Wednesbury Unreasonableness: The Expanding Canvas

Abstract

It is an essential aspect of the English legal tradition in public law that judicial review should be based upon procedural standards. Lord Brightman has recently insisted that judicial review involves simply an appraisal of the manner in which an administrative decision is made. However, judicial attitudes during the last three years indicate a changing philosophy which appears to admit of greater scope for substantive review. The principle which is referred to succinctly in modern law as Wednesbury unreasonableness has proved, in the hands of some contemporary judges, a uniquely effective instrument for the exercise of this extended jurisdiction. The central problem posed by recent developments relates to the danger of a “surrogate political process” which may erode the foundations of legislative supremacy and political responsibility. Unbridled judicial review, in accordance with some emerging approaches, has basic implications for the future of the relationship between the administration and the courts.