Syrett, ‘Of resources, rationality and rights: emerging trends in the judicial review of allocative decisions’, [2000] 1 Web JCLI
<http://webjcli.ncl.ac.uk/2000/issue1/syrett1.html>

Of resources, rationality and rights: emerging trends in the judicial review of allocative decisions

Dr. Keith Syrett 

Lecturer in Law, 
Norwich Law School,
University of East Anglia.

k.syrett@uea.ac.uk

Copyright  2000 Keith Syrett.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd. 

Summary
Administrative bodies are regularly called upon to make decisions against a backdrop of scarce resources. Successful judicial review challenges to such determinations have been rare, the courts employing a restrictive reading of the Wednesbury test of unreasonableness/irrationality as a mechanism through which a deferential approach may be secured. This article discusses four recent cases which, in expressing varying degrees of unease with this standard and the limits which it places upon the judicial role, call into question the juridical basis upon which the courts have constructed their ‘non-interventionist’ stance on resource allocation issues. It will be argued that key elements of the judgments reflect substantive developments elsewhere in public law, notably the growing influence of the principle of proportionality in cases involving fundamental rights. Any trend in this direction is likely to raise significant concerns as to the proper role of the judiciary in decisions of this type. However, it should not be assumed that any distancing from the strict Wednesbury standard which occurs will necessarily signal the dawning of full-blown judicial activism in this field. A modified test resembling proportionality may offer a more structured means of scrutinising decision-making, but it is not incompatible with continued restraint where appropriate.

Contents
Introduction
Resource allocation, restraint and non-justiciability
The recent cases
1. R v East Sussex CC, ex parte Tandy [1998] AC 714 (HL)
2. R v North & East Devon HA, ex parte Coughlan [1999] Lloyds Rep Med 306 (CA)
3. R v North West Lancashire HA, ex parte A, D & G [1999] Lloyds Rep Med 399 (CA)
4. R v Chief Constable of Sussex, ex parte International Traders’ Ferry Limited [1999] 1 All ER 129 (HL)
W(h)ither Wednesbury?
Rights and proportionality
Towards judicial activism?
Conclusion

Bibliography

Introduction
Decisions on the allocation of scarce resources between competing interests lie at the very heart of modern politics which, on one well-known definition, has been described as concerning “who gets what, when and how” (Lasswell 1936). This inherently political quality has undoubtedly deterred a judiciary reared upon Diceyan rule of law theory from making determinations which might be construed as constituting involvement in allocative decision-making. Yet the profound consequences which such decisions may have are very likely to lead individuals to seek to challenge them through the legal process.  Indeed, a focus upon efficiency and effectiveness as the cornerstones of the ‘new public management’ has pushed resourcing questions even closer to the forefront of the consciousness of administrators, judges and ‘citizens’ alike. Although emphasis has been placed upon ‘market-based’ mechanisms for the redress of individual grievances in this new model of public service, it is apparent that the development of “a culture of complaints is closely linked with a culture of rights enforceable through litigation” (Harlow and Rawlings 1997, p 422). Latterly, this has resulted in the courts being called upon to resolve questions which turn upon the allocation of scarce resources in a number of judicial review cases, of which the most high-profile was the ‘Child B’ case, R v Cambridge HA, ex parte B [1995] 2 All ER 129. It is the purpose of this article to identify and analyse, through a discussion of four recent judicial review cases, certain emerging trends in the substantive principles which the courts apply when confronted with allocative questions and to discuss the implications which these developments may have. 

Resource allocation, restraint and non-justiciability
It is sometimes stated that decisions involving “the allocation of scarce resources among competing claims” are non-justiciable (Woolf et al 1999, p 170; see also O’Sullivan 1998, p 389; Scully 1999, pp 260-1), that is, that they are not appropriate for determination by the judicial process. A number of interlocking rationales are advanced for this approach. Firstly, as noted above, decisions on which resources shall be allocated to whom are archetypal questions of political economy. Accordingly, under the related doctrines of the rule of law and the separation of powers, they are assigned to elected representatives or those to whom powers and duties have been delegated by such representatives, rather than to independent and impartial but unelected and unaccountable courts whose function is simply to declare and interpret the law. Secondly, the courts do not have the requisite expertise to determine such matters: judges do not have the administrative and managerial training and experience needed to make decisions on how resources are allocated, for example, for particular treatments within the National Health Service (NHS). Thirdly, there are likely to be limits on the information available to the court, in that the evidence produced in respect of the instant dispute between the applicant and the public authority will not present a full picture of all of the possible competing uses of the resources which the decision-maker is required to weigh against each other. This is closely linked to the concept of polycentricity (Fuller 1978). That is, allocative decisions involve a complex network of interacting interests and repercussions which are not easily accommodated within the bipolar adjudicative model of the courts and are thus more appropriately consigned to the political and administrative branches of government, which can endeavour to strike a balance between the rival claims.

Arguments of this nature found favour with Neill LJ in R v Criminal Injuries Compensation Board, ex parte P [1995] 1 WLR 845 at 857, who viewed the court as “ill equipped” to deal with “decisions involv[ing] a balance of competing claims on the public purse” – here, the polycentric question of how the fund’s scarce resources were ‘rationed’ by the establishment of eligibility criteria – and therefore pronounced the matter to be non-justiciable. Similar reservations have been expressed in a number of cases in which the courts have been called upon to address the clearly polycentric issue of resource allocation within the NHS, through challenges which sought to require health authorities to provide funding for particular services and treatments. These judgments exhibit a near-universal refusal to intervene on the basis that courts are not the appropriate for a for determination of such issues, captured in such judicial statements as “the balance of available money and its distribution and use… are questions which are of enormous public interest and concern – but they are questions to be raised, answered and dealt with outside the court” (MacPherson J in R v Central Birmingham HA, ex parte Walker (1987) 3 BMLR 32), “this court and the High Court have no role of general investigator of social policy and of allocation of resources” (Ralph Gibson LJ in R v Central Birmingham HA, ex parte Collier (1988), unreported: Lexis), and “difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make” (Sir Thomas Bingham MR in ex parte B at 137). 

It is important to note, however, that – in contrast to the views of Neill LJ – most judges prefer not to classify decisions involving the allocation of scarce resources as absolutely non-justiciable. This is evident from ex parte P itself, in which the majority of the Court of Appeal, while agreeing that the judicial process was not best-suited to deal with decisions of this type, did not wish to exclude such questions altogether from the scope of judicial review. Intervention in such decisions should remain possible in cases of ‘irrationality’, where, for example, a scheme for criminal injuries compensation excluded all of those with red hair. Sir John Donaldson MR in Walker (at 35) and Sir Stephen Brown P in ex parte B (at 138) similarly chose to retain a theoretical possibility of review in circumstances where the decision was Wednesbury unreasonable or irrational.

In practical terms, this may be of little use to the applicant. As the ‘red hair’ illustration in ex parte P suggests, it will be “a very rare case” (Peter Gibson LJ at 864) in which unreasonableness/irrationality is found to be made out. It is clear that the courts in these cases are “applying the high test that that word (‘irrational’) imports under the Wednesbury decision” (Auld J in R v Sheffield HA, ex parte Seale (1994) 25 BMLR 12). That is, the applicant must show that the decision is, on Lord Greene’s strict test in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 234, “so unreasonable that no reasonable authority could ever have come to it”; or, to adopt Lord Diplock’s reformulation of the test as ‘irrationality’ in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410, “so outrageous in its 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”. This is likely to prove a virtually insurmountable hurdle for an applicant to overcome.

The strict formulation of the unreasonableness/irrationality ground which the courts have endorsed in these cases thus provides them with a ‘substantive tool’ which can be used to justify a position of “judicial self-restraint” (Irvine 1996, 61) vis-à-vis the decision-maker, but which stops short of absolute non-justiciability. This enables them to avoid involvement in polycentric questions, for the reasons identified above, while leaving open the possibility of intervention in totally egregious cases. It is this restrictive reading and application of the Wednesbury test as the chief mechanism which operates to secure judicial deference to the administrative body on allocative questions, which has come under pressure in four recent cases at Court of Appeal and House of Lords level. 

The recent cases
In each of the cases considered below, the applicant seeks to challenge a decision to limit, withdraw or refuse services, which has been prompted by the finite nature of the resources available to the particular public authority. This section will briefly set out the facts, grounds of challenge and outcomes of these cases, while the subsequent section will analyse the differing judicial approaches to the Wednesbury test which emerge from the judgments.  

1. R v East Sussex CC, ex parte Tandy [1998] AC 714 (HL)
This case concerned the statutory duty of a local education authority (formerly s.298 Education Act 1993, now s.19 Education Act 1996) to make educational arrangements for children of compulsory school age who are unable to attend school by reason, in this instance, of illness. The authority made a policy decision to reduce the number of hours of home tuition provided to the applicant, prompted by a need to limit its expenditure as a result of cuts in government funding. This decision was challenged in judicial review, on the basis that the availability of resources was irrelevant to the performance of the duty.

The House of Lords found for the applicant, holding that the legislative provision connoted a standard to be determined purely by educational considerations, and that there was nothing in the Act to indicate that resources should be taken into account. Despite the “unenviable position” of an authority required to provide public services against a backdrop of reduced funding from central government, the court intervened to ensure that the statutory duty was carried out, notwithstanding the authority’s “preference for using the money for other purposes” (Lord Browne-Wilkinson at 749). (For other situations in which scarce resources have been held irrelevant to the performance of a duty, see R v Gloucestershire CC, ex parte Mahfood (1995) 8 Admin LR 180; R v Hillingdon LBC, ex parte Governing Body of Queensmead School [1997] ELR 331; and further Preston-Shoot 1996).  

2. R v North & East Devon HA, ex parte Coughlan [1999] Lloyds Rep Med 306 (CA)
In Coughlan, the applicant challenged the decision of a health authority to withdraw services from the facility in which she lived, thus forcing it to close. This decision had been taken, according to the authority’s evidence, because the facility had become “a grossly under-utilised and prohibitively expensive facility [and] a disproportionate drain on resources available for disabled people generally in the area… this did not represent value for money and left fewer resources for other services”. The authority wished to prioritise improvement of acute rehabilitation services: this would entail moving such patients from the facility and thus render it uneconomic to keep the facility open for the small numbers of long-stay residents, although the authority was prepared to exercise the “cheaper option” of continuing to fund their care elsewhere.

A number of grounds of challenge were advanced in the case, notably the question of whether the NHS or local authority social service departments were legally responsible for long-term nursing care. The Court of Appeal held that the authority’s closure decision was unlawful because it was based upon a misinterpretation of the statutory responsibilities for certain types of long-term nursing care imposed upon it by the National Health Service Act 1977, which had led it to draw up flawed criteria for eligibility for (free) NHS provision; and because it frustrated the applicant’s legitimate expectation, generated by a clear promise of a ‘home for life’ and thus constituted unfairness amounting to an abuse of power. The court also found the decision to be a breach of the right to respect for one’s home under Article 8 of the European Convention on Human Rights, considering it important to “pay particular attention” (at para. 90) to such rights, notwithstanding that the Human Rights Act 1998 is not yet in force.

3. R v North West Lancashire HA, ex parte A, D & G [1999] Lloyds Rep Med 399 (CA)
A, D and G were transsexuals whose requests for extra-contractual referrals for gender reassignment surgery had been refused by the health authority. The latter had adopted a policy which assigned low priority to the funding of procedures considered to be “of no beneficial health gain or no proven benefit”: gender reassignment (together with procedures such as hair transplantation and varicose vein removal) had been categorised as such. The authority pointed to the existence of finite resources and the consequent need to make “difficult decisions” between services and treatments in order to comply with its statutory duties to the benefit of all in its area. The low priority accorded to gender reassignment was based upon the evaluation that transsexualism was not a condition appropriate for funding because it fell into the category of “interventions on the human body… not always related to ill health, but… related to a desire to achieve a body image or a bodily function that cannot currently be achieved”; and upon the view that – despite medical evidence to the contrary – such surgery was not effective. Exceptions might be made to the non-funding policy in cases of ‘overriding clinical need’, but the authority found no cause to depart from it here.

The Court of Appeal quashed the decisions to refuse funding and the policy upon which those decisions were based. It held that the authority had acted unlawfully by failing to give effect in its policy to the evaluation of transsexualism as an ‘illness’ by way of mental disorder for the purposes of the National Health Service Act 1977, which assessment it had conceded as accurate in evidence before the court. Furthermore, given the refusal of the authority to regard gender reassignment surgery as an effective treatment for transsexualism, it was in practice impossible for a patient to make out a case for such treatment, even if she succeeded in establishing a clinical need which would justify overriding the usual policy. The authority was therefore operating a ‘blanket policy’ which effectively admitted of no exceptions, and this was unlawful as a fetter on its discretion. However, further arguments based upon European law and the European Convention on Human Rights were dismissed by the court.

4. R v Chief Constable of Sussex, ex parte International Traders’ Ferry Limited [1999] 1 All ER 129 (HL)
This case concerned the disposition of police resources during a period of protests at live animal exports. The Chief Constable, observing that the level of policing required was significantly impacting upon his ability to deliver policing services to the remainder of the community in Sussex, decided to limit the days on which police resources were provided. The export company challenged this decision, arguing that the Chief Constable had an overriding duty to make it possible for lawful activities (such as export of goods) to be carried out; alternatively, if he had a discretion, he had failed to take account relevant considerations and given too much weight to others and had in any event reached a decision to which no reasonable Chief Constable could come. It was also argued that the decision was unlawful under EC law as amounting to a quantitative restriction on exports, contrary to Article 34(1) of the EC Treaty.

The House of Lords rejected the company’s arguments. In contrast to Tandy, there was held to be no absolute duty to protect the trader’s activities: this was instead a matter of discretion. On the European point, it was held that, even if Article 34 applied to the Chief Constable’s decision (as to which there was some doubt), Article 36 provided a defence on the grounds of public policy and public security. As for the domestic challenge, the court was unable to accept that the Chief Constable had acted unreasonably. In reaching his decision, he had balanced the various competing interests, had regard (as he was statutorily obliged to do) to the priorities identified by the Police Authority, had not ignored other relevant factors or taken account of those which were irrelevant, and had “allocated his men on a carefully considered basis” (Lord Slynn at 141).  

W(h)ither Wednesbury?
The successful outcomes of the applicants’ challenges in the first three cases discussed above would seem to suggest that the courts are beginning to take a less ‘restrained’ attitude to allocative questions. The consequences of overturning a public authority’s decision to allocate resources in a particular way are – at least temporarily – to circumscribe the authority’s choice of priorities for services and, as Lord Browne-Wilkinson observed in Tandy, to require the authority to divert resources from other services upon which it would prefer to spend its money. This represents a level of judicial involvement in such issues which has previously been largely eschewed. 

However, Traders’ Ferry appears to fall much more closely in line with the deferential attitude which was previously observed in the earlier line of cases addressing funding for treatment in the NHS. The differing levels of activism which are evident in the diverse circumstances presented by these cases thus render problematic any assertion to the effect that the courts are now prepared to take a more interventionist stance towards allocative decisions across the board. This point will be developed further below. What is of interest here is the formulation and application of the Wednesbury test in these cases.

As the most thoroughgoing examination of the test to emerge from these decisions, Lord Cooke’s judgment in Traders’ Ferry represents a convenient starting-point for analysis. His Lordship observed (at 157) that Wednesbury was a briefly-considered case which might no longer be decided the same way, and expressed his belief that it was “unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the United Kingdom and beyond”. His view was that the formula “so unreasonable that no reasonable authority could ever have come to it” was “tautologous” and amounted to an “admonitory circumlocution” which was not needed to prevent judges from infringing the separation of powers. Instead, he proposed the use of a different test: “whether the decision in question was one which a reasonable authority could reach”. 

Lord Cooke’s “simple” and “unexaggerated” reformulation amounts, as Craig comments (1999a, p 583), to a “loosening of Lord Greene’s test”. Nevertheless, it produced the same ‘non-interventionist’ outcome endorsed by the other judges – who did not attempt to subject the Wednesbury case and standard to such scrutiny – thereby signalling the “undesirability of the court stepping in too quickly” where the allocation of scarce resources is at issue (Lord Slynn at 137). What is interesting, however, is that his critique clearly points to a sense of unease with the restrictive reading of the unreasonableness/irrationality ground which operates as the standard of review in these cases. It is submitted that a similar sense of dissatisfaction emerges from the other three cases under discussion, although it is notable that none of the judgments attempt an explicit reformulation of the test along the lines proposed by Lord Cooke.

Thus, the House of Lords in Tandy rejected the reasoning of the same court in the superficially similar case of R v Gloucestershire CC, ex parte Barry [1997] AC 584, in  which it had been held that resources could lawfully be taken into account by a local authority engaged in assessment of the needs of a chronically sick and disabled person and in the evaluation of whether it was necessary, as a result of that assessment, to fulfil its duty to make arrangements to meet those needs. In that case, responding to the submission that such a determination would have the effect of collapsing a statutory duty into a power, Lord Nicholls had observed (at 605) that “a disabled person would have a remedy” in circumstances where the authority had acted Wednesbury unreasonably. In Tandy, Lord Browne-Wilkinson (at 749) felt that this amounted to “a very doubtful form of protection”, and that Barry had the effect of “downgrad[ing]… duties into what are in effect, mere discretions over which the court would have very little control”. He accordingly distinguished Barry on the basis of the different wording of the relevant statutes and required the authority to carry out its statutory duty, notwithstanding the scarcity of resources available to it.  

In Coughlan, previous interpretations of the National Health Service Act 1977 clearly established that there was no absolute duty which could be enforced (see R v Secretary of State for Social Services and others, ex parte Hincks [1980] 1 BMLR 93), thus preventing adoption of the Tandy approach. Instead, the court chose to formulate the concept of substantive legitimate expectations (here the applicant’s expectation that she would have a ‘home for life’, engendered by the authority’s earlier promise to her) in terms of “unfairness amounting to abuse of power”. The Court of Appeal’s judgment indicated that, in a case of this type, intervention was not restricted to cases where the authority’s frustration of the applicant’s expectation had been Wednesbury unreasonable. If it had been, judicial control would be extremely limited, since “a decision to prioritise a policy change over legitimate expectations will almost always be rational from where the authority stands” (at para. 66). Rather, once the legitimacy of the expectation had been established, it was for the court, not the decision-maker, to weigh the requirements of fairness against any overriding public interest which might justify frustration of the expectation. Once again, therefore, the traditional Wednesbury test was seen as insufficiently intensive to permit the level of scrutiny in which the court wished to engage; thus the concept of substantive legitimate expectations was uncoupled from it and grounded in fairness.

As with Lord Cooke, the (sole) judgments in both of these decisions manifest a critical attitude to the Wednesbury test. Each case seeks to escape from the shackles the test imposes by basing review on something other than rationality: the existence of a statutory duty or of a substantive legitimate expectation arising out of fairness. In similar vein, two of the judges in A, D and G (Auld and May LJJ) did not explicitly address the issue of the rationality of the decision, focusing instead upon the failure to give effect to the evaluation of the condition as an ‘illness’ and the fettering of discretion by policy. There was accordingly no need for any of the judges involved in these cases to modify the test itself: the Wednesbury standard was effectively ‘sidestepped’, giving greater scope for judicial control over the allocative decisions.

However, the third judge in A, D and G, Buxton LJ, did base his reasoning upon the need for “careful scrutiny by the court as to… rationality” of the decision (at 412), although – in contrast to the three cases discussed above – he did not choose to comment directly upon the suitability or otherwise of the Wednesbury test. Nonetheless, his interpretation would seem to represent an implicit loosening of the standard, not least because the existence of seven other health authorities with similar policies to that of the respondent would surely have afforded scope to declare that there was no ‘unreasonableness’ in the extreme ‘red hair’ sense. Intervention was justified on the basis that the authority must demonstrate that it had given a substantial degree of rational consideration to the decision, in view of its effect upon an “important interest of the… citizen” (ie health: at 412). Here, given that the bulk of the medical evidence on the ‘appropriateness’ and ‘effectiveness’ of treatment by gender reassignment surgery contradicted the authority’s policy, and that no justification for this position had been offered, it had failed to do so. 

This analysis is strongly reminiscent of that of Laws J in the High Court in ex parte B (1995) 25 BMLR 5. He had argued that interference with a fundamental right would be unlawful unless the authority demonstrated a “substantial objective justification” (at 12); but he had also – unlike Buxton LJ  – explicitly doubted the decisiveness of the “crude Wednesbury bludgeon” (at 11) as a touchstone for legality in arriving at his conclusion. Buxton LJ’s judgment may therefore be seen as amounting to an implicit disavowal of the strict Wednesbury standard and as embracing a looser test which places the onus upon the authority to justify its decision in the light of the evidence arrayed against it and the importance of the individual interest affected. In this respect it can be read alongside the three other cases as a further example of judicial discomfiture with, and distancing from, the narrow approach to the unreasonableness/irrationality ground which has previously been dominant in resource allocation decisions.  

Rights and proportionality
In order to make sense of the judicial perspectives on Wednesbury which emerge from these cases, it is necessary to place them in the wider context of the substantive development which the test has undergone in recent times.

One factor which has clearly been of considerable significance in shaping the judicial attitude to the review of discretion in recent years is the growing concern with individual rights, now firmly anchored in the consciousness of judges and the public alike by the Human Rights Act 1998. It is possible to discern the emergence of a ‘rights-based approach’ to judicial review, championed by particular members of the judiciary (notably Lord Woolf, Sir John Laws and Sir Stephen Sedley), manifested in certain leading decisions (the origins seemingly lying in Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514 and Brind v Secretary of State for the Home Department [1991] 1 AC 696, and moving on to the decision of the High Court in ex parte B and R v Ministry of Defence ex parte Smith [1996] QB 517: see further Hunt 1997); and supplemented by an extensive academic and extra-judicial debate (for a fuller discussion, see Donson 1997).

On this approach, the courts will seek to offer particular protection for fundamental rights and will scrutinise decisions which affect such rights especially closely. This has been accomplished by a modification of the Wednesbury test, underpinned by an acknowledgment that “nothing in Lord Greene’s elusive judgment is in the least monolithic” (Laws 1998a, 201), meaning that the intensity of judicial review can be varied according to the subject matter. A ‘sub-Wednesbury’ standard of review in cases involving fundamental rights has thus emerged, with courts lowering the threshold of irrationality, giving “anxious scrutiny” to decisions affecting such rights (Lord Bridge in Bugdaycay at 531; see also Fordham 1996), and showing a “greater readiness to intervene” (Simon Brown LJ in Smith at 538) in such instances.

There has been some reluctance to label any modified Wednesbury test which is emerging in terms of the doctrine of proportionality, as applied by the European Courts of Justice and of Human Rights: for example, in Brind, Lord Lowry (at 767) warned against the use of proportionality on the basis that the judiciary was not well equipped by training or experience to “decide the answer to an administrative problem where the scales are evenly balanced”. The “essential characteristic [of proportionality]… is that the court performs a balancing exercise between the objectives pursued by the measure in issue and its adverse effects on individual freedom” (Tridimas 1999, 68), with the result that “the decision of a public body should be quashed if its adverse effects on a legally protected interest or right go further than can be justified in order to achieve the legitimate aim of the decision” (de Burca 1998, 54; for further analysis of the nature of the principle, see Ellis 1999). Judicial caution reflects the belief that this standard entails explicit involvement by the courts in the merits of a decision and thus represents an infringement of the separation of powers principle. For this reason, lack of proportionality is sometimes depicted as being merely a facet of Wednesbury unreasonableness (see especially Hoffmann 1999, p 109, criticised by Feldman 1999, p 129).

However, while the courts are reluctant to embrace the concept explicitly, it has been observed that they are often prepared to reason in an analogous manner and hence “the doctrine provides an implicit explanation for some of the existing judicial interventions under the guise of Wednesbury unreasonableness” (Woolf et al 1999, p 504; see also de Burca 1998, pp 66-71). This is particularly true of the rights cases, where Hunt (1997, p 216) has argued that the test is one of “proportionality in all but name”. He points out the significance of the shift from a standard of review in which a challenge would only be upheld if the decision was manifestly unreasonable or absurd to the requirement that the decision-maker should justify the restriction upon the right by demonstrating that there is an important competing public interest (see Lord Bridge in Brind at 748-9):

“Once reviewing courts accept that they have a role in ensuring that decisions are ‘justified’, however, they have inescapably accepted a role in the evaluation of the reasoning supporting a decision, and this inevitably involves them in a balancing or weighing exercise which is precisely what a constitutional or human rights court does when it applies a proportionality test to assess the justifiability of an infringement with a presumptively protected right… a reviewing court adopting Lord Bridge’s approach must carry out an exercise which involves assessing the importance of the right, the seriousness of the interference and the weight of the competing public interest before it can reach a sensible view as to the sufficiency of the justification offered” (Hunt 1997, pp 217-8). 

The view that the courts are applying a test in rights cases which is more closely akin to that of proportionality gains further support from the writing of Sir John Laws, who has argued that the courts should be “prepared to hold that a decision which overrides a fundamental right without sufficient objective justification will, as a matter of law necessarily be disproportionate to the end in view…. The deployment of proportionality sets in focus the true nature of the exercise: the elaboration of a rule about possible priorities” (1993, p 74). A strong basis therefore exists for Craig’s claim that “there is little doubt that when reasonableness is intensively applied in the context of fundamental rights it approximates very closely to the type of review which would be applied under a proportionality test for the same type of case” (1999b, p 97). The tendency of the two tests to converge will, of course, be further stimulated by the entry into force of the Human Rights Act 1998. In cases decided under the Act, section 2(1) will oblige courts to take account of Strasbourg jurisprudence, and the very strong likelihood is that the proportionality doctrine will be employed in the determination of such cases, since to do otherwise would be to create a disparity between domestic and European interpretation of the protected rights, thus defeating the purpose of the legislation.

It is submitted that the increasing willingness of the courts to apply a less deferential test closely resembling that of proportionality (even if it is not labelled as such) in decisions touching individual rights, provides an explanation for the ‘drift’ from the stringent Wednesbury test which has been identified in the four cases analysed here. This is relatively unsurprising in situations where the allocative decision in question affects fundamental rights. In such cases, the courts are effectively confronted with a choice between adopting the more intensive standard applied in rights cases and the non-interventionist stance characteristic of allocative issues, and may well opt for the former approach, so as to offer maximum protection for the individual’s right. The decision of Laws J in the High Court in ex parte B may be viewed in this light; significantly, the Court of Appeal’s ‘non-interventionist’ conclusion in this case avoided direct reference to a ‘right to life’ and thus sidestepped the choice between the two approaches.

Of the cases examined here, it is Coughlan which suggests most strongly that the deferential position anchored in a restrictive reading of Wednesbury will come under increasing pressure in cases where allocative decisions impact upon fundamental rights. The court in this case agreed with counsel for the applicant’s submission that there had been a breach of Article 8 of the European Convention on Human Rights (respect for home, private and family life). It took the view (at para. 92) that the savings in resources which would be achieved if the facility closed “would not be dramatic” and would be mainly “in terms of economic and logistical efficiency”, and that this did not constitute justification for interference with the right “in the interests of… the economic wellbeing of the country” (Article 8(2)). In keeping with the judicial reticence noted above, the Court of Appeal did not utilise the proportionality test explicitly in its scrutiny of the authority’s decision. Nonetheless, the court’s decision in several places exhibits reasoning which is closely analogous to that expected under a proportionality doctrine, notably in its endorsement (at para. 93) of Sir Thomas Bingham MR’s statement in Smith that the more substantial an interference with human rights, the more that the court will require by way of justification; and through its evaluation, in establishing whether there had been an abuse of power, of whether the authority’s objective “outweighed” its obligation to be fair to the individual (at para. 83).

Coughlan therefore indicates that the existing trend towards a proportionality-style test is likely to be maintained in cases involving rights, even if the decision has been taken against a backdrop of scarce resources. It also seems highly probable that there will be a ‘spill-over’ of this approach into cases where the rights component is less clear-cut, or even absent (see Irvine 1998, p 231). Judges in such cases will not remain oblivious to the substantive modification taking place elsewhere, and may well prefer to avoid the application of divergent standards in cases which raise EC or Human Rights Act issues and those which do not. This is especially so given that many challenges to allocative decisions will be made under different heads in the same proceedings. For example, a challenge occurring in a similar factual situation to Tandy could be brought both under existing principles of judicial review and as a violation of the right to education under Article 2 of Protocol 1 to the Convention (although the latter challenge appears unlikely to succeed in view of the negative formulation of the Protocol and the existence of a UK reservation avoiding unreasonable public expenditure: see Bradley 1999, pp 403-4). It would clearly be simpler for the court to apply a uniform test to each of the claims arising in such a case. 

Support for this hypothesis may be obtained from A, D and G and Traders’ Ferry, neither of which can be labelled as a ‘fundamental rights’ case if by this phrase is meant only those rights afforded protection by the European Convention on Human Rights. In the former, the Court of Appeal rejected counsel’s submissions based upon Articles 3 (prohibiting inhuman or degrading treatment), 8 and 14 (prohibiting discrimination in the enjoyment of the other rights) and was generally critical of the “unfocused” use of Convention principles (Auld LJ at 410); nonetheless, Buxton LJ placed much emphasis upon health as an important “interest” which warranted a degree of judicial protection. The right affected in Traders’ Ferry was economic in nature (a right to trade), although this was set against a right to assembly which would have fallen under Article 11 of the Convention had those protesting been parties to the case. Both cases might therefore be said to possess a ‘rights flavour’, pointing to the difficulty of drawing rigid distinctions in this area and to the consequent need to avoid complex ‘demarcation disputes’ by applying a common standard of review.

The two cases provide further evidence that the ‘implicit proportionality test’ will perform this function. Thus, Buxton LJ’s judgment in A, D and G echoes the decisions in Bugdaycay, Smith and that of the High Court in ex parte B in its call for “careful scrutiny” by the court on the basis that “the more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required of the decision-maker” (at 412) and in its demand that the authority provide justification for ignoring the weight of medical evidence against it. Similarly, in Traders’ Ferry, where the court was obliged to apply the proportionality test as one of the general principles of European law in respect of the claims made under the EC Treaty, aspects of the doctrine also surface in the ‘domestic’ portion of their Lordships’ reasoning. Lord Slynn, for example (at 137-8), set out the competing interests and rights at stake in the case, such articulation being “an important feature of the proportionality enquiry” (de Burca 1993, 149) and emphasised that the Chief Constable had “carr[ied] out a balancing exercise” of them as was required, a statement which more closely resembles the test of proportionality than that of manifest absurdity under traditional Wednesbury principles. Still more clearly, Lord Cooke (at 157) emphasised the similarity of result obtained through the application of proportionality and Wednesbury in this as in “many cases”, and formulated the question facing the court “whatever the rubric under which the case is placed” as being “whether the Chief Constable has struck a balance fairly and reasonably open to him”. Having moved away from manifest absurdity, the type of modified test being proposed here will – if accusations of excessive judicial discretion are to be avoided – necessitate a judicial investigation into, and exposition of, evaluative questions such as whether the Chief Constable’s decision to restrict policing imposed an excessive burden upon the applicant’s right to trade lawfully. As Craig observes (1999a, p 600), “it will be difficult to persist with the idea that this is really separate from a proportionality test”.   

Towards judicial activism?
The preparedness of the courts in these cases to express disaffection with Wednesbury and to move away from a restrictive reading of the unreasonableness/irrationality ground may therefore be seen in the light of the continued permeation of the proportionality doctrine or, at least, something which is very similar in nature. This raises the significant question of whether further development of a test along such lines, however it may be labelled, will result in more frequent intervention by the courts in allocative decisions. If the shackles of ‘traditional’ Wednesbury are loosened, will greater judicial activism necessarily be the consequence?

The judicial reluctance to adopt an explicit standard of proportionality, which was noted above, is based upon the view that it represents a more intensive standard of review than Wednesbury. The present Lord Chancellor, for one, has argued that “there is no escape from an acceptance that a proportionality test would lower the Wednesbury ‘threshold of unreasonableness’” (Irvine 1996, p 74; see also Lord Lowry in Brind (above); Harlow and Rawlings 1997, p 118; Tridimas 1999, p 69). This would lead to the conclusion that judicial intervention is more likely to occur if such a test is used, raising fears that decisions on the allocation of scarce resources will effectively be taken by the judiciary rather than by those to whom power has been allotted by the democratic legislature. 

However, these concerns may be overstated. Although the doctrine of ‘margin of appreciation’ – which allows the supranational institutions enforcing the European Convention on Human Rights to defer to the judgment of national authorities – will not be appropriate in a purely domestic context (Singh, Hunt and Demetriou 1999), deference may still be achieved through a less intensive application of the proportionality test. De Burca comments of EC law that it is “apparent that the way the proportionality principle is applied by the Court of Justice covers a spectrum ranging from a very deferential approach, to quite a rigorous and searching examination of the justification for a measure which has been challenged” (1993, p 111). Marginal review, allowing the decision-maker scope to exercise discretion, has thus operated in areas which concern “many other interests, both individual and general, over which the policy-maker has personally deliberated at length in coming to a decision” (ibid), such as national security, economic policy and national expenditure. It is therefore open to a court applying a proportionality test to exercise self-restraint, a stance which may often be necessary even where the decision affects fundamental rights, as was made clear in Smith:

“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational… Where decisions of a policy-laden, esoteric or security-based nature are in issue, even greater caution than normal must be shown in applying the [Wednesbury] test” (Sir Thomas Bingham MR at 556).

As with the varying standards of Wednesbury, a differential application of the proportionality test would permit the courts to exhibit caution where the circumstances of the case, as in allocative decisions, are “policy-laden” and “remote… from ordinary judicial experience”, thus enabling them to have regard to considerations of polycentricity, separation of powers, expertise and evidential limitations. This would therefore appear to be an appropriate approach for the courts to adopt (see O’Sullivan 1998; Pannick 1998, pp 548-551).  

If fundamental rights are not involved, the level of review under proportionality may be still less intensive. Traders’ Ferry provides an example of this. Notwithstanding the ‘loosening’ of the Wednesbury test and the apparent convergence with proportionality, the House of Lords refused to overturn the decision of the Chief Constable. This result reflects a long-standing judicial reluctance to become involved in decisions of this type, rooted in deference to expert decision-making and the polycentricity of the issues raised: there has been “no reported instance of the court finding a policy determination by the police to be unlawful” (Barnard and Hare 1997, p 398). It seems apparent that certain decisions will – at least for the present – continue to remain relatively insulated from judicial intervention, whatever the nature of the test which is applied.

On this basis, the response to the question posed in the opening paragraph of this section would appear to be in the negative: a move away from Wednesbury towards a proportionality-type test does not necessarily signal greater judicial activism in allocative matters. All will depend upon the intensity of review; and the factors which presently point towards ‘judicial self-restraint’ continue to remain valid. If this is so, then the substantive developments outlined in this article may be of interest to academic lawyers, but will arguably be of little practical value for an applicant seeking to overturn the decision of a public body on the allocation of resources. 

Yet the loosening of the shackles of Wednesbury has, in the other three cases discussed herein, corresponded with a more activist approach to allocative questions on the part of the judiciary. This would seem to be born of frustration with the limited scope for intervention which the test offers in such cases, especially the manner in which it operates to consign to the decision-maker alone the decision upon the ordering of priorities where resources are scarce. One may particularly detect this in Tandy and Coughlan where the courts sought to exercise greater control over the allocative decisions by side-stepping Wednesbury, arguing that “once the reasonableness of the actions of a local authority depends upon its decision how to apply scarce financial resources, the local authority’s decision becomes very difficult to review” (Tandy, per Lord Browne-Wilkinson at 749), and that it was necessary to avoid the “dilemma” that “a bare rationality test would constitute the public authority judge in its own cause… even if objectively [the decision] is arbitrary or unfair” (Coughlan at para. 66). It would appear that the courts are increasingly prepared to assert themselves in such cases as these, intervening to impose standards of fairness, statutory compliance and good administrative practice upon the decision-maker, especially where fundamental rights are involved. This may be viewed as symptomatic of a greater judicial self-confidence vis-à-vis the executive which has characterised judicial review in recent years (see Marr 1995, pp 279-84; Radford 1997, p 58).

There are good reasons for courts which adopt this less restrained approach to draw upon elements of proportionality as a juridical basis for it, even if the test itself does not necessarily dictate a more interventionist outcome. Aside from the growing familiarity of English judges with the concept through its application in EC law and its implicit – soon to be explicit – use in cases involving fundamental rights, the test itself offers a more structured approach than the Wednesbury standard. The latter has a vague and somewhat intuitive ‘all or nothing’ quality whose “ample cloak” tends to obscure the reasons why a decision is unreasonable, providing little practical guidance to decision-makers as to the values which they should seek to uphold (Jowell and Lester 1987, p 372). In contrast, under proportionality, both public authority and reviewing court are required to expressly articulate and weigh competing interests and to provide reasoned justification for the decision which is taken (de Burca 1998, 54). This structured analysis provides a mechanism enabling the courts to take a ‘hard look’ at the authority’s process of decision-making and to enhance its quality by encouraging the consideration of alternatives, promoting awareness of the decision’s impact upon interests and focusing upon the relation between ends and means (Jowell 1996, 80). In short, a proportionality test can assist in the advancement of the principles of good administration.

Conclusion
As the four cases analysed here are of very recent vintage, it is probably too early to predict conclusively that the substantive developments which emerge from them will be of lasting significance. Judicial review is a dynamic process which, being almost exclusively a creature of the common law, is especially subject to the ebb and flow of judicial opinion. The courts may choose to ‘retreat’ behind a restrictive reading of Wednesbury, overruling or distinguishing these decisions on the particular facts of the case. Alternatively, the emerging trends identified here may gather pace, with assertive judges distancing themselves still further from unreasonableness/irrationality and exercising closer supervision over allocative decisions in the interests of good administration and the protection of individual rights. 

At present, the latter course seems the more likely, particularly in view of the number of challenges to allocative decisions which are likely be formulated under the Human Rights Act – where courts will engage in ‘anxious scrutiny’ and proportionality will be the relevant standard – and the probable ‘spill-over’ effect of the doctrine into non-rights issues. However, it is clear from Strasbourg jurisprudence that rights claims do not necessarily prevail over resource considerations; rather, “regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole” (Powell and Rayner v UK (1990) 12 EHHR 355 at 368). This will be true a fortiori where the affected interest does not amount to a fundamental right. It will therefore be important, as Laws observes (1998b, 259), for the courts to “steer between the Scylla of excessive activism and the Charybdis of a failure to protect guaranteed rights” (or other interests) when engaged in review of an allocative decision. A variable but structured proportionality test provides a useful tool for this task, securing the advantages in terms of good administration identified above, while at the same time allowing for deferential review where this is considered appropriate, as in Traders’ Ferry. Whatever approach develops, however, it seems certain that the courts will continue to be faced with numerous difficult decisions on this frontline between law and politics.

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