Wednesbury unreasonableness in Singapore law

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.

[10] 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.

Ltd. v. Singapore Tourist Promotion Board (1997),[14] Chee Siok Chin v. Minister for Home Affairs (2006),[15] and City Developments Ltd. v. Chief Assessor (2008).

[4] 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,[18] and hence to engage in judicial policy-making.

[20] 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),[21] 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".

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.

[27] 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).

[28] 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.

[29] 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.

[30] "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.

[31] In Nottinghamshire County Council v. Secretary of State for the Environment, Transport and the Regions (1985),[32] 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.

[33] 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".

[34] This case involved the detention of a foreign citizen living in the UK on the ground of it "being conducive to the public good" under section 18(1)(b) of the Immigration Act 1971[35] as his presence would cause an unacceptable national security risk.

[40] Thus, similar to Cheblak, as long as the Minister had given consideration to the applicant's appeal, the court was reluctant to question the decision as immigration matters are best left to the Government.

The High Court concluded that the judicial process was unsuitable for reaching decisions on questions of public safety, peace and good order, and that therefore it was "in no position to hold that it has been established that the Minister's exercise of discretion was irrational in the Wednesbury sense".

[43] Therefore, for sensitive issues pertaining to certain government policies in Singapore, it can be inferred that a high threshold is required to find a decision unreasonable in the Wednesbury sense.

Where a non-justiciable issue is involved, even where it curtails fundamental liberties, courts will defer to the executive assessment of what the public order or interest demands.

[44] In the UK, where human rights protected by the ECHR are prima facie infringed, the courts apply a doctrine of proportionality in place of the Wednesbury unreasonableness test.

The High Street of the market town of Wednesbury in the West Midlands , England . A challenge to a decision of the local authority in Wednesbury to ban children under 15 years from going to the cinema on Sundays led to a 1947 case that introduced the concept of Wednesbury unreasonableness.
The headquarters of the UK Ministry of Defence (MoD) in the Main Building at Whitehall , London . In 1995, the Court of Appeal held in a case challenging the MoD's policy of discharging homosexual persons that a lower standard of Wednesbury unreasonableness applies when a decision interferes with human rights .
The ICA Building, the present headquarters of the Immigration and Checkpoints Authority . In a 1988 case involving the determination by the Minister for Home Affairs that a foreign national was an undesirable immigrant, the High Court of Singapore appeared to apply a light-touch standard.
A 19th-century balance scale in the Museum of Folk Culture in Waldenbuch , Baden-Württemberg , Germany. It has been suggested in the UK context that a doctrine of proportionality should be applied in place of or merged into Wednesbury unreasonableness. Singapore cases have thus far declined to take such an approach.