Is the Wednesbury principle consigned to history? Alec Samuels reports
Is the Wednesbury principle, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER, CA, consigned to the dustbin of history? If not, what exactly does it mean today? Is the European principle of proportionality, derived from the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), part of English law, and, if so, what exactly does it mean? The contemporary answers are to be found in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2015] 3 WLR 1665.
The short answer is that the action or decision of a public body may still be challenged by way of judicial review on the basis of common law irrationality and on the basis of the European principle of lack of proportionality.
The latest authoritative re-statement of the irrationality rule is to be found in the judgment of Lord Neuberger para 127, Lord Hughes and Lord Mance agreeing: “An executive decision can only be overruled by a court if (i) it was
