Beyond Wednesbury: Substantive Principles of Administrative Law
![handle is hein.journals/commwlb14 and id is 914 raw text is: Commonwealth Law Bulletin
Beyond Wednesbury: substantive
principles of administrative law
Jeffrey Jowell, Professor of Public Law, University College, London, and Anthony
Lester, QC, Master of the Bench of Lincoln's Inn and Honorary Visiting Professor
of Public Law, Faculty of Laws, University College, London. Reproduced from
(1988) Public Law 365, with the kind permission of the publishers.
There are clear signs that in administrative law cases English judges are beginning
to abandon their traditional preference for dealing with the technicalities of
remedies rather than the principles governing official action and individual rights.'
In a recent immigration case in the House of Lords2 Lord Bridge stated that
courts are entitled, within limits,
to subject an administrative decision to the more rigorous examination, to ensure that
it is in no way flawed, according to the gravity of the issue which the decision determines.
The most fundamental of all 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.
Lord Templeman expressed his view that-
where the result of a flawed decision may imperil life or liberty a special responsibility
lies on the court in the examination of the decision-making process.
This unequivocal recognition of the need for stricter scrutiny of administrative
discretion where fundamental human rights are at stake, and of the need to
protect those rights, has great potential significance for the development of public
law.3
In this essay we explore the implications of an approach to the review of the
substance of administrative decisions that is'based less upon pragmatic interven-
tion4 such as that encouraged by the test of unreasonableness used in the
Wednesbury case,5 and more upon general principles of law. We argue that the
recognition and application of substantive principles would satisfy the need in a
fast developing area of law for clarity and coherence. Far from encouraging judges
to meddle with the merits of official decisions, it would we believe promote
consideration of the proper role of the courts in the growing common law of
public administration. It would also enable the courts to strengthen the protection
of fundamental human rights against the misuse of official discretion without
usurping legislative or executive powers.
1 ... typically, English law fastens, not upon principles but upon remedies, per Lord
Wilberforce in Davy v Spelthorne BC [1984] AC 262 at p. 276.
2 In Bugdacay v Secretary of State for the Home Department [19871 1 All ER 940 (HL).
3 See also R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC
74 and the cases cited therein, especially by Lord Scarman at pp. 110-111.
4 For a recent work commenting critically upon the high place of pragmatism and the low
place of theory in English law, see P S Atiyah, Pragmatism and Theory in English Law
(1987), especially pp. 112-121.
5 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
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Beyond Wednesbury: Substantive Principles of Administrative Law
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