Wednesbury unreasonableness is a ground of judicial review in Singapore administrative law. A governmental decision that is Wednesbury-unreasonable may be quashed by the High Court. This type of unreasonableness of public body decisions was laid down in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947), where it was said that a public authority acts unreasonably when a decision it makes is "so absurd that no sensible person could ever dream that it lay within the powers of the authority".
Wednesbury unreasonableness was subsequently equated with irrationality by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case, 1983). These cases have been applied numerous times in Singapore, though in some decisions it is not very clear whether the courts have applied such a stringent standard.
In the UK, courts have applied varying standards of scrutiny when assessing whether a governmental decision is Wednesbury-unreasonable, depending on the subject matter and general context of the case. There do not appear to be any Singapore cases adopting an "anxious scrutiny" standard. On the other hand, a few cases can be said to have applied a "light touch" standard where questions of public order and security have arisen. There are suggestions in the UK that a doctrine of proportionality should supplant or be merged into the concept of Wednesbury unreasonableness; thus far, such an approach has not been taken up in Singapore. It is said that in holding that a decision is disproportionate, there is a higher danger that the court might be substituting its view for the decision-maker's.
Development and application
At common law
WednesburyPronounced . unreasonableness is a "shorthand legal reference". to the classical common law judicial approach expounded in the English case of Associated Provincial Picture Houses v Wednesbury Corporation (1947).. In that case, Lord Greene, the Master of the Rolls, described two forms of unreasonableness. First, unreasonableness can be a general description of a public authority doing things that must not be done, such as not directing itself properly in law by considering matters which it is not bound to consider and taking into consideration irrelevant matters.Wednesbury, p. 229.
Another type of unreasonableness occurs when a public authority does something that is "so absurd that no sensible person could ever dream that it lay within the powers of the authority",Wednesbury, p. 229. as illustrated by the dismissal of a teacher because of her red hair. The latter has now come to be termed as Wednesbury unreasonableness. However, Lord Greene recognised that these aspects of unreasonableness are by no means clear, and "all these things run into one another".
Wednesbury unreasonableness was subsequently reformulated by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case, 1983).. Lord Diplock stated that it applies to a "decision which is so outrageous in the defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".GCHQ case, p. 410. Evidently, this is a much higher standard than ordinary unreasonableness. A governmental decision that is Wednesbury-unreasonable may be quashed or invalidated by a court.Which is what the High Court of Singapore did in Mir Hassan bin Abdul Rahman v. Attorney-General 1 S.L.R.(R.) 134, H.C. (Singapore).
In R v Secretary of State for the Home Department, ex parte Brind (1991),. Lord Ackner said that although the standard of Wednesbury unreasonableness had been criticised as too high:Ex parte Brind, pp. 757–758.
In Singapore Lord Diplock's threefold classification of the grounds of judicial review in the GCHQ case – illegality, irrationality and procedural impropriety – was adopted by the Singapore Court of Appeal in Chng Suan Tze v. Minister for Home Affairs (1988).Chng Suan Tze v. Minister for Home Affairs 2 S.L.R.(R.) 525, Court of Appeal (Singapore). Lord Diplock in the GCHQ case preferred to use the term irrationality to describe Wednesbury unreasonableness, and there is some uncertainty as to whether both concepts refer to the same thing. However, Singapore courts have stated that the test for irrationality is that of Wednesbury unreasonableness.The court in Chan Hiang Leng Colin v. Minister for Information and the Arts 1 S.L.R.(R.) 294, C.A. (Singapore), clearly stated so at p. 306, para. 39. In cases such as Re Siah Mooi Guat (1988),Re Siah Mooi Guat 2 S.L.R.(R.) 165, H.C. (Singapore). Kang Ngah Wei v. Commander of Traffic Police (2002),Kang Ngah Wei v. Commander of Traffic Police 1 S.L.R.(R.) 14, H.C. (Singapore). and Mir Hassan bin Abdul Rahman v. Attorney-General (2009), the courts applied the test of irrationality set out in the GCHQ case.
The same test for Wednesbury unreasonableness was referred to in other cases like Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board (1997),Lines International Holding (S) Pte. Ltd. v. Singapore Tourist Promotion Board 1 S.L.R.(R.) 52 at 79, para. 78, H.C. (Singapore). Chee Siok Chin v. Minister for Home Affairs (2006),Chee Siok Chin, p. 628, para. 125. and City Developments Ltd. v. Chief Assessor (2008).City Developments Ltd. v. Chief Assessor 4 S.L.R.(R.) 150 at 156, para. 10, C.A. (Singapore). However, the courts also considered whether the decision-makers had taken irrelevant factors into account in deciding whether the decision was unreasonable in the Wednesbury sense.Lines International, pp. 82–83, para. 86; Chee Siok Chin, p. 628, para. 125; City Developments, p. 159, para. 17. This is not necessarily inconsistent with Wednesbury unreasonableness as Lord Greene said that taking extraneous factors into account could be seen an aspect of such unreasonableness.
It has been said that the nuances of the term reasonable may have allowed the UK courts to deal with the merits of grievances rather than questions of legality,. and hence to engage in judicial policy-making.. However, it seems that Singapore courts have so far avoided substituting their opinion for that of decision-makers in applying the Wednesbury test. In Lines International, the High Court clearly noted that in considering Wednesbury unreasonableness courts are not entitled to substitute their views of how the discretion should be exercised, nor is unreasonableness established if the court is of the view that the policy or guideline may not work as effectively as another.
This principle has been adopted and emphasised in subsequent cases. In City Developments the court declined to interfere with the Chief Assessor's assessment of the annual value of the applicant's real property for property tax purposes, finding his explanations logical and commonsensical. The courts came to similar conclusions in Chee Siok Chin and Kang Ngah Wei.
Levels of scrutiny English cases dealing with Wednesbury unreasonableness demonstrate varying levels of scrutiny. The intensity of judicial review varies with the subject matter of the decision, ranging from "anxious scrutiny" to "light touch" review.
"Anxious scrutiny" review "Anxious scrutiny" review refers to a more stringent level of scrutiny that is applied when the subject matter of a decision by a public authority relates to human rights.. The term originates from the judgment of Lord Bridge of Harwich in R v Secretary of State for the Home Department, ex parte Bugdaycay (1986),. where his Lordship said: "The most fundamental of human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny".Ex parte Bugdaycay, p. 531.
This approach can be seen to be in line with the UK judiciary's increasing focus on human rights protection, particularly after the entry into force of the Human Rights Act 1998Human Rights Act 1998 (1998 c. 42), in force on 2 October 2000. in 2000, which permits persons aggrieved by infringements of the European Convention of Human Rights (ECHR) to seek a remedy in domestic law. Essentially, this standard of scrutiny is much easier to satisfy, as it lowers the threshold of what constitutes a decision so outrageous that it may be deemed unreasonable in the Wednesbury sense. Such a "rights-based" approach allows courts to scrutinise cases involving fundamental human rights more closely, thereby affording greater protection of fundamental liberties..
An instance of the application of the anxious scrutiny level of review is the 1995 case of R. v. Ministry of Defence, ex parte Smith,. which represents a distillation of principles embodied in decisions previously made by the House of Lords in Ex parte Bugdaycay (1986) and Ex parte Brind (1991). In Ex parte Smith, Smith and three other individuals appealed a Ministry of Defence ruling that mandated the discharge of homosexuals from the service. The court accepted that "[t]he more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable". This is as long as the decision remains within the range of responses open to a reasonable decision-maker.Ex parte Smith, pp. 554 and 564, citing the submission of David Pannick Q.C., counsel for three of the applicants.
The anxious scrutiny standard has not been applied thus far in Singapore. The prevailing judicial philosophy is that of deference to Parliament.. This is despite the courts' general adoption of Lord Diplock's arguably pro-rights stand taken in the case of Ong Ah Chuan v. Public Prosecutor (1980).Ong Ah Chuan v. Public Prosecutor [1979–1980] S.L.R.(R.) 710, 1 A.C. 648, P.C. (on appeal from Singapore). This Privy Council case stated that judges should give constitutional provisions a generous interpretation to avoid the "austerity of tabulated legalism" and to provide individuals with their full measure of fundamental liberties.Ong Ah Chuan, [1979–1980] S.L.R.(R.) at 721, para. 23; 1 A.C. at 661, citing Minister of Home Affairs v. Fisher A.C. 319 at 328, P.C. (on appeal from Bermuda). The words "austerity of tabulated legalism", left unattributed by Lord Wilberforce in Fisher, appear to be those of Stanley Alexander de Smith: see , cited in . The generally deferential stance of the courts shows an inclination towards a strict separation of powers based upon the judiciary's belief that the Parliament is the only organ with the moral legitimacy to decide issues relating to social policy.See Rajeevan Edakalavan v. Public Prosecutor 1 S.L.R.(R.) 10 at 18–19, para. 21, H.C. (Singapore), wherein the Chief Justice opined that the judiciary does not have the moral legitimacy to interfere in the affairs of Parliament, considering the fact that the Parliament has been voted into power by the people of Singapore via legitimate voting processes.
"Light touch" review "Light touch" review demands that only perversity or absurdity amounting to bad faith or misconduct of an extreme kind will satisfy the threshold of unreasonableness.Leyland & Anthony, p. 291. In Nottinghamshire County Council v. Secretary of State for the Environment, Transport and the Regions (1985),. the House of Lords held that bad faith or an improper motive or the fact "that the consequences of [the decision-maker's] guidance were so absurd that he must have taken leave of his senses" must be proven before the court will interfere.Nottinghamshire County Council, p. 247. Such a strict level of scrutiny is commonly applied by courts where matters of public expenditure or government policy are involved, and evidently reflects a "high-water mark of judicial self-restraint".