Facts
The Sunday Entertainments Act 1932 allowed cinemas to open on Sundays, subject to any conditions the local authority thought fit to impose. Wednesbury Corporation granted the cinema company a licence for Sunday performances, but on condition that no children under 15 were admitted, whether or not accompanied by an adult.
The company challenged the condition, arguing that it was unreasonable and therefore beyond the corporation's powers.
Issue
Can the courts interfere with a local authority's decision, made under a broad statutory discretion, on the ground that it was unreasonable? If so, when?
Decision
The Court of Appeal held that the condition was lawful. Lord Greene MR gave the leading judgment.
Reasoning
The court isn't an appeal body. Where Parliament gives a local authority a discretion, the court can't substitute its own view of what the right decision would be. It can intervene only if the authority has acted unlawfully.
When the court can intervene. Lord Greene explained that a decision can be challenged if the authority:
- took into account matters that it ought not to have taken into account;
- failed to take into account matters that it ought to have taken into account; or
- even having considered the right matters, reached a conclusion so unreasonable that no reasonable authority could ever have come to it.
The last category is the one that became known as Wednesbury unreasonableness. Lord Greene gave an example of the kind of thing he meant: dismissing a teacher because of the colour of her hair.
Applying the test. Protecting the physical and moral welfare of children was a matter the corporation was entitled to consider. The condition wasn't so unreasonable that no reasonable authority could have imposed it, so the court couldn't interfere.
Why it matters
Wednesbury sets the boundary between legality, which the courts police, and the merits of a decision, which are for the decision-maker. It's the classic statement of the reasonableness standard in judicial review, renamed irrationality by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
The test has since become more flexible:
- In cases engaging fundamental rights, the courts apply anxious scrutiny (R v Ministry of Defence, ex p Smith [1996] QB 517).
- Under the Human Rights Act 1998, the courts apply a structured proportionality test (Bank Mellat v HM Treasury (No 2) [2013] UKSC 39).
- The Supreme Court has suggested that the intensity of review varies with the context, without abandoning the reasonableness standard (Kennedy v Charity Commission [2014] UKSC 20; Pham v Secretary of State for the Home Department [2015] UKSC 19; R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69).
Lord Greene's first two categories now sit under illegality, along with improper purpose (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).
How it comes up in exams
When a problem question describes a decision that seems unfair or odd:
- Look first for illegality: did the body misunderstand its powers, act for an improper purpose, or take into account irrelevant considerations (or ignore relevant ones)?
- Then consider irrationality: was the decision so unreasonable that no reasonable decision-maker could have made it? The threshold is high.
- If Convention rights are engaged, apply proportionality under the Human Rights Act 1998.
- Don't forget procedural impropriety: was the procedure fair?
Frequently asked questions
What is Wednesbury unreasonableness?
A decision is Wednesbury unreasonable if it is so unreasonable that no reasonable authority could ever have come to it. The courts can intervene on that ground, but not merely because they would have decided differently.
What was decided in the Wednesbury case?
The Court of Appeal held that Wednesbury Corporation's condition banning under-15s from Sunday cinema performances was lawful. The council had power to impose conditions it thought fit, and the condition wasn't so unreasonable that no reasonable authority could have imposed it.
Is Wednesbury the same as irrationality?
Broadly, yes. In the GCHQ case, Lord Diplock renamed the ground "irrationality", describing it as a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied their mind to the question could have arrived at it.
Has proportionality replaced Wednesbury?
Not generally. Proportionality applies where human rights under the Human Rights Act 1998 are engaged. In other cases, the courts still apply a reasonableness standard, though its intensity varies with the context (Pham v Home Secretary [2015] UKSC 19; R (Keyu) v Foreign Secretary [2015] UKSC 69).