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The Reasonableness Principle: Reassessing its Place in the Public Sphere

Published online by Cambridge University Press:  14 April 2004

T.R. Hickman
T.R. Hickman*
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Barrister
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The Cambridge Law Journal , Volume 63 , Issue 1 , 27 March 2004 , pp. 166 - 198
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Copyright © Cambridge Law Journal and Contributors 2004

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References

Notes

1 (1866) L.R. 1 H.L. 93, 110; also 122-123 per Lord Cranworth L.C.

2 Ibid., at p. 112. It was long recognised that a mere failure to act was not actionable in tort in the absence of a special duty. Cases often said to stand as authority for a rule that the presence of statutory discretion excludes the requirement of exercising reasonable care (especially Sheppard v. Borough of Glossop [1921] 3 K.B. 132 and Fisher v. Ruislip-Northwood UDC [1945] 1 K.B. 584) in fact stand for no more than this.

3 (1878) 3 App. Cas. 430, 456 per Lord Blackburn. 450 per Lord Hatherly. The case is consistently supported by later authority, e.g., Lagan Navigation Co. v. Lambeg Bleaching, Dyeing and Fishing Co. [1927] A.C. 226.

4 S.A. de Smith, Judicial Review of Administrative Action (London 1959), 217.

5 (1773) 2 Bl. W. 929; 3 Wils. K.B. 461. It was well put in Whitehouse v. Fellows (1861) 10 C.B. (N.S.) 765, 779 per Williams J.

6 2 Bl. W. 929, 925-926.

7 3 Wils. K.B. 461, 468.

8 Sutton v. Clarke (1815) 6 Taunt. 29, 42-43 per Gibbs C.J. (although on the facts the defendant had acted reasonably).

9 Boulton v. Crowther (1824) 2 B. & C. 703, 707 per Abbott C.J.; Whitehouse v. Fellows (1861) 10 C.B. (N.S.) 765, 780 (“so carelessly or improperly” per Williams J.); Goldberg & Sons Ltd. v. Mayor of Liverpool (1900) 82 L.T. 362, 363 (“[must not act] in a perverse, arbitrary, or vexatious spirit … [but must be] bona fide and reasonable” per Hall V.C.); Southwark and Vauxhall Water Co. v. Wandsworth Local Board [1898] 2 Ch. 603, 611 (“reasonably” per Collins L.J.); cf. Vernon v. Vestry of St. James, Westminster (1880) 16 Ch. D. 449, 459 per Malins V.C. The different conceptualisations are discussed in Howard-Flanders v. Maldon Corporation (1926) 135 L.T. 6 and East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, 89-90 per Lord Atkin.

10 Ibid., at pp. 11-12.

11 Sargant L.J. held that the local authority had to use reasonable care to do no unnecessary damage (ibid., at p. 12).

12 Richardson v. London County Council [1957] 2 All E.R. 330; see further De Freville v. Dill (1927) 138 L.T. 83; Harnett v. Bond [1925] A.C. 669.

13 Mayor and Councillors of East Fremantle v. Annois [1902] A.C. 213 (P.C.); Roberts v. Charing Cross Railway Co. (1903) 87 L.T. 732; Whitehouse v. Fellows (1861) 10 C.B. (N.S.) 765; British Cast Plate Manufacturers v. Meredith (1792) 4 T.R. 794. For a sustained analysis supporting this view, see C.B. Bourne, “Discretionary Powers of Public Authorities: Their Control by the Courts” (1948) 7 Univ. Toronto L.J. 395.

14 Sutton v. Clarke (1815) 6 Taunt. 29; Boulton v. Crowther (1824) 2 B. & C. 703.

15 Mayor and Councillors of East Fremantle v. Annois [1902] A.C. 213, 218 (P.C.).

16 Everett v. Griffiths (No. 1) [1921] 1 A.C. 631. Of course, until 1947 the Crown was also immune from suit. Mersey Docks rejected the contention that immunity extended to public trustees.

17 De Smith, note 4 above, at pp. 214-221; G. Ganz, “The Limits of Judicial Control over the Exercise of Discretion” [1964] P.L. 367; this seems also to have been the view of Lord Atkin: Everett v. Griffiths (No. 1) [1920] 3 K.B. 163, 211-212 (C.A.); R. v. Roberts, ex parte Scurr [1924] 2 K.B. 695, 727 (C.A.); East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, 89-90.

18 E.g., Ellis v. Dubowski [1921] 3 K.B. 621; Roberts v. Hopwood [1925] A.C. 578; Harman v. Butt [1944] K.B. 491; and in the context of unequal by-laws the earlier case of Kruse v. Johnson [1898] 2 Q.B. 91. For some very early cases see H.W.R. Wade and C.F. Forsyth, Administrative Law, 8th edn. (Oxford 2000), 353; and Henderson, E.G., Foundations of English Administrative Law (Cambridge Massachusetts 1963), 40-41Google Scholar.

19 Allison v. General Council of Medical Education and Registration [1894] 1 Q.B. 750; Lee v. Showmen's Guild of Great Britain [1952] 1 All E.R. 1175; R. v. Medical Appeal Tribunal, ex parte Gilmore [1957] 1 Q.B. 575.

20 [1948] 1 K.B. 223.

21 Ibid., at p. 228.

22 De Smith, note 4 above, at p. 219.

23 [1970] A.C. 1004.

24 His Lordship first employed the term “public law” in a more limited sense in two Opinions of the Privy Counsel given on 11 December 1969: Ranaweera v. Ramachandran [1970] A.C. 962 (P.C.); Kodeeswaran v. Attorney-General Ceylon [1970] A.C. 1111 (P.C.). Dorset Yacht was decided in May of the following year. Lord Wilberforce spoke of “administrative law” in Malloch v. Aberdeen Corporation [1971] 2 All E.R. 1278 but, perhaps significantly, preferred “public law” in Anns v. Merton LBC [1978] A.C. 728. For an earlier use of the term “public law” in a narrower sense see Burmah Oil v. Lord Advocate [1965] A.C. 75, 129 and 135 per Viscount Radcliffe.

25 [1970] A.C. 1004, 1068.

26 Ibid., at p. 1067. Lord Diplock had suggested (at. p. 1066) that the “public law” approach only applies when interests otherwise protected by tort were not affected, but this was swallowed by his overriding test based on statutory discretion. See generally, C. Harlow, Compensation and Government Torts (London 1982), 51-57; S.H. Bailey and M.J. Bowman, “The Policy/Operational Dichotomy—A Cuckoo in the Nest” [1986] C.L.J. 430, 430-441.

27 Ibid., at p. 1065.

28 Ibid., at p. 1068.

29 E.g., Sutton v. Clarke (1815) 6 Taunt. 29.

30 [1969] 2 A.C. 147, 207 (emphasis added).

31 [1978] A.C. 728, 757, also at p. 758.

32 (Oxford 1961).

33 4th edn. (Oxford 1977). Although citing a passage of Lord Reid's speech (at p. 628, see below note 103), as well as referring to Lord Diplock’s, Wade essentially adopted the approach of the latter. This is confirmed by later editions (e.g., 5th edn. (Oxford 1982), 660-661).

34 See Lord Wilberforce's speech in Davy v. Spelthorne BC [1984] 1 A.C. 262. For more general comparison of their philosophies see R. Stevens, Law and Politics—The House of Lords as a Judicial Body 1800-1976 (London 1979), 555-569.

35 “Administrative Law: Judicial Review Revisited” [1974] C.L.J. 233, 245, see further “Judicial Control of the Administrative Process” (1971) 24 C.L.P. 1.

36 Guevara v. Hounslow LBC, The Times 17 April 1987. This division was recognised most clearly, and put most boldly, by Denning M.R. in O’Reilly [1983] 2 A.C. 237, 255-256 (C.A.).

44 [1995] 2 A.C. 633.

45 [1957] 1 W.L.R. 582.

46 [2001] 2 A.C. 550, 570.

47 Ibid., at p. 572.

48 [2001] 2 A.C. 619, 674.

49 [2001] 2 A.C. 550, 571-572.

50 [2001] 2 A.C. 619, 653.

51 Lord Clyde's speech in Phelps suggests that a residual role for the concept where a matter is non-justiciable (ibid., at p. 674). If the concepts of reasonableness are comparable, there is no warrant for such a role because the issue would be equally non-justiciable in relation to both concepts.

52 [2001] 2 A.C. 550, 585.

53 Ibid., at p. 586.

54 The orthodox approach remains good law in the context of some failures to act: Barrett [2001] 2 A.C. 550, 586 per Lord Hutton; Stovin v. Wise [1996] A.C. 923; Kent v. Griffiths [2001] Q.B. 36; Larner v. Solihull MBC [2001] P.I.Q.R. P17.

55 M.J. Bowman and S.H. Bailey, “Negligence in the Realms of Public Law—A Positive Obligation to Rescue?” [1984] P.L. 277, 306-307; note 26 above; S.H. Bailey and M.J. Bowman, “Public Authority Negligence Revisited” [2000] C.L.J. 85, 114, 125-131. See also J. Bell, “Governmental Liability in Tort” (1996) 6 N.J.C.L. 97.

56 Bailey and Bowman “Revisited”, ibid., at p. 114 and “Realms”, ibid., at pp. 306-307. Also P. Craig and D. Fairgrieve, have suggested it is arguable that “the meaning of reasonableness is in reality not very different in the two contexts because of ‘movement’ from both sides”: “Barrett, Negligence and Discretionary Powers” [1999] P.L. 626, 647, and see the general discussion at pp. 647-649.

57 Although, since the case was listed on a Friday and Monday it has been suggested that the judgment was reserved over the weekend: M.J. Beloff, “Wednesbury, Padfield, and all that Jazz: A Public Lawyer's view of Statute Law Reform” (1994) 15 Statute L.Rev. 147, 157.

58 In Whitehouse v. Jordan [1981] 1 W.L.R. 246.

59 See Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781, 784 per Alderson B.

60 [1957] 1 W.L.R. 582, 586.

61 Adams v. Rhymney Valley DC (2001) 3 L.G.L.R. 9, 141. In A v. Tameside and Glossop HA, The Times 27 November 1996, the Court of Appeal held that, although the best method of informing patients about a remote risk of infection with HIV was face-to-face, this was not the test to be applied and the (less desirable) method chosen was reasonable.

62 [1948] 1 K.B. 223, 230.

63 Ibid., at pp. 232-233.

64 See note 26 above, at p. 434.

65 Donoghue v. Stevenson [1932] A.C. 562, 596.

66 For example, see text to note 94 below.

67 [2001] 2 A.C. 550, 591 per Lord Hutton also at p. 572 per Lord Slynn.

68 Sussex Ambulance NHS Trust v. King (2002) 68 B.M.L.R. 177; Walker v. Northumberland CC [1995] 1 All E.R. 737; Knight v. Home Office [1990] 3 All E.R. 237; East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, 97 per Lord Thankerton. 69 Just v. British Columbia [1990] 1 W.W.R. 385; Doe v. BCPMT (1998) 160 D.L.R. 4th 697.

70 Brodie v. Singleton Shire Council v. Day (2001) 180 A.L.R. 145, at [104], [162]; Crimmins v. SIFC (1999) 167 A.L.R. 1; Romeo v. Conservation Commission (1998) 192 C.L.R. 431.

71 [1957] 1 W.L.R. 582, 587.

72 Blyth v. Bloomsbury HA [1993] 4 Med. L.R. 151; Sidaway v. Board of Governors of the Bethlam Royal Hospital [1985] A.C. 871 (H.L.) (disclosure of risks); Hughes v. Waltham Forest HA [1991] 2 Med. L.R. 155 (“one off” decisions rather than a practice); Maynard v. West Midlands Regional HA [1984] 1 W.L.R. 634; Sidaway [1985] A.C. 871, 881 per Lord Scarman (medical opinion determinative).

73 Sidaway, ibid., at p. 887 per Lord Scarman, at p. 893 per Lord Diplock; Whitehouse v. Jordan [1980] 1 All E.R. 650 (C.A.), [1981] 1 W.L.R. 246 (H.L.).

74 Lord Woolf, “Are the Courts Excessively Deferential to the Medical Profession?” (2001) 9 Med. L.R. 1, 1-2.

75 Bolitho v. City and Hackney HA [1998] A.C. 232 (H.L.).

76 See e.g., Bux v. Slough Metals Ltd. [1974] 1 All E.R. 262; Qualcast Ltd. v. Haynes [1954] A.C. 743.

77 [2001] 2 A.C. 619, 672.

78 Ibid., at p. 655.

79 [1948] 1 K.B. 223, 229.

80 Contrast, e.g., Wade and Forsyth, note 18 above, at p. 366.

81 CCSU v. Minister for the Civil Service [1985] A.C. 374, 410. Lord Diplock also required something “outrageous” in its defiance of logic or morals. His speech in CCSU should be located alongside his other protectionist speeches in O’Reilly v. Mackman and Dorset Yacht. It has been doubted whether his concept captures the reality of administrative law review: J. Jowell and A. Lester. “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] P.L. 368, 372. In R. v. Devon CC, ex parte George [1989] A.C. 573, 577 Lord Donaldson M.R. considered that it was taken to cast doubt on the mental capacity of the decision-maker. Similar comments were made in R. v. Lord Saville of Newdigate, ex parte A [2000] 1 W.L.R. 1855, at [33] (C.A.). The origin of Diplock irrationality might be found in his Lordship's de Smith Memorial Lecture, note 35 above, at p. 243.

82 [1955] S.L.T. 213, 217; see also Bailey and Bowman, note 26 above, at p. 435.

83 [1957] 1 W.L.R. 582, 587 and 593.

84 [1980] A.C. 198, 220 also 218.

85 Hughes [1991] 2 Med. L.R. 155; see further Blyth v. Bloomsbury HA (1993) 4 Med. L.R. 151; Duune v. National Maternity Hospital [1989] I.R. 91.

86 Bradford-Smart v. West Sussex CC (2001) 3 L.G.L.R. 28, and [2002] E.W.C.A. Civ. 7 (C.A.); also Scott v. Lothian RC, 29 September 1998, R.C. 1999 Rep. L.R. 15.

87 Capital & Counties plc v. Hampshire CC [1997] Q.B. 1004, 1051.

88 Ahmed v. City of Glasgow CC [2000] S.L.T. 153.

89 [1993] P.I.Q.R. P334, 354 (C.A.).

90 A. Grubb, “Comment” [1993] Med.L.Rev. 243; H. Teff, “The Standard of Care in Medical Negligence—Moving on From Bolam?” (1998) 18 O.J.L.S. 473, 480. But compare J. Healy, Medical Negligence: Common Law Perspectives (London 1999), 66, who states: “the Wednesbury analogy may well afford the most truthful account of the standard of care as currently assessed by English courts in medical negligence cases”.

91 Joyce v. Merton, Sutton and Wandsworth HA [1996] P.I.Q.R. P121, 153 per Hobhouse L.J.

92 [1998] A.C. 232, 242-243. The provenance of the test of logicality in tort is almost as obscure as that applied in administrative law. Plaintiff's counsel had argued that the opinion of the expert witness was not “logical or sensible”. The judge sympathised, but considered himself unable to substitute his view. Lord Browne-Wilkinson was simply addressing this point, but seemed to adopt logicality as a general test.

93 R. v. Chief Constable of Sussex, ex parte ITF Ltd. [1999] 2 A.C. 418.

94 Ibid., at pp. 432-433.

95 Ibid., at p. 433. Cf. R. v. North West Lancashire HA, ex parte A [2000] 1 W.L.R. 977, esp. at p. 995.

96 Ibid., at p. 453; Jowell and Lester, note 81 above, at p. 372.

97 Developing arguments made in “The Struggle for Simplicity in Administrative Law” in M. Taggart (ed.), Judicial Review of Administrative Action in the 1980s—Problems and Perspectives (Auckland 1986).

98 R. (Daly) v. Home Secretary [2001] 2 A.C. 532, at [32].

99 Ibid.

100 [1947] K.B. 223, 229.

101 R. (Association of British Civilian Internees: Far East Region) v. Secretary of State for Defence [2003] Q.B. 1397, at [35].

102 A similar modification can be seen in other areas, such as in relation to the lawfulness of jury awards. It was once said that if “the damages are so excessive that no twelve men could reasonably have given them” then the court should interfere (Praed v. Graham (1890) 24 Q.B.D. 53, 55 per Lord Esher; also Broome v. Cassell & Co. Ltd. [1972] A.C. 1027, 10651099 per Lord Hailsham). This was modified to whether “a reasonable jury [could] have thought this award was necessary …”: Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] Q.B. 670, 692; Kiam v. MGM Ltd. [2002] 3 W.L.R. 1036. In Clark v. Chief Constable of Cleveland Constabulary, The Times 13 May 1999 a majority of the Court of Appeal went further and altered a “disproportionate” award.

103 [1970] A.C. 1004, 1031.

104 [1995] 2 A.C. 633, 736.

105 Ibid.

106 [1991] 4 All E.R. 973, 987; [1992] 4 All E.R. 280 (C.A.).

107 [1995] 2 A.C. 633, 737 (emphasis added). Admittedly, in applying his general analysis to the facts, Lord Browne-Wilkinson occasionally appears to adopt a different approach, e.g., at p. 761. Commentators have had difficulty making sense of all of his comments: P. Cane, “Suing Public Authorities in Tort” (1996) 112 L.Q.R. 13, 13; D. Brodie, “Public authorities- negligence actions-control devices” (1988) 8 L.S. 1, 5.

108 See also the comments of Cane, ibid., at p. 17. His Lordship gave the example of running a school as a non-discretionary activity (ibid., at p. 739), whereas decisions of LEAs made more directly under statutory provisions would be discretionary (e.g., ibid., at pp. 760-761).

109 [1996] A.C. 923. Lord Slynn, adding another layer of confusion as to his position, agreed with his reasoning.

110 Ibid., at p. 936.

111 Ibid.

112 By contrast, the speech of Lord Hoffmann, which commanded majority support, follows the orthodox approach and views irrationality and the tortious standard of unreasonableness as entirely separate.

113 J. Convery, “Public or Private? Duty of Care in a Statutory Framework: Stovin v. Wise in the House of Lords” (1997) 60 M.L.R. 559, 567, also at p. 569.

114 Bugdaycay v. Secretary of State for the Home Department [1987] A.C. 514, 531 per Lord Bridge.

115 R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517, 514 per Bingham M.R. and at p. 539 per Simon Brown L.J.

116 R. v. Home Secretary, ex parte Brind [1991] 1 A.C. 696, 748-749 per Lord Bridge.

117 Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, at [48]; Silver v. United Kingdom (1983) 5 E.H.R.R. 439, at [89].

118 This point is explored in T.R. Hickman, “Tort Law, Public Authorities and the HRA 1998” in D. Fairgrieve, M. Andenas and J. Bell (eds.), Tort Liability of Public Authorities in Comparative Perspective (London 2002). See also T.R. Hickman, “Tort Law and Human Rights” (2002) 13 K.C.L.J. 253.

119 Smith & Grady v. United Kingdom (1999) 29 E.H.R.R. 439, at [138].

120 Although in some cases Convention obligations may be sufficiently protected by a test of reasonableness: Bensaid v. United Kingdom (2001) 33 E.H.R.R. 205, at [56]-[57]; Peck v. United Kingdom (2003) 36 E.H.R.R. 719, at [100]; cf. Hatton v. United Kingdom (2003) 37 E.H.R.R. 611, at [141].

121 [2001] 2 A.C. 532.

122 Ibid., at para. [26].

123 See M. Elliott, “The Human Rights Act 1998 and The Standard of Substantive Review” [2001] C.L.J. 301, 328-334.

124 [2001] 2 A.C. 532, at [30] per Lord Cooke.

125 By showing that they are a victim, that the defendant is a public authority and by complying with the relevant time limits (s. 7).

126 [2002] Q.B. 929, at [104].

127 Ibid., at para. [114]. The House of Lords subsequently interpreted both the law of nuisance and the Convention more restrictively: [2003] 3 W.L.R. 1603. In D v. East Berkshire Community NHS Trust [2004] 2 W.L.R. 58 the Court of Appeal departed from X (Minors) and drew tort law closer to Convention obligations. For an argument that full alignment of the duty of care is not desirable, see Hickman “Public Authorities” note 118 above.

128 For discussion of the duty aspect of the Osman test see Hickman, ibid., at pp. 39-44.

129 (199 8) 29 E.H.R.R. 245, at [116] (emphasis added); also Edwards v. United Kingdom (2002) 35 E.H.R.R. 19, at [55] and [61]-[64].

130 E v. United Kingdom [2003] 1 F.L.R. 348, esp. at [88] and [92]; Z v. United Kingdom (2001) 34 E.H.R.R. 97.

131 E, ibid., at para. [105], Z, ibid., at para. [77].

132 (1998) 29 E.H.R.R. 245, at [128].

133 [2003] H.R.L.R. 20, at [5] per Silber J.

134 Anufrijeva v. London Borough of Southwark [2003] F.C.R. 673, at [45].

135 Ibid. The approach of Newman J. in Anufrijeva, which was also indorsed by the Court of Appeal, envisaged that a breach would likely amount to a “flagrant and deliberate failure to act” and that “it will be rare for an error of judgment, inefficiency or maladminstration” to give rise to an infringement (see ibid., at [41]). This suggests that the standard will vary with context and might even approach Wednesbury in some contexts.

136 [2001] Fam. 348, at [35].

137 Ibid., at para. [38]. Positive conduct may require such an approach: Herczegfalvy v. Austria (1992) 15 E.H.R.R. 437, at [82]; Acmanne v. Belgium (1984) 40 D. & R. 241.

138 R. (Wilkinson) v. Broadmoor Special Hospital Authority [2002] 1 W.L.R. 419; R. (N) v. M [2003] 1 W.L.R. 562.

139 Ibid.

140 (199 8) 29 E.H.R.R. 245, at [116].

141 D v. East Berkshire NHS Trust [2004] 2 W.L.R. 58, at [71]. The court also remarked that the standard applied in TP and KM v. United Kingdom (2001) 34 E.H.R.R. 42 “approximates to that which would be appropriate when considering whether there had been a breach of a duty of care” (at para. [66]). However, the ECtHR treated TP and KM's case as a positive interference (taking a child into care) and applied a standard of necessity and proportionality. Advertence to administrative law, as we have seen, reveals the inaccuracy of the Court of Appeal's confident assertion that this can be equated to a reasonableness standard.

142 See text to note 92 above.

143 [1998] A.C. 232, 244.

144 [2003] H.R.L.R. 20, at [164] and [169]. See also R. (Bloggs 61) v. Secretary of State for the Home Department [2003] 1 W.L.R. 2724, at [63]-[65].

145 S v. Airedale NHS Trust, 22 August 2002, [2002] E.W.H.C. 1780, at [103]. With respect, his Lordship may have been wrong to apply a reasonableness test rather than a test of necessity to the exercise of this power, but his observation remains salient.

146 The concept of justiciability is not, in such terms, applied by the ECtHR. However, in related case law, in the contexts of failure to confer benefits, the Commission has held that the Convention does not require scrutiny of political questions, such as allegations relating to funding and policies in the field of public health, which the Commission has said are “matters for public and political debate” and “fall outside the scope of Article 2 and the provisions of the Convention” (Taylor v. United Kingdom App. No. 23412/94, 30 August 1994). Also in Scialacqua v. Italy (1998) E.H.R.R. C.D. 164 the Commission held that while there might be an obligation to fund some medical treatment essential to saving lives, it would not say that the state should provide an alternative more effective remedy as requested by the applicant. Cf. Re HIV Haemophilia Litigation (1990) 41 B.M.L.R. 171.

147 E.g., Hatton v. United Kingdom (2003) 37 E.H.R.R. 611, at [98].

148 (2001) 34 E.H.R.R. 1, at [97].

149 (20 0 3) 37 E.H.R.R. 611, at [98]. See also e.g., Lopez Ostra v. Spain (1994) 20 E.H.R.R. 277, at [51].

150 Ibid., at para. [141].

151 Ibid., especially at paras. [119] and [123].

152 See Sporrong v. Lonnroth (1982) 5 E.H.R.R. 35, at [69].

153 For other examples where such a test would be appropriate see Glaser v. United Kingdom (2001) 33 E.H.R.R. 1, at [66] (failure enforce contact orders); Guerra v. United Kingdom (1998) 26 E.H.R.R. 357, at [58] (failure to warn). Also see note 120 above.

154 [1995] 1 F.L.R. 1056.

155 Ibid, at p. 1065.

156 Ibid., at p. 1073.

157 Another example is provided by R. v. North West Lancashire HA, ex part A [2000] 1 WL.R. 977. In that case the Court of Appeal followed Ex parte B, although on the facts reached the opposite conclusion. However, Buxton L.J., at p. 998, rejected the analogy with Bolam apparently in the mistaken belief that if a body of medical opinion supported the funding of gender reassignment surgery the health authority would be compelled to provide it.

158 [2001] E.W.C.A. Civ. 331, at [26].

159 Ibid., at para. [6]. Woolf C.J. and Mance L.J. agreed with the judgment.

160 See especially the comments of Lord Hutton in Barrett [2001] A.C. 550, 591.

161 Z v. United Kingdom (2001) 34 E.H.R.R. 97.

162 It should be emphasised that neither the HRA nor the approach advocated in this article necessarily require the rejection of Lord Browne-Wilkinson's view; albeit it is believed desirable to do so.

163 See text to note 106 above.

164 T. Hickman, ‘‘Clark: The Demise of O'Reilly Completed?” [2000] J.R. 178.

165 D. Oliver, “Public Law Procedures and Remedies—Do We Need Them?” [2002] P.L. 91.

166 Clark v. University of Lincolnshire and Humberside [2000] 3 All E.R. 752.

167 See Hickman, note 164 above. The Court of Appeal in R. (Wilkinson) v. Broadmoor Hospital Authority [2002] 1 W.L.R. 419, in judicial review proceedings relating to compulsory medication under the Mental Health Act, 1983, recognised that the same question could have been raised under the HRA, in family proceedings, or in tort. Cross-examination of experts would only be allowed in the most exceptional of circumstances and cases relating to a patient's best interests should normally not be dealt with by the administrative court (also R. (N) v. M [2003] 1 F.L.R. 667; A v. A Health Authority [2002] Fam. 213). Where a decision relates to the welfare of children or incompetent adults the judge should also be a member of the Family Division.

168 One concern not raised by Lord Browne-Wilkinson is that that invoking ultra vires may lead to decisions being legally unravelled. It suffices to say that there are a number of important guards against the ill effects of invalidity. Finding conduct to be ultra vires does not necessitate it being legally invalidated or all its consequences unravelled, as Lord Browne- Wilkinson recognised in Boddington v. BTP [1999] 2 A.C. 143, 164. It is better that this is so than that the concept of ultra vires is not applied at all. The concern is also of relevance, but equally unfounded, under the HRA.

169 It is admitted that the approach advocated would require an additional layer of relativity be added to the law. Breach of duty in tort is said to be “always relative to the individual affected” (Bourhill v. Young [1943] A.C. 92, 108 per Lord Wright). This idea may be better seen as an element of the duty of care, rather than its breach, but if not it follows that a person with sufficient interest may claim a decision is unreasonable although it is no beach of duty in tort in relation to them. In this sense unreasonableness in administrative law, even in its most extreme formulation, may not be sufficient to satisfy the tortious test.