Wednesbury in Proportion - Beyond mere reasonableness

Most actors fear being 'type-cast'. In other words, being so identified with a particular character or type that the performer is continually allocated similar parts. For thespians frequently perceive their craft to lie in their chameleon-like ability to 'become' different people in different productions. A vintage example is Alec Guinness in the 1949 film, Kind Hearts and Coronets. There he plays all eight members of the D'Ascoyne family (relatives of the protagonist, Louis Mazzini) who stand between Mazzini and the Dukedom of Chalfont and whom he therefore decides to 'remove'.

But typecasting can also afflict the rather different world of public law. For although the seminal 1947 case of Wednesbury (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 223) is really an early expression of the principles for properly exercising public authority statutory discretion, in the minds of many it has unfortunately been typecast by the misleading abbreviation, 'Wednesbury reasonableness', bringing to mind the absurd 'example of the red-haired teacher, dismissed because she had red hair'. So it is worth reminding ourselves of the breadth of the Wednesbury principles before briefly considering some aspects of the modern concept of proportionality Wednesbury'...an executive discretion is entrusted by Parliament to a body such as the local authority...what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. 'Court not an appellate authority. The power of the court to interfere is as a judicial authority concerned only 'to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.'Court must not substitute itself for the authority. The Courts 'can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition... the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good'. There must be a real exercise of discretion. For if 'in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters'. On the other hand, 'if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.'Wednesbury encompasses fundamental public law principles i.e. various issues broadly encompassing the modern concepts of abuse of power and the need for focus on proper statutory requirements and purpose which Lord Greene thought might be broadly classifiable under a single head, e.g. 'Bad faith, dishonesty - those of course, stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that...' which can'overlap to a very great extent'.Discretion must be exercised reasonably. Lord Greene noted that (even back in 1947!) lawyers 'often use the word 'unreasonable' in a rather comprehensive sense. So a 'person entrusted with a discretion must direct himself properly in law, calling his attention to the matters which he is bound to consider and excluding from his consideration matters which are irrelevant to what he has to consider. Failure to obey these rules may be said to be acting unreasonably. However, at the extreme end, there may arise 'something so absurd that no sensible person could ever dream that it la within the powers of the authority'. This would no doubt contravene various public law principles. However, 'to prove a case of that kind would require something overwhelming'. Proportionality 'By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.''... the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii)whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.''(1)whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. Although Lord Reed said that he had 'formulated the fourth criterion in greater detail than Lord Sumption' he saw 'no difference of substance'. For in essence, step four assesses 'whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure'. Comment[1]Those than can be interfered with if specified conditions are met.[2]Nicholas Dobson is a Consultant with Freeths LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government. This article was first published in New Law Journal on 27 November 2015.