1 Introduction

1.1 What is substantive review?

It is classically said that judicial review is concerned with procedure, not substance: with the way in which decisions may be taken, not with what decisions may be reached. Hence the traditionally process-oriented nature of judicial review. If we consider natural justice (fair hearings, bias), relevant considerations in administrative decision making, procedural legitimate expectations etc.; it is easy to conclude that judicial review is traditionally about process – making sure decisions are made in the right manner. This process-orientated conception of JR finds its justification in the distinction between appeal and review – by confining itself to the decision making process, the court avoids interfering with the merits od a decision, thereby reducing the scope for judicial usurpation of the executive function.

But has judicial review ever really lived up to this ideal (if indeed it is an ideal)? Consider, for example, the courts’ willingness to engage in relatively interventionist review in fields such as:

• Improper purposes: R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386

• Statutory interpretation: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (and the line of case law generated by Anisminic)

• Application of statutory criteria to facts: Khawaja v Secretary of State for the Home Department [1984] AC 74; R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557

The law of JR has clearly not wholly avoided examination of the outcomes of the decision-making process. Further than propriety of purpose and questions of fit, the test of reasonableness has long imposed a substantive as opposed to procedural limitation on decision makers. Substantive review is review of the decision itself, but this does not necessarily amount to merits review.

When we look at outcomes of the decision making process by engaging in substantive review, some important questions arise. What are the criteria we should measure outcomes against – rights, values? What standard should we hold them to in order to decide on their legality –correctness, proportionality, or reasonableness? There is always also always the risk of engaging in merits review through the ‘back door’.

Furthermore, any determination as a result of substantive review naturally attempts to close off unlawful outcomes – but this might have separation of powers implications, particularly in binary cases. It involves an inroad into the substantive options available to the decision maker.

1.2 The orthodox test

There are two main ways in which we can talk about substantive review – proportionality and reasonableness. The latter is the background to the former.

The unreasonableness test was classically laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 at 229 and 234:

The case revolved around the statutory power granted to local authorities by the Sunday Entertainments Act 1932. Local authorities had the power under the act to authorise cinema opening on Sundays subject to whatever conditions they thought fit to impose. They imposed such a condition – no Under-15s would be able to visit the cinema on Sundays.

Held, Lord Greene MR: The effect of the legislation is not to set up the court as arbiter of what is the right decision – as long as the local authority was acting within the ‘four corners of its jurisdiction’, it is the local authority’s decision to make and the court cannot interfere. We can see right away that underlying this decision is the separation of powers – it is a conscious decision of the court not to intrude on the decision-making remit of the executive.

Greene suggests that there are two categories of unreasonableness – which can broadly be described as process-oriented and substantive:

• Process-oriented unreasonableness:

  • The decision maker must direct himself properly in law;

  • Consider relevant considerations;

  • Exclude irrelevant matters.

• Substantive unreasonableness:

  • Decisions which are wholly absurd – e.g. dismissing the red-haired teacher because of her red-hair;

  • Where there is evidence of bad faith;

  • Evidence of extraneous considerations.

Lord Greene says though that ‘all these things run into one another’. One of the difficulties here then is that when people refer to ‘unreasonableness’ they might be talking about these procedural forms that would now fall under other grounds of judicial review. Our concern is about substantive unreasonableness.

In terms of this substantive unreasonableness, the orthodox formulation was stated as:

… something so absurd that no sensible person could ever dream that it lay within the powers of the authority … [A] conclusion so unreasonable that no reasonable authority could ever have come to it

Compare Lord Diplock’s “irrationality” test, as set out in Council of Civil Service Unions v. Minister for the Civil Service (The GCHQ Case) [1985] AC 374 at 410:

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ … It 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 could have arrived at it.

The orthodox formulation then clearly classifies an unreasonable decision as one which is truly exceptional. There is a question of why the level of unreasonableness is pitched so high.

2 Unreasonableness

2.1 Wednesbury – appearance and reality

Are the Wednesbury and GCHQ tests misleading? Consider the view of Wade and Forsyth:

Taken by itself, the standard of unreasonableness is nominally pitched very high … It might seem from [the language of the tests] … that the deliberate decisions of ministers and other responsible public authorities could almost never be found wanting. But … there are abundant instances of legally unreasonable...

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