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Published online by Cambridge University Press: 03 February 2020
Ever since the Wednesbury decision in 1947, United Kingdom public law has been applying the concepts of ‘rationality’ and ‘reasonableness’ indistinguishably. Rationality has also been used as a ‘mega-ground of judicial review’, covering many other, distinct grounds of review. The main purpose of this article is to promote conceptual clarity in UK public law by highlighting the overlooked differences between reasonableness and rationality, indicating the nature of rationality as a distinct ground of judicial review and explaining why it should not be used as a mega-ground of review. It is argued that (i) reasonableness is in its essence a balancing and weighing test; (ii) the most accurate way of understanding rationality review in public law is to perceive it as ‘instrumental rationality’ or as a ‘suitability test’ which reviews the logical and causal connection between means and end; (iii) this ‘instrumental’ perception of rationality is already applied in UK public law as part of the proportionality test; (iv) rationality, unlike reasonableness, is not a weighing and balancing test; thus it is wrong to use the concepts of ‘reasonableness review’ and ‘rationality review’ indistinguishably; and (v) it is conceptually wrong and confusing to use rationality as a ‘mega-ground of review’.
My thanks are due to Luke Griffiths for his superb research assistance and for commenting on a previous draft of this article; to Faiza Ahmed for her excellent research assistance and her help in preparing the article for publication; and to an anonymous reviewer and the Israel Law Review editorial team for their exceptionally helpful comments and suggestions – and their kind patience. A research fellowship at the Jean Monnet Centre of Excellence, Trento University (Italy) enabled me to complete the first draft of the article in an ideal academic environment.
1 Craig, Paul P, Administrative Law (7th edn, Sweet & Maxwell 2012) 641Google Scholar; Craig, Paul P, ‘The Nature of Reasonableness Review’ (2013) 66 Current Legal Problems 131, 133CrossRefGoogle Scholar; Taggart, Michael, ‘Proportionality, Deference, Wednesbury’ (2008) 3 New Zealand Law Review 423, 425Google Scholar; Lord Carnwath, ‘From Rationality to Proportionality in the Modern Law’, paper given at the joint UCL-HKU conference ‘Judicial Review in a Changing Society’, Hong Kong University, 14 April 2014, 4; Clark v Nomura International Plc [2000] IRLR 766, [40]; Braganza v BP Shipping Ltd and Another [2015] UKSC 17, [29]; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (GCHQ); In Australia see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [25]–[30], but see the very brief, undeveloped assertion of French CJ that ‘distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable’: ibid [30]. For equating rationality with reasonableness in Canadian public law see Paul Daly, ‘Wednesbury's Reason and Structure’ [2011] Public Law 238, 242.
2 See Section 5.4 below.
3 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (Court of Appeal). In this case a cinema company was granted a licence by Wednesbury Corporation, the local authority of the market town of Wednesbury, to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. The cinema company argued that such a condition was unacceptable, and outside the power of Wednesbury Corporation to impose. The court held that the condition was not so unreasonable that no reasonable authority would ever consider imposing it. The concept of reasonableness had been applied in UK public law before the Wednesbury decision: see, for example, Kruse v Johnson [1898] 2 QB 91, 109 (in which Lord Russell referred to ‘the reasonable man’ and classified unreasonable decisions as decisions made ultra vires). Yet, Wednesbury is widely perceived as the beginning of a new era in UK public law.
4 Wednesbury (n 3) 234.
5 The need for this conceptual clarity has been nicely expressed by Michael Taggart who noted that ‘it is obvious that the very language that we administrative lawyers take for granted and use can be part of the problem, rather than part of the solution. In this area, words like Wednesbury unreasonableness … operate as symbols and their symbolism (and significance) is a product of time, place, and perspective. Anglo-Australasian administrative lawyers, it seems to me, are often divided by a common legal language. This makes it very difficult to communicate’: Taggart (n 1) 425.
6 For a more detailed discussion of these points, see Yossi Nehushtan, ‘The Non-Identical Twins in UK Public Law: Reasonableness and Proportionality’ (2017) 50 Israel Law Review 69, 70–77.
7 As termed by Craig (2012) (n 1) 562.
8 Kruse v Johnson (n 3); Craig (2012) (n 1) 646. In many cases pre-Wednesbury the court intervened simply on the grounds of relevancy or propriety of purpose, without making any formal linkage with reasonableness, thus perhaps implicitly acknowledging the unhelpfulness of ‘reasonableness in the umbrella sense’, or the unhelpfulness of ‘reasonableness’ generally: see, for example, R v Minister of Transport, ex parte HC Motor Works Ltd [1927] 2 KB 401.
9 Lord Greene stated that in administrative law an unreasonable decision ‘is so unreasonable that it might almost be described as being done in bad faith’: Wednesbury (n 3) 229. Acting in bad faith involves taking into consideration irrelevant considerations or acting for improper purposes, while being aware of that. Taking into consideration irrelevant considerations or acting for improper purposes are obviously independent and different grounds of judicial review: see also Craig (2012) (n 1) 562, 646.
10 Braganza (n 1) [42]. In this private law case, the Supreme Court reviewed the reasonableness of a decision made by an employer that an employee committed suicide and did not die in a work-related accident. According to the employment contract, the employee's widow was not entitled to receive compensation in the event of suicide. The Court stated that the standard required when reviewing a contractual decision is akin to that adopted for judicial review of administrative action.
11 For a general observation that the Wednesbury test still governs UK public law see Le Sueur, A, ‘The Rise and Ruin of Unreasonableness (2005) 10 Judicial Review 32CrossRefGoogle Scholar; Daly (n 1).
12 Braganza (n 1) [42]. All five judges agreed that ‘it is difficult to treat as rational the product of a process of reasoning if that process is flawed by the taking into consideration of an irrelevant matter or the failure to consider a relevant matter’: ibid [53], [103].
13 See, for example, R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386; Bromley London Borough Council v Greater London Council [1983] 1 AC 768.
14 Wednesbury (n 3) 233–34.
15 ibid 234.
16 Lord Greene stated that ‘it is true to say that, if a decision … is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere … but to prove a case of that kind would require something overwhelming’: ibid 230.
17 GCHQ (n 1) 410. This case saw the court (the House of Lords) deciding, for the first time, that prerogative powers are also subject to judicial review, including reasonableness review. The administrative decision in that case was to prohibit employees of the Government Communications Headquarters (GCHQ) from joining a trade union.
18 R v Secretary of State for the Environment, ex parte Nottingham City Council [1985] UKHL 8; [1986] AC 240, 247
19 See also Timothy Endicott's view that Wednesbury rationality, if taken seriously, means that an administrative authority must be mad if it made an irrational decision: Endicott, Timothy, Administrative Law (3rd edn, Oxford University Press 2015) 241CrossRefGoogle Scholar. Endicott is right on this point, and as far as within the Wednesbury context ‘rationality’ is equated with reasonableness.
20 Craig (2012) (n 1) 646. In Australia see Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 42 (in which it was emphasised that reasonableness, as a ground of review, ‘must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power’).
21 Craig, Paul P, ‘Proportionality, Rationality and Review’ (2010) 2 New Zealand Law Review 265, 273Google Scholar. See also Jeffrey Jowell and Anthony Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] Public Law 368, 372.
22 For an in-depth analysis of the doctrine of deference in UK public law see Daly, Paul, A Theory of Deference in Administrative Law: Bias, Application and Scope (Cambridge University Press 2012)CrossRefGoogle Scholar.
23 Jowell and Lester (n 21) 372.
24 Craig (2012) (n 1) 647; Craig (2013) (n 1) 162; R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532, 549.
25 Braganza (n 1) [24].
26 Lord Cooke, for example, one of the prominent critics of Wednesbury reasonableness, suggested that an unreasonable decision is one that is ‘beyond the limits of reason’: Cooke, Robin, ‘The Struggle for Simplicity in Administrative Law’, in Taggart, Michael (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University Press 1986) 1, 13–16Google Scholar; see also New Zealand Fishing Industry Association Inc v Minister of Agriculture & Fisheries [1988] 1 NZLR 544 (CA) 554.
27 Craig (n 21) 284–85.
28 This is not to say that there were no earlier attempts to reconstruct Wednesbury reasonableness. Within these attempts some authors also referred to reasonableness as a balancing test, although always very briefly or by implication. Daly, for example, in his helpful and complex analysis of what reasonableness means, suggested that ‘review of an impugned decision for unreasonableness inevitably involves a reviewing court in a consideration of the merits of the impugned decision’ and that disproportionality is in fact one of the indicia of unreasonableness: Daly (n 1) 243, 258. Mark Elliott also briefly referred to reasonableness as a balancing test and indicated that recent judicial decisions did the same: Elliott, Mark, ‘The Human Rights Act 1998 and the Standard of Substantive Review’ (2001) 60(1) Cambridge Law Journal 301CrossRefGoogle Scholar.
29 Craig (2013) (n 1) 132.
30 ibid 132, 136.
31 Wednesbury (n 3) 233–34.
32 Craig (2013) (n 1) 136.
33 ibid 142–48.
34 Daly (n 1) 240.
35 Pham v Secretary of State for the Home Department [2015] UKSC 19, [114].
36 For a recent and helpful description of reasonableness in UK public law, which refers to only a few cases in which reasonableness was explicitly understood as a balancing test, see Jowell, Jeffrey, ‘Proportionality and Unreasonableness: Neither Merger nor Takeover’ in Wilberg, Hanna and Elliott, Mark (eds), The Scope and Intensity of Substantive Judicial Review: Traversing Taggart's Rainbow (Hart 2015) 41, 52–53Google Scholar.
37 For a more detailed argument about reasonableness as a balancing test, see Craig (2013) (n 1) 142–48.
38 See n 40 below for arguments against having proportionality as a general ground of review. For the reasons why the assumption that proportionality prescribes inappropriate judicial activism is misguided, see Nehushtan (n 6) 74–84. The reluctance to apply proportionality as a general ground of review is part of a broader approach of judicial deference which is often applied by UK courts in reviewing the legality of administrative acts and decisions. For an in-depth analysis of the doctrine of deference in UK public law see Daly (n 22).
39 For offering a different classification, which focuses on the importance of either rights or interests, see Mark Elliott, ‘From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification’ in Wilberg and Elliott (n 36) 61.
40 For arguments for having proportionality as a general ground of review see Craig (n 21); Hunt, Murray, ‘Against Bifurcation’ in Dyzenhaus, David, Hunt, Murray and Huscroft, Grant (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart 2009) 99Google Scholar. For arguments against see Taggart, Michael, ‘Reinventing Administrative Law’ in Bamforth, Nicholas and Leyland, Peter (eds), Public Law in a Multi-Layered Constitution (Hart 2003) 311Google Scholar; Taggart (n 1) 423; Hickman, Tom, Public Law after the Human Rights Act (Hart 2010) Ch 9Google Scholar; Hickman, Tom, ‘Problems for Proportionality’ (2010) 2 New Zealand Law Review 303Google Scholar; King, Jeff, ‘Proportionality: A Halfway House’ (2010) 2 New Zealand Law Review 327Google Scholar; Knight, Dean R, ‘Calibrating the Rainbow of Judicial Review: Recognizing Variable Intensity’ (2010) 2 New Zealand Law Review 393Google Scholar; Sales, Philip, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 Law Quarterly Review 223Google Scholar.
41 This four-stage test was adopted and applied in Bank Mellat v HM Treasury [2011] EWCA Civ 1; [2011] 2 All ER 802, [68]–[76]. For recent, excellent and in-depth discussion of proportionality in public law see Barak, Aharon, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012)CrossRefGoogle Scholar; Cohen-Eliya, Moshe and Porat, Iddo, Proportionality and Constitutional Culture (Cambridge University Press 2013)CrossRefGoogle Scholar; Huscroft, Grant, Miller, Bradley W and Webber, Gregoire CN (eds), Proportionality and the Rule of Law (Cambridge University Press 2014)CrossRefGoogle Scholar.
42 Jowell (n 36) 51. See also R v Parliamentary Commissioner for Administration, ex parte Balchin (No 1) [1997] COD 146 (QB), [27]; R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, [65].
43 See, for example, a leaflet written by the Public Law Project, an NGO which aims to improve access to public law remedies and to educate the general public in matters of public law in the UK, where it is said that a decision must be demonstrably unreasonable as to constitute irrationality or perversity: ‘A Brief Guide to the Grounds of Judicial Review’, The Public Law Project, 2006, https://publiclawproject.org.uk/wp-content/uploads/data/resources/113/PLP_2006_Guide_Grounds_JR.pdf.
44 GCHQ (n 1) 401–11; Masterman, Roger and Murray, Colin, Exploring Constitutional and Administrative Law (Pearson 2013) 528Google Scholar; Bradley, Anthony W and Ewing, Keith D, Constitutional and Administrative Law (15th edn, Pearson 2011) 679Google Scholar.
45 Craig (2012) (n 1) 648, fn 26; Balchin (n 42) [27]; Coughlan (n 42) [65].
46 Craig (2012) (n 1) 648, fn 28.
47 Craig (n 21) 274–76.
48 R v Lord Saville of Newdigate, ex parte A [1999] 4 All ER 860, [33]; R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin), [35].
49 Kalberg, Stephen, ‘Max Weber's Types of Rationality: Cornerstones for the Analysis of Rationalization Processes in History’ (1980) 85 American Journal of Sociology 1145, 1151–59CrossRefGoogle Scholar.
50 For a recent and helpful discussion about the meaning of rationality, see Kiesewetter, Benjamin, The Normativity of Rationality (Oxford University Press 2017)CrossRefGoogle Scholar.
51 See text at n 43.
52 R (on the application of Evans) and Another v Attorney General [2015] UKSC 21.
53 ibid [91], [129].
54 ibid [88].
55 Endicott (n 19) 241.
56 Hayes v Willoughby [2013] 1 WLR 935.
57 ibid [14].
58 Braganza (n 1) [29].
59 For a more detailed discussion of this argument, see Nehushtan, Yossi, ‘The Unreasonable Perception of Reasonableness in UK and Australian Public Law’ (2019) 3 Indian Journal of Constitutional and Administrative Law 83Google Scholar.
60 Hayes (n 56).
61 R (on the application of Gallaher Group Ltd and Others) v The Competition and Markets Authority [2018] UKSC 25.
62 Hayes (n 56) [14].
63 For equating irrationality with capriciousness see also Clark v Nomura International Plc (n 1) [40].
64 It must be noted that Lord Sumption did not mean to equate rationality with reasonableness. On the contrary, before describing what rationality is (as described above), Lord Sumption stated that ‘rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a person's thoughts or intentions … A test of rationality, by comparison, applies a minimum objective standard to the relevant person's mental processes’: Hayes (n 56) [14]. Yet, even if Lord Sumption did not mean to apply the Wednesbury test here, the problem of not defining what ‘defiance of logic’ means still remains.
65 Matadeen and Others v MGC Pointu and Others (Mauritius) [1998] UKPC 9; (1999) 1 AC 98, [9].
66 A & Others v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh).
67 ibid [132].
68 Gallaher (n 61).
69 ibid [27], [43], [44] (Lord Carnwath); and [55] (Lord Sumption).
70 ibid [58].
71 Kalberg (n 49).
72 Gallaher (n 61) [55].
73 ibid [50].
74 It is interesting to note that a few weeks after Gallaher was decided by the Supreme Court, the Court handed down an important decision within the context of art 14 ECHR: McLaughlin, Re Judicial Review (Northern Ireland) (Rev 1) [2018] UKSC 48. In this equality-related case, the term ‘rationality’ was mentioned only once; it was not developed or applied to the circumstances of the case, and did not form any part of the Supreme Court's decision.
75 Gallaher (n 61) [55].
76 Kalberg (n 49). For in-depth discussion of this type of rationality see Niko Kolodny and John Brunero, ‘Instrumental Rationality’, Stanford Encyclopedia of Philosophy, 2 November 2018, https://plato.stanford.edu/entries/rationality-instrumental.
77 Bank Mellat (n 41) [68]–[76] (Lord Reed).
78 See, for example, in ECtHR, Reiner v Bulgaria, App no 46343/99, 23 May 2006, para 122 (‘It follows from the principle of proportionality that a restriction on the right to leave one's country on grounds of unpaid debt can only be justified as long as it serves its aim – recovering the debt’).
79 Kennedy v Charity Commission [2014] UKSC 20, [54].
80 Pham (n 35) [60], [94], [109].
81 R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115; Craig (2012) (n 1) 643; Le Sueur (n 11) 39–40. For a slightly different way of describing the ‘rainbow of judicial review’ see Taggart (n 1) 452.
82 For a helpful discussion of these normative issues see Wilberg and Elliott (n 36).