4. Irrationality and proportionality

Wednesbury unreasonableness

The test: In Associated Provincial Picture Houses v Wednesbury Corporation a council allowed Sunday cinema opening on condition that no children under fifteen were admitted. The Court of Appeal upheld the condition. Lord Greene MR said the court could interfere only if a decision was so unreasonable that no reasonable authority could ever have come to it.

GCHQ restated it: Lord Diplock described irrationality as a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.

Wheeler v Leicester City Council: A council banned a rugby club from its ground because the club had not pressed its members to stay away from a tour of apartheid South Africa. The House of Lords held the ban unlawful, as the club had done nothing wrong.

Rights and anxious scrutiny

Closer review: Where fundamental rights are at stake, the court looks more closely. In R v Ministry of Defence, ex parte Smith the Court of Appeal applied anxious scrutiny to the ban on homosexuals in the armed forces, though it still upheld the policy. The European Court of Human Rights later found a breach of the right to private life.

Proportionality

The structured test: Proportionality asks whether the aim is legitimate, whether the measure is rationally connected to it, whether a less intrusive means could have been used, and whether a fair balance has been struck.

Daly: In R (Daly) v Home Secretary a blanket policy of searching prisoners' legal papers in their absence was held unlawful. Lord Steyn explained that proportionality may require the court to look at the balance the decision-maker struck, which goes further than Wednesbury.

In Sierra Leone: Many rights in Chapter III may be restricted only by measures reasonably justifiable in a democratic society. That language invites a proportionality style of reasoning in rights cases.