Engaging Unreasonableness and Proportionality as Standards of Review in England, India and Sri Lanka
| Jurisdiction | South Africa |
| Author | Shivaji Felix |
| Date | 15 August 2019 |
| Citation | 2006 Acta Juridica 95 |
| Published date | 15 August 2019 |
| Pages | 95-116 |
Engaging Unreasonableness and
Proportionality as Standards of Review in
England, India and Sri Lanka
SHIVAJI FELIX*
Attorney-at-Law, Sri Lanka
I INTRODUCTION
The purpose of this article is to examine the extent to which the twin
concepts of unreasonableness and proportionality have been fused and
whether they provide an adequate rubric for the judicial review of
irrationality in administrative law in England, India and Sri Lanka. The
jurisdictions surveyed are heirs to a common law tradition. However, in
England contemporary judicial review has a statutory underpinning
1
whilst in the other two jurisdictions it has a constitutional foundation.
2
Nevertheless, in all three jurisdictions the grounds of review have been
developed by the courts on an incremental basis drawing inspiration from
the common law
3
and/or statutory
4
or constitutional human rights
postulates.
5
For over 50 years the Wednesbury principle, derived from the decision
of Lord Greene MR in the celebrated case of Associated Provincial Picture
Houses Ltd v Wednesbury Corporation,
6
has had a profound influence on
English administrative law. The recent decision of the House of Lords in
Daly
7
seems to indicate that the days of Wednesbury review are numbered.
In fact, Lord Cooke of Thorndon prophesied that ‘the day will come
* Attorney-at-Law of the Supreme Court of Sri Lanka; Honorary Research Fellow,
Faculty of Laws, University College London; Visiting Lecturer, Faculty of Law, University of
Colombo; Visiting Lecturer, Department of Legal Studies, Open University of Sri Lanka. I
thank Professor Jeffrey Jowell QC for his comments on an earlier draft of this article – the usual
caveat applies.
1
See Supreme Court Act 1981.
2
See eg articles 32, 136, 226 (which is pivotal for judicial review) and article 227 of the
Indian Constitution; articles 140 and 154 P (4) of the Constitution of the Democratic Socialist
Republic of Sri Lanka for the constitutional foundations of judicial review.
3
For an assessment of the common law developments in human rights jurisprudence in
England see eg Murray Hunt Using Human Rights Law in English Courts (1998).
4
See eg Human Rights Act 1998 (United Kingdom).
5
See eg article 136 and Part III of the Constitution of India; Chapter III of the
Constitution of the Democratic Socialist Republic of Sri Lanka.
6
7
R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26; [2001] 3
AllER 433.
95
2006 Acta Juridica 95
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when it will be more widely recognised that the Wednesbury case was an
unfortunately retrogressive decision in English administrative law’.
8
In ProLife Alliance
9
the House of Lords does appear to have granted the
Wednesbury principle a reprieve. However, in A v Secretary of State for the
Home Department,
10
Lord Bingham appears to have accepted Daly as
representing good law.
11
Nevertheless there seems to be unnecessary and
unwarranted confusion regarding the appropriate circumstances under
which Wednesbury unreasonableness and proportionality can be engaged
as grounds for judicial review in England. This confusion has also had a
ripple effect on other jurisdictions such as India and Sri Lanka which are
guided by English principles of judicial review.
The confusion is exacerbated by the fact that both Wednesbury
reasonableness and proportionality are standards used for reviewing the
rationality of governmental action. By drawing a distinction between
irrationality (as a synonym for Wednesbury unreasonableness) and propor-
tionality, judges have given the impression that there is no convergence
between irrationality and proportionality as grounds of review. Yet an
analysis of the historical origins of each principle clearly indicates that the
genesis of the concepts is rooted in rationality – it is the methodology of
review and the benchmark of rationality that distinguish the two
standards of review.
II THE NEED FOR REVIEW: ANATTEMPT TO CURB
HUMAN PROPENSITIES
Decisions made by executive agencies and those exercising public power
must satisfy the requirement of reasonableness. The conceptual notion of
reasonableness in the process of decision-making is deeply ingrained in
the human psyche. The notion has been alluded to by a wide array of
writers including social contract theorists and modern positivists.
Assessing the significations of the word ‘reason’ John Locke makes the
following observation:
The word reason in the English language has different significations:
sometimes it is taken for true, and clear principles: sometimes for clear, and
fair deductions from those principles: and sometimes for the cause, and
particularly the final cause. But the consideration I shall have of it here, is in a
signification different from all these; and that is, as it stands for a faculty in
8
Daly (n 7) [32]; 447.
9
R (on the application of ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23;
[2003] 2 AllER 977. For a critical assessment of this decision see eg Jeffrey Jowell ‘Judicial
Deference: Servility, Civility or Institutional Capacity?’[2003] PL 592.
10
11
A(n 10) [40]; 197.
96 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH
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