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FRONT LINE FIRST-LAW

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To local government lawyers, ...
To local government lawyers,

the town of Wednesbury is of vital significance. For the November 1947 decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 set a benchmark in council decision-making by characterising an unreasonable decision as one that 'no reasonable body could have come to'. And 'Wednesbury unreasonableness' was referred to by Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [1985] A.C. 37 as applying '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'.

But what of Wednesbury now human rights are in town? On 8 December 2000 in R (On the application of Mahmood) v. The Secretary of State for the Home Department [2001] 3 L.G.L.R. 23, the court took the view that where a fundamental right is engaged, the decision maker will be required 'to demonstrate either that his action does not in truth interfere with the right, or if it does, that there exist considerations which may reasonably be accepted as amounting to a substantial justification for the interference'. While in a human rights case this approach is to be followed, this 'and the basic Wednesbury rule are by no means hermetically sealed one from the other'.

On 24 April and 23 May 2001 in R v. Secretary of State for the Home Department, ex parte Daly, the House of Lords approved the 'general tenor' of the observations in Mahmood. Lord Steyn pointed out that while there is an overlap between traditional grounds of review and proportionality, the intensity of review is somewhat greater in the latter case. Proportionality may require a court to assess the balance struck by the decision-maker 'not merely whether it is within the range of rational or reasonable decisions'. Proportionality may also go further than traditional review in that it may direct attention 'to the relative weight accorded to interests and considerations'. And as the 'gays in the military' case -Smith and Grady v UK (1999) 29 EHRR 493

- demonstrated: 'The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts.'

Lord Steyn in Daly approved the observation in Mahmood 'that the intensity of review in a public law case will depend on the subject matter in hand'. So as principles from Wednesbury cross-fertilise with those from Strasbourg, reasonableness will increasingly gain a sense of proportion.

Nicholas Dobson

Partner, Head of local government law,

Pinsent Curtis Biddle

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