. 124
( 155 .)


di¬erent grounds. Simon Brown LJ dissented, on the basis that it was ˜impossi-
ble to say that the councillors must shut their minds to the cruelty argument™.
(The courts™ approaches in Fewings may be contrasted with that of the Court of
Session in Adams v Scottish Ministers 2004 SC 665, above, pp 206“8, concern-
ing very similar subject matter, albeit in the context of a challenge to an Act of
the Scottish Parliament rather than to a resolution of a local authority.)
The reasoning in Pad¬eld and Fewings was closely bound up with the
statutes that conferred decision-making power on the minister and on the local
authority in those cases. But what if there is no such statute? What if the
public authority is purporting to exercise a prerogative, rather than a statutory
power, for example? R v Secretary of State for the Home Department, ex p Fire
Brigades Union [1995] 2 AC 513 shows that Pad¬eld illegality may apply also in
this context. If a minister purports to exercise a prerogative power improperly
he may be acting illegally, just as he would be were he to exercise a statutory
power improperly. In ex p Fire Brigades Union a majority of the House of Lords
held that the Home Secretary had acted unlawfully in seeking to use his pre-
rogative powers to e¬ect a change in the system of criminal injuries compensa-
tion, which had been approved by Parliament.
Three further observations may be made on relevant and irrelevant consider-
ations. First, a consideration is legally relevant only if it is something that the
decision-maker is obliged (on a right understanding of any applicable statute)
to take into account and is not merely a factor which may properly be taken into
account (CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, 183, approved
on this point by the House of Lords in Re Findlay [1985] AC 318, 333). Secondly,
the weight to be attached to the relevant considerations is a matter for the judge-
ment of the decision-maker “ subject to Wednesbury unreasonableness (on
which see below): Tesco Stores Ltd v Secretary of State for the Environment [1995]
1 WLR 759, 764, 780; see further Herling, ˜Weight in discretionary decision-
making™ (1999) 19 OJLS 583. Thirdly, irrelevant considerations and improper
purposes overlap and may often be more or less alternative ways of character-
ising the same unlawful action. It has been remarked that ˜When a decision-
maker pursues a purpose outside of the four corners of his powers, he mostly
does so by taking an “irrelevant consideration” into account™ (S de Smith, Lord
Woolf and J Jowell, Judicial Review of Administrative Action (1995), para 6“063).
(3) Unlawful delegation. A public body on which power is conferred
by statute may not divest itself of the power by delegating it to some other
body, unless such delegation is expressly or impliedly authorised by the statute
(see eg, H Lavender & Son Ltd v Minister of Housing and Local Government
[1970] 1 WLR 1231). The non-delegation rule is quali¬ed in an important “
and controversial “ way by the Deregulation and Contracting Out Act 1994,
667 The courts: judicial review and liability

section 69, which authorises ministers to delegate any of a wide range of
statutory functions vested in themselves to persons outside government (see
Freedland [1995] PL 21). The rule against delegation is to be contrasted with
the Carltona principle (above, p 461) by which decision-making may be
devolved to subordinate o¬cers within the organisation of the authority
entrusted with the power.
(4) Fettering of discretion. When a statute grants a discretionary power to
a public authority, it is to be inferred that the authority must not do anything
to constrain or fetter its discretion so that it is prevented from exercising the dis-
cretion in the manner, and with respect to all the matters, contemplated by the
statute. An authority must not, for instance, make a contract or adopt a policy
that nulli¬es or abridges its discretion, so defeating the purpose for which the
discretion was given.
That said, it is lawful (and common practice) for an authority to adopt
a policy regarding the exercise of a discretionary power and indeed it may be
helpful to persons a¬ected and make for consistency if this is done. Any such
policy must, however, be in conformity with the objects of the statute and must
not be applied in an in¬‚exible way and without consideration of individual
circumstances. (See British Oxygen Co Ltd v Board of Trade [1971] AC 610;
Re Findlay [1985] AC 318.)

(b) Irrationality
It is often said that an administrative decision may be vitiated by ˜unreason-
ableness™. Sometimes this word is used loosely ˜as a general description of
the things that must not be done™ (per Lord Greene MR in the Wednesbury
case, below), including action that is more properly described as illegal.
Unreasonableness is, however, a distinct ground for challenging a decision, but
then it bears a stricter, technical sense. In Associated Provincial Picture Houses
Ltd v Wednesbury Corpn [1948] 1 KB 223, 230, Lord Greene MR said:

It is true to say that, if a decision on a competent matter is so unreasonable that no rea-
sonable authority could ever have come to it, then the courts can interfere. That, I think, is
quite right; but to prove a case of that kind would require something overwhelming . . . [I]t
must be proved to be unreasonable in the sense that the court considers it to be a decision
that no reasonable body could have come to. It is not what the court considers unreason-
able, a different thing altogether.

Lord Greene gave the example, suggested in an earlier case, of a red-haired
teacher, dismissed because she had red hair; in other words, ˜something so
absurd that no sensible person could ever dream that it lay within the powers of
the authority™.
The courts have repeatedly emphasised that only a high degree of unreason-
ableness, commonly labelled ˜irrationality™, allows a court to intervene. Lord
668 British Government and the Constitution

Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, 410 said that:

what can now be succinctly referred to as ˜Wednesbury unreasonableness™ . . . 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 to be decided could have
arrived at it.

Evidently the justi¬cation for judicial intervention on this ground is meant to
be an exacting one. In R v Secretary of State for the Home Department, ex p Brind
[1991] 1 AC 696, 757“8, Lord Ackner said:

This standard of unreasonableness, often referred to as ˜the irrationality test™, has been
criticised as being too high. But it has to be expressed in terms that confine the jurisdiction
exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction. Where
Parliament has given to a minister or other person or body a discretion, the court™s jurisdic-
tion is limited, in the absence of a statutory right of appeal, to the supervision of the exer-
cise of that discretionary power, so as to ensure that it has been exercised lawfully. It would
be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the
merits and on that basis to quash the decision. If no reasonable minister properly directing
himself would have reached the impugned decision, the minister has exceeded his powers
and thus acted unlawfully and the court in the exercise of its supervisory role will quash that
decision. Such a decision is correctly, though unattractively, described as a ˜perverse™ deci-
sion. To seek the court™s intervention on the basis that the correct or objectively reasonable
decision is other than the decision which the minister has made is to invite the court to adju-
dicate as if Parliament had provided a right of appeal against the decision “ that is, to invite
an abuse of power by the judiciary.

˜Perverse™, ˜irrational™, ˜absurd™: so high a degree of folly appears to be
demanded by the Wednesbury principle that one might doubt that any public
authority would ever succeed in attaining it. The standard is less luridly
expressed in saying that a decision is Wednesbury unreasonable if it is ˜beyond
the range of responses open to a reasonable decision-maker™ (R v Ministry of
Defence, ex p Smith [1996] QB 517, 554), and we arrive at the ˜simple test™
of ˜whether the decision in question was one which a reasonable authority
could reach™ (Lord Cooke of Thorndon in R v Chief Constable of Sussex,
ex p International Trader™s Ferry Ltd [1999] 2 AC 418, 452). The applicable
standard is elucidated by Lord Woolf in R v North and East Devon Health
Authority, ex p Coughlan [2001] QB 213, para 65, as follows:

Rationality, as it has developed in modern public law, has two faces: one is the barely known
decision which simply defies comprehension; the other is a decision which can be seen to
have proceeded by flawed logic (though this can often be equally well allocated to the intru-
sion of an irrelevant factor).
669 The courts: judicial review and liability

At all events the argument of Wednesbury unreasonableness is often urged and
the test is not uncommonly found to be satis¬ed.
(See generally Lord Irvine, ˜Judges and decision-makers: the theory and
practice of Wednesbury review™ [1996] PL 59; Sir John Laws, ˜Wednesbury™, in
C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord (1998).)

West Glamorgan County Council v Rafferty [1987] 1 WLR 457 (CA)
The administrative decision that was challenged in this case was not the exercise
of a statutory power but a decision by a local authority to evict squatters from its
land. Under section 6 of the Caravan Sites Act 1968 the county council was under
a duty to provide adequate accommodation in its area for gypsies and their car-
avans. It had failed to do so and was in breach of its statutory duty. There being
no land in West Glamorgan on which gypsies could lawfully encamp, a number
of them stationed their caravans on land belonging to the county council, so
becoming trespassers on the land. The council commenced legal proceedings for
the eviction of the gypsies. One of them applied for judicial review of the
council™s decision to institute proceedings. Kennedy J held that, having regard to
the council™s breach of statutory duty, its decision to evict the gypsy families
from its land was in all the circumstances a decision which no reasonable author-
ity could have made, and he granted an order quashing the decision.
On appeal by the county council, the Court of Appeal recognised that there
were factors telling in favour of the decision to evict the gypsies; for instance,
a scheme for redevelopment of the site was being held up and the unregulated
presence of the gypsies was causing nuisance and some damage to neighbour-
ing occupiers. On the other hand, there were factors telling against the decision;
for instance it appeared that the presence on the site of many of those to be
evicted was caused by the council™s breach of duty, there was no other site in the
county to which the gypsies could lawfully go, and eviction would cause sub-
stantial hardship to the gypsies and to those to whom the burden of receiving
them would be transferred. The court considered these and other circumstances
telling for or against eviction and took note of the fact that it would have been
practicable for the council, while seeking possession, to o¬er to allow the cara-
vans to remain on a designated part of the site for a period of time “ but this
alternative had not been considered. The court concluded that the factors
against eviction had preponderant weight:

Ralph Gibson LJ: . . . [I]t is clear to me that the question to be answered by reference to the
factors discussed above could only reasonably be answered against eviction, if eviction was
to be carried out with no provision for alternative accommodation, but that by itself is not
enough to justify the decision of Kennedy J. Reasonable men and women can ˜perfectly rea-
sonably come to opposite conclusions on the same set of facts without forfeiting their title
to be regarded as reasonable™: per Lord Hailsham of St Marylebone LC in Re W (An Infant)
[1971] AC 682, 700.
670 British Government and the Constitution

The question is whether . . . the decision of the plaintiffs must be described as perverse
or as revealing ˜unreasonableness verging on an absurdity™: see R v Hillingdon London
Borough Council, ex parte Puhlhofer [1986] AC 484, 518D. I have found the decision difficult
but, in the end, I am driven to the same conclusion as that reached by Kennedy J for the fol-
lowing reasons. The court is not, as I understand the law, precluded from finding a decision
to be void for unreasonableness merely because there are admissible factors on both sides
of the question. If the weight of the factors against eviction must be recognised by a rea-
sonable council, properly aware of its duties and its powers, to be overwhelming, then a
decision the other way cannot be upheld if challenged. The decision on eviction was a deci-
sion which required the weighing of the factors according to the personal judgement of the
councillors but the law does not permit complete freedom of choice or assessment because
legal duty must be given proper weight.
The continuing breach of duty by the plaintiffs under section 6 of the Act of 1968 to ˜gipsies
residing in or resorting to™ the area of West Glamorgan does not in law preclude the right of
the plaintiffs to recover possession of any land occupied by the trespassing gipsies, but that
does not remove that continuing breach of duty from the balance or reduce its weight as a
factor. The reasonable council in the view of the law is required to recognise its own breach
of legal duty for what it is and to recognise the consequences of that breach of legal duty
for what they are. The reasonable council, accordingly, was not in my judgement free to treat
the interference with the intended reclamation and redevelopment of this site, for such
period of time as would have resulted from the holding up of complete eviction from the
entire site while temporary accommodation was provided elsewhere, as outweighing the
effects of eviction on the gipsies then present and on those to whom the impact of tres-
passing by gipsies would necessarily be transferred. The decision is only explicable to me as
one made by a council which was either not thinking of its powers and duties under law or
was by some error mistaken as to the nature and extent of those powers and duties.

Decisions of ministers, too, have from time to time been found to be tainted
by irrationality and set aside on this ground. In R (Wagsta¬) v Secretary of State
for Health [2001] 1 WLR 292 the Secretary of State had set up an independent
inquiry (under section 2 of the National Health Service Act 1977) into issues
arising from the conviction of Dr Shipman for the murder of ¬fteen of his
patients. The minister having decided that the inquiry should be held in private,
the families and friends of victims murdered or suspected of having been mur-
dered by Dr Shipman sought judicial review of that decision. The Divisional
Court identi¬ed a number of factors that militated in favour of a full public
inquiry, including the expressed wishes of the families, the number of deaths
that had occurred, an apparent breakdown in the checks and controls that
might have prevented them, the need to restore public con¬dence in the
National Health Service, and the fact that a public inquiry would be more
e¬ective in eliciting relevant and reliable evidence. These factors, in the view of
the court, far outweighed the considerations that had led the minister to prefer
a private hearing, and the court was ˜driven to conclude™ that his decision was
671 The courts: judicial review and liability

irrational. (The court was also of the opinion that the minister™s decision was
not in accord with the right to freedom of expression “ including a right to
receive information “ a¬rmed by Article 10 of the European Convention on
Human Rights, albeit that Article 10 had then not yet been given formal e¬ect
by the Human Rights Act 1998.)
For another instance of a minister™s decision failing to satisfy the requirement
of rationality see R v British Coal Corporation, ex p Vardy, below p 688.
Wednesbury unreasonableness or irrationality is a mechanism of judicial
control which is not appropriately applied to every kind of administrative deci-
sion. As Lord Phillips MR observed in R (Asif Javed) v Secretary of State for the
Home Department [2002] QB 129 at [49]: ˜The extent to which the exercise of a
statutory power is in practice open to judicial review on the ground of irra-
tionality will depend critically on the nature and purpose of the enabling legis-
lation™. In R v Ministry of Defence, ex p Smith [1996] QB 517, 554, Sir Thomas
Bingham warned of the caution demanded in applying the irrationality test to
decisions of a ˜policy-laden™ nature:

The greater the policy content of a decision, and the more remote the subject matter of
a decision from ordinary judicial experience, the more hesitant the court must necessarily be
in holding a decision to be irrational.

The House of Lords had earlier accepted this restriction of review for irra-
tionality in Nottinghamshire County Council v Secretary of State for the
Environment [1986] AC 240 and R v Secretary of State for the Environment, ex p
Hammersmith London Borough Council [1991] 1 AC 521. Both cases concerned
decisions of the Secretary of State in matters of local government ¬nance, and
in each of them the decision had been presented to the House of Commons for
approval, as required by the enabling Act, and had been approved by a¬rmative
resolution of that House. In each case a challenge to the decision on the ground
of irrationality was dismissed. Lord Bridge in the Hammersmith case expressed
the principle of both cases in saying (at p 597):

The formulation and the implementation of national economic policy are matters depending
essentially on political judgement. The decisions which shape them are for politicians to take
and it is in the political forum of the House of Commons that they are properly to be debated
and approved or disapproved on their merits. If the decisions have been taken in good faith
within the four corners of the Act, the merits of the policy underlying the decisions are not


. 124
( 155 .)