Scope of The Wednesbury Principle
Scope of The Wednesbury Principle
Scope of The Wednesbury Principle
Prima facie, it may seem irrelevant to ask the obvious question: Could it have possibly been the
intention of the Parliament that any body should behave unreasonably? The answer is, of course, no,
and it is this understanding that provides the basis for jurisdiction.
Critical to the evaluation of the Wednesbury principle is an appraisal of where it can be located
within the scheme of administrative law, and its articulation in a different category of challenge to
administrative action.
The purpose of the introduction is twofold: If we concede that the Wednesbury principle is a tool for
challenging administrative action,
Where is the principle located within the scheme of administrative law?
Why is there a necessity to study unreasonableness under a different category, is this not covered by
the ultra vires doctrine?
The way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is
understood with respect to grounds of judicial review of administrative action. In relation to this, as
the ultra vires principle already exists, a question that is often asked is the reason for the necessity of
a discrete principle relating to unreasonableness.
are important insofar as they uphold the sovereignty of parliament, and the rule of law (such
importance is to be illustrated in comparison with the Wednesbury principle).
Very often, there are cases wherein there is more than one ground of challenge, and this is because
the facts of any case are likely to introduce several levels of complexity. It has been observed that
numerous decisions have unreasonableness as a common factor. However, the use of the term
unreasonableness" is not specific enough. Questions related to this are: What do the judges mean
when they use the term unreasonableness"? Does it refer to outrageous behaviour, or a duty of the
public body to act reasonably? What the researchers seek to do in this project is to answer these
questions, by way of analysis of the Wednesbury case, and the principle that evolved thus. [5]
techniques to discipline the exercise of administrative discretion but the judiciary was very cautious
in exercising its power of judicial review.
It was in Wednesbury Corporation case that the Court of Appeal in England ruled that the courts
could only interfere in an act of executive authority if it be shown that the authority had contravened
the law and that the power of the courts to interfere in such matters is limited, except where the
discretion has not been exercised within the four corners of well-known legal principles. This
observation signified the approach the judiciary adopted.
In Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., Lord Greene, M.R. in a classic
and oft-quoted passage held that when a statute gave discretion to an administrator to take a decision,
the scope of judicial review would remain limited. He said that interference was not permissible
unless one or the other following conditions were satisfied viz. the order was contrary to law, or
irrelevant factors were considered, or relevant factors were not considered or the decision was one
that no reasonable person could have taken.
Facts of the Case
The facts of Wednesbury are critical to a discourse on the subject. The plaintiff company, the owners
and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by the defendants
who were the licensing authority for that borough under the Cinematograph Act, 1909, a licence to
give performances on Sunday under S.1 (1) of the Sunday Entertainments Act, 1932; but the licence
was granted subject to a condition that "no children under the age of fifteen years shall be admitted to
any entertainment whether accompanied by an adult or not." In these circumstances the plaintiffs
brought an action for a declaration that the condition as ultra vires and unreasonable.
To elucidate:
performances, then such authority had the power to allow a licensed place to be open and used on
Sundays, subject to such conditions as the authority thinks fit to impose".
The Wednesbury corporation, in this case, was an authority which had:
The power to grant licences in any area for cinematograph performances under the Cinematograph
Act, 1909, and
The power to allow a licensed place to be open and used on Sundays, subject to such conditions as
the authority think fit to impose."
As there was no debate about the Wednesbury Corporation being an authority contemplated under the
Cinematograph Act, there was no debate about it being an authority under the Sunday Entertainments
Act.
Wednesbury test has been the major tool used by the Courts to control discretionary decisions. To
quote the learned judge on the crux of the judgment;
What, then, is the power of the courts? They 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. On the face of it, a condition of the
kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible
bodies like the local authority in this case will exceed their powers; but 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. When an executive
discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to
be an exercise of that discretion can only be challenged in the courts in a strictly limited class of
cases. As I have said, it must always be remembered that the court is not a court of appeal. When
discretion of this kind is granted the law recognizes certain principles upon which that discretion
must be exercised, but within the four corners of those principles the discretion, in my opinion, is an
absolute one and cannot be questioned in any court of law. [19]
What then are those principles? They are well understood. They are principles which the court looks
to in considering any question of discretion of this kind. The exercise of such discretion must be a
real exercise of the discretion. 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. Conversely, 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."
Summary
The Court of Appeal held that it could not intervene to overturn the decision of the defendant
corporation simply because the court disagreed with it. To have the right to intervene, the court would
have to form the conclusion that:
The corporation, in making that decision, took into account factors that ought not to have been taken
into account, or
The corporation failed to take account factors that ought to have been taken into account, or
The decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed
and the decision of the Wednesbury Corporation was upheld. The test laid down in this case, in all
three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to
describe the third limb, of being so unreasonable that no reasonable authority could have decided that
way.
rights ..There is a material difference between the Wednesbury and Smith grounds of review and
the approach of proportionality applicable in respect of review where Convention rights are at stake."
(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an
unnecessary burden on affected persons? [23]
Conclusion
Substantive review has always been considered an anathema in judicial review proceedings. When
Lord Denning, M.R. stated:
"I go further. Not only must he be given a fair hearing, but the decision itself must be fair and
reasonable." [30]
On appeal Lord Chancellor and Lord Brightman lost no opportunity to rebuke such a proposition on
the ground that it went against the well-established principles of judicial review viz., that judicial
review is not concerned with the decision but with the decision-making process
The superior Courts in India enjoy the powers of judicial review and this is accepted as one of the
basic features of our Constitution. We have been following the common law principles in the matter
of justice delivery system, and for interpretation of the Constitution and the Statutes we rely heavily
on some of the basic principles laid down by the superior Courts of common law countries. It is,
therefore, of immense importance that some of the decisions of the United States Supreme Court, The
House of Lords and The Court of Appeal in the United Kingdom, the Supreme Court of Canada and
the High Court of Australia attract our attention and we closely follow them in appropriate cases. But,
we must also remember that these decisions are rendered in peculiar socio-economic conditions of
those countries and many of these principles cannot be applied implicitly in Indian conditions.
However, the general guidelines issued in these decisions have always been applied by our Courts. In
the matter of administrative law, there have been tremendous changes in recent times. There is even a
fundamental shift in a great deal of public law litigation in England, by virtue of the implementation
of the Human Rights Act, 1998, the shift has been significantly accelerated and the principles of
judicial review must be actually justified by Constitutional provisions. Though the right of superior
Courts to invoke the judicial review is guaranteed by the Constitution, its content, reach and power,
and the balance between various principles are not enunciated in any provision of the Constitution,
but have probably been founded on various principles enunciated on the basis of notions of fairness
which generally permeate the common law.