held and applied, a
contradictions, seen in relation to their policy implicat
reproach to the evolving law. Judiciai resolve to confin
on the ground of disregard of a material consideration
which the factor overlooked could be expected decisive
outcome has given way to the willingness of judges
on the basis of disproportionate weight given by the d
a relevant consideration. The attitude that an appr
between the overall object of the administrative a
specific means selected for its attainment should suffi
Wednesbury review, without examination of abnor
which the link is apparently slender, has succumbed to
judiciai inhibition in regard to the weighing of com
interests affected by policy which the administra
empowered by statute to determine.
This expansion of the contours of Wednesbury u
has been effected by conceptual means of doubtful
of fiduciary obligation has been transplanted from
environment to an alien setting in which its applicatio
group of interests stultifies legitimate initiative on
administrative tribunal. The enlarged scope of legiti
giving rise to a duty to consult in the context of levyin
graduated scale in circumstances where the quantum
matter of executive discretion, fails to strike a ba
administrative efficacy and justice for the indi
imposition of an estoppel in any situation w
administrative action is incompatible with a previo
may often constitute an intolerable fetter. Th
interventionist attitude ofthe courts in the area of dis
considerations, in respect of the range of factors treat
well as in relation to the novel trend of quantifying p
equally destructive of a sense of balance.
There is, as well, the practical hardship that, gi
exposure of administrative tribunals to attack
grounds, a tribunal may find itself compelled to choos
sectors of public policy between the Scylla of invo
Charybdis of withdrawal, knowing full well that, w
decides, it may not escape condemnation. This was, ind
local authority in Wheeler v. Leicester City Council
aware that a substantial part of its population was of A
Chief Constable ofthe North Wales Police v. Evans [1982] 1 W.L.R. 115
Hailsham of St. Marylcbonc L.C.
[1985] A.C 1054 (H.L.).
disturbed that three members of the Leicester Fo

to be members of the English Rugby Football U
South Africa. The council put to representative
Football Club a series of questions which asked w
opposed to the tour and would press the thre
withdraw from the touring side. Dissatisfied with t
these questions elicited, the council refused the club
a football pitch on their recreation ground which t
the club for many years in the exercise of their sta
power. The House of Lords, overruling the major
Appeal, was of opinion that the council's attempt "t
by the club of their own policy on their own terms,
threat to apply a sanction, came within the p
unreasonableness.63 Yet, against the backgrou
judicial opinion which looks with favour upon
developing content of international obligations as
these circumstanees, and also in the light of the sta
on the local authority to do all in its power
harmony ,M the council may well be forgiven the cy
abstention from the course which they followed
equal, if not greater, vulnerability in term
Wednesbury formula.
The disconcerting limits to which the apparatus o
of being extended in keeping with the emerging
the consequent mutilation of legal principle, are
argument urged in support of Wednesbury revie
Norfolk and Wisbech Area Health Authority.65 The
doctors employed by an area health authority c
contraceptive advice or treatment to the plainti
were under sixteen years of age, without her kno
The area authority had received from the Depart
Social Security a memorandum of guidance on fam
stated, inter alia, that to abandon the principle
between doctor and patient in respect of children u
might cause some not to seek professional advice
them to risks such as pregnancy and sexually transm
that in exceptional cases it was for a doctor exe
judgment to decide whether to prescribe contrac
contentions on the plaintiff's behalf was that the d
the memorandum, was exercising its discre
unreasonable way. The deep cleavage of opinion
Ibid., at p. 1078, per Lord Roskill.
Race Relations Act 1976, s.71.
[1986] A.C. 112 (H.L.).
moral and ethical issues underlying the case is evi

narrowness of the majority in the House of Lords
legality of the department's action. Lord Fraser,66 Lor
Lord Bridge68 recognised the entitlement of a
contraceptive advice and treatment to a girl under sixt
parents' knowledge and consent, in circumstances w
likely to begin or continue having sexual intercourse w
contraceptive treatment, if the doctor is satisfied that
physical health is likely to suffer unless she received c
the other hand, Lord Brandon69 was convinced that to
contraceptive treatment would be to remove a pow
and, therefore, to facilitate a sexual relationship.70
These are matters in regard to which prevailing soci
marked by a great divide. "Some doctors approve a
disapprove of the idea that a doctor may de
contraception for a girl under sixteen without the
parent. Some parents agree and some parents di
proposition that the decision must depend on the j
doctor."71 To have recourse to the Wednesbury rul
review in such circumstances as these is to subvert
majority of the House of Lords recognised, refreshing
withdrawal from such areas of social and ethica
opportune. Of particular value is the perception
Wednesbury review, that:
Such a review must always begin by examining the

statutory power which the administrative authorit
is called in question has purported to exercise, and
light of that examination, what were, and what we
considerations for the authority to take into accoun
exercise that power. It is only against such a spe
background that the question whether the auth
unreasonably, in the Wednesbury sense, can pro
and answered.72
Wednesbury unreasonableness would certainly hav

pretentious proportions in modern law, had this limita
in mind. As the law now stands, adiposity of the
criterion distorts in basic respects the nature and func
review.
174.
66 Ibid., atp
67 /fc/rf.,atp 189.
68 Ibid., atp 194.
69 Ibid., atp 197; c/. Lord Templeman at pp. 200-201.
70 Ibid., atp 197.
71 Ibid, atp 202, per Lord Templeman.
72 /&M., atp. 192, per Lord Bridge of Harwich.

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Editorial Committee of the Cambridge Law Journal

Wednesbury Unreasonableness: The Expanding Canvas

WEDNESBURY UNREASONABLENESS: THE

It is an essential aspect of the English legal tradition in public law

The extended interpretation of Wednesbury unreasonable

these preferences, within the ambit of delegated power, strengthens

II. THE TEST OF WEDNESBURY UNREASONABLENESS

Unreasonableness, as a ground of judicial review of administrative

the terms of the powers conferred on it and that, even i

III. Limits of the Wednesbury Rule

A principle of judiciai intervention, so conceived, obviously

evaluation.19 Judges, accordingly, have shown great se

(a) Education Policy

comprehensive and grammar school systems, e

(b) Retrenchment of Labour

34 Ibid, at p. 1061, per Viscount Dilhorne.

of them, and also to demonstrate that each option had

(c) Industrial Arbitration

Ibid., atp. 262.

A declaration of nullity of the finding by ACAS was granted at first

(d) Environmental Planning

Both objectives were identified as statutory imperatives: see s.4.

subject to the condition that the occupation of th

an oblique restriction as a matter of judicial

(e) Differential Rents

53 Westminster Bank Ltd. v. Beverley B.C. [1971 j A.C. 508 at p. 530

IV. Extension of the Scope of Review

(a) Fiduciary Duty

effect, a transfer from central government to l

Ibid., at p. 830, per Lord Diplock.

the less inclined they must be to intervene,"68 an

68 CREEDNZInc. v. Govemor-General\m\}! N.Z.L.R. 172 atp. 198 per

the relevant legislation purported to empower metropolitan borough

75 Metropolis Management Act 1855, s.62.

Bromley case to retain its validity at the present day

(b) Legitimate Expectation

82 (1983] 1 A.C. 768 at pp. 831-832, per Lord Keith of Kinkel.

itself to development as an aspect of natural justice,87

founded upon an undertaking, expressly given on behalf of the

circumstanees. Not only is the wide sweep of a com

"* [1985] A.C. 318.

in regard to the nature of the representations that m

any element of unreasonableness which warranted judicial

unreasonableness, and reduces appreciably the lati

(d) Disregard of Relevant Considerations

It is only when the statute expressly or impliedly identifies

This distinction between obligatory considerations and permissible

administrative decision making, especially in

13 Immigration Act 1964. s.14 (N.Z.).

on the basis of unreasonableness not only in circum

V. The Restoration of Balance

(a) A Changing Judiciai Outlook

1V South Oxfordshire D.C. v. Secretary of State for the Environment [1981] 1 W.

and ratepayers involves, in substance, a political

[1986] A.C. 240 at p. 247, per Lord Scarman.

turned on unauthorised purpose, but if this groun

(b) Categories of Functions Excluded from Review

Ibid., at p. 50, per Glidewell J.

R. v. Board of Visitors of Hull Prison. ex p. St. Germain (1979] Q.B.

judicial review is diminished by the latitude availa

(c) Managerial Functions

proceedings in which the landlords would be afforded

(d) Pickwells Case: a Limiting Principle