A Sliding Scale of Reasonableness in Judicial Review

• Jurisdiction: South Africa
• Date: 15 August 2019
• Published date: 15 August 2019
• Pages: 233-256
• Author: Johannes Chan

A Sliding Scale of Reasonableness in

Judicial Review

JOHANNES CHAN*

University of Hong Kong

I INTRODUCTION

A cardinal principle that has shaped the development of judicial review is

the doctrine of separation of powers. The principle of Wednesbury

unreasonableness, which has been the orthodox position in judicial

review for decades, is heavily inf‌luenced by this doctrine of separation of

powers. Under this doctrine, there is a boundary of administrative

discretion beyond which judicial supervision should not cross, even

though the dividing line is often blurred and the precise boundary keeps

shifting.

1

Thus, Lord Brightman cautioned as follows in Chief Constable of

the North Wales Police v Evans:

2

Judicial review is concerned, not with the decision, but with the decision-

making process. Unless that restriction on the power of the court is observed,

the court will . . . under the guise of preventing the abuse of power, be itself

guilty of usurping power.

Likewise, in the classic statement of Lord Diplock in the seminal case

of Council of Civil Service Unions v Minister for the Civil Service, ‘the reasons

for the decision-maker taking one course rather than another do not

normally involve questions to which, if disputed, the judicial process is

adapted to provide the right answer.’

3

The same approach has been

followed in Hong Kong. In a case challenging the decision of the

Commissioner of Correctional Services to remove racing pages from

newspapers subscribed to by prisoners on racing days, in order to curb

illegal gambling in prison, Litton VP refused to entertain any argument

on the irrationality of the policy and held that ‘competing policy

considerations are not matters which courts of law can properly weigh.

These are matters of value judgment based on priorities which the

decision-maker considers relevant.’

4

* Professor and Dean, Faculty of Law, University of Hong Kong.

1

See Wade& Forysth Administrative Law 9 ed (2004) 362–372.

2

[1982] 3 All Er 141 at 154.

3

[1985] AC 374 at 411.

4

Chim Shing Chung v Commissioner of Correctional Services (1996) 6 HKPLR 313 at 320.

233

2006 Acta Juridica 233

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II WEDNESBURY AND MERITS REVIEW

Ironically, the need to enter into a merits review, at least in the extreme

cases, is recognized in the classic statement of Lord Greene in the original

Wednesbury formulation:

5

It is true that discretion must be exercised reasonably. Now what does that

mean? Lawyers familiar with the phraseology used in relation to exercise of

statutory discretions often use the word ‘unreasonable’ in a rather compre-

hensive sense. It has frequently been used and is frequently used as a general

description of the things that must not be done. For instance, a person

entrusted with a discretion must, so to speak, direct himself properly in law.

He must call his own attention to the matters which he is bound to consider.

He must exclude from his consideration matters which are irrelevant to what

he has to consider. If he does not obey those rules, he may truly be said, and

often is said, to be acting ‘unreasonably’. Similarly, there may be something so

absurd that no sensible person could ever dream that it lay within the powers

of the authority. Warrington LJ in Short v Poole Corporation gave the example

of the red-haired teacher, dismissed because she had red hair. This is

unreasonable in one sense. In another it is taking into consideration

extraneous matters. It is so unreasonable that it might almost be described as

being done in bad faith; and, in fact, all these things run into one another.

The essence that runs through this passage is that any discretionary

power must be exercised in a way that is consistent with the reason for

the power being conferred in the f‌irst place. Rationality is an objective

standard and embodies the possibility of the co-existence of more than

one view. It has to be determined within the context of the statutory

scheme that confers the discretion. Seen in this context, it is almost

impossible to determine rationality without at the same time considering

the merits of the decision. The court may not substitute its own decision

for that of the executive, but this is not the same as saying that the court

should completely leave the weighing of competing values to the

executive without at least satisfying itself in appropriate circumstances

that due weight has been accorded to relevant interests and factors.

6

Hence, it is misleading to characterize judicial review as concerning only

the decision-making process and not the decision itself. Indeed, even in

the most extreme formulation of the Wednesbury unreasonableness test,

such as a decision ‘so absurd that no sensible person could ever dream that

it lay within the powers of the authority’,

7

or a decision ‘so outrageous in

its def‌iance of logic or of accepted moral standards that no sensible person

5

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.

6

See R (Daly) v Secretary of State for Home Department [2001] 2 AC 532 at 547 per Lord

Steyn.

7

Associated Provincial PictureHouses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 per

Lord Greene MR.

234 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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