#10530 - Substantive Review - Administrative Law

It is classically said that judicial review is concerned with procedure, not substance: with the way in which decisions may be taken, not with what decisions may be reached. Hence the traditionally process-oriented nature of judicial review. If we consider natural justice (fair hearings, bias), relevant considerations in administrative decision making, procedural legitimate expectations etc.; it is easy to conclude that judicial review is traditionally about process – making sure decisions are made in the right manner. This process-orientated conception of JR finds its justification in the distinction between appeal and review – by confining itself to the decision making process, the court avoids interfering with the merits od a decision, thereby reducing the scope for judicial usurpation of the executive function.

But has judicial review ever really lived up to this ideal (if indeed it is an ideal)? Consider, for example, the courts’ willingness to engage in relatively interventionist review in fields such as:

• Improper purposes: R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386

• Statutory interpretation: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (and the line of case law generated by Anisminic)

• Application of statutory criteria to facts: Khawaja v Secretary of State for the Home Department [1984] AC 74; R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557

The law of JR has clearly not wholly avoided examination of the outcomes of the decision-making process. Further than propriety of purpose and questions of fit, the test of reasonableness has long imposed a substantive as opposed to procedural limitation on decision makers. Substantive review is review of the decision itself, but this does not necessarily amount to merits review.

When we look at outcomes of the decision making process by engaging in substantive review, some important questions arise. What are the criteria we should measure outcomes against – rights, values? What standard should we hold them to in order to decide on their legality –correctness, proportionality, or reasonableness? There is always also always the risk of engaging in merits review through the ‘back door’.

Furthermore, any determination as a result of substantive review naturally attempts to close off unlawful outcomes – but this might have separation of powers implications, particularly in binary cases. It involves an inroad into the substantive options available to the decision maker.

There are two main ways in which we can talk about substantive review – proportionality and reasonableness. The latter is the background to the former.

The unreasonableness test was classically laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 at 229 and 234:

The case revolved around the statutory power granted to local authorities by the Sunday Entertainments Act 1932. Local authorities had the power under the act to authorise cinema opening on Sundays subject to whatever conditions they thought fit to impose. They imposed such a condition – no Under-15s would be able to visit the cinema on Sundays.

Held, Lord Greene MR: The effect of the legislation is not to set up the court as arbiter of what is the right decision – as long as the local authority was acting within the ‘four corners of its jurisdiction’, it is the local authority’s decision to make and the court cannot interfere. We can see right away that underlying this decision is the separation of powers – it is a conscious decision of the court not to intrude on the decision-making remit of the executive.

Greene suggests that there are two categories of unreasonableness – which can broadly be described as process-oriented and substantive:

• Process-oriented unreasonableness:

  • The decision maker must direct himself properly in law;

  • Consider relevant considerations;

  • Exclude irrelevant matters.

• Substantive unreasonableness:

  • Decisions which are wholly absurd – e.g. dismissing the red-haired teacher because of her red-hair;

  • Where there is evidence of bad faith;

  • Evidence of extraneous considerations.

Lord Greene says though that ‘all these things run into one another’. One of the difficulties here then is that when people refer to ‘unreasonableness’ they might be talking about these procedural forms that would now fall under other grounds of judicial review. Our concern is about substantive unreasonableness.

In terms of this substantive unreasonableness, the orthodox formulation was stated as:

… something so absurd that no sensible person could ever dream that it lay within the powers of the authority … [A] conclusion so unreasonable that no reasonable authority could ever have come to it

Compare Lord Diplock’s “irrationality” test, as set out in Council of Civil Service Unions v. Minister for the Civil Service (The GCHQ Case) [1985] AC 374 at 410:

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.

The orthodox formulation then clearly classifies an unreasonable decision as one which is truly exceptional. There is a question of why the level of unreasonableness is pitched so high.

Are the Wednesbury and GCHQ tests misleading? Consider the view of Wade and Forsyth:

Taken by itself, the standard of unreasonableness is nominally pitched very high … It might seem from [the language of the tests] … that the deliberate decisions of ministers and other responsible public authorities could almost never be found wanting. But … there are abundant instances of legally unreasonable decisions and actions at all levels. This is not because ministers and public authorities take leave of their senses, but because the courts in deciding cases tend to lower the threshold of unreasonableness to fit their more exacting ideas of administrative good behaviour.

Similarly, Jowell and Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] PL 368 at 372 say:

[Wednesbury] seeks to prevent review except in cases where the official has behaved absurdly … 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.

There is a suggestion that the courts may not be as good as their word in applying the test, however. W&F argue that courts are more willing to strike decisions down than their rhetoric suggests – they impose ‘more exacting standards’. Jowell and Lester say that the decisions need not ‘verge on the insane’.

The explanation for this is relatively straightforward. They are subject to the pull of two competing forces. On one hand, they place great important on maintaining the distinction between appeal and review, they don’t want to be seen on arbitrating on the merits of decisions in order to maintain the separation of powers – the initial justification for the test remains a strong factor. Similarly however, they clearly also have a desire to intervene where they perceive bad administration.

Are judges really more ready to intervene than the rhetoric suggests? See, eg, Hall and Co. Ltd. v. Shoreham-by-Sea Urban District Council [1964] 1 WLR 240; R. v. Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720. For comment, see Laws, ‘Wednesbury’ (in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (Oxford 1998).

The rhetoric is variable, too. Not all courts have adopted the same formulation of the test. Consider:

• Secretary of State for Education v. Tameside Metropolitan Borough Council [1977] A.C. 1014 at 1064, per Lord Diplock (cf Lord Diplock’s GCHQ formulation, above)

There was an alternative approach to unreasonableness: “conduct which no sensible authority acting with due appreciation of it’s responsibilities would have decided to adopt”.

• R. v. Chief Constable of Sussex, ex parte International Traders’ Ferry Ltd. [1999] 1 All E.R. 129 at 157, per Lord Cooke

“Whether the decision in question was one which a reasonable authority could reach”.

• This is clearly a more moderate formulation of the unreasonableness test – but this approach clearly begs a question – how do we tell whether a decision is one that a ‘reasonable authority’ would reach?

This might look like a semantic difference – they are just using different words. Elliott suggests that this is not the case – it goes much deeper, touching deeply different opinions about the relationship between the court and decision maker.

Does the large number of formulations of the unreasonableness test mean that this area of administrative law is simply incoherent? Or do the different versions of the test reflect a set of principled distinctions which condition the courts’ approach to substantive review? Consider the view of Laws, ‘Wednesbury’, op cit at 186-187:

On the surface at least the test of unreasonableness or irrationality … is monolithic; it...