A Constitutional Solution to this Constitutional Crisis

This post is jointly written with Lindsay Stirton and Richard Kirkham.

On Thursday 23rd June, the electorate voted, by a margin of 52% to 48% in a consultative referendum in favour of the United Kingdom leaving the European Union. The following day the Prime Minister announced his intention to step down as Prime Minister of the UK, albeit after a period of time. Explaining this decision, the Prime Minister said in his resignation statement

A negotiation with the European Union will need to begin under a new prime minister and I think it’s right that this new prime minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

What role should Parliament play in this process?  At one level, the question is one of whether triggering Article 50 can be done by executive act alone, or requires legislation or some Parliamentary procedure. The question is not a purely technical one as to which lever to push—if legislation is required then this might require the consent of the Scottish Parliament by means of a Sewel motion. Scottish First Minister Nicola Sturgeon is claiming this interpretation, though anticipates disagreement from the UK Government.

More fundamentally, what is the constitutional role of Parliament in the process of withdrawal?  Does the referendum mean that it must now remain a mute spectator to events as they unfold?  Or does the constitution require it to take a more active role in the process?

Is Legislation Required to Trigger Article 50?

Let’s start with the text of Article 50 of the TFEU itself. According to Art 50 (1):

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

David Allen Green does a good job of parsing this provision. It requires, first a decision, and secondly that this is taken in accordance with the Member State’s constitutional requirements. First, he says, a decision could mean any number of things.

  • a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);
  • as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);
  • a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;
  • a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

As Green points out, each of these would amount to a ‘decision’, but would each be in accordance with the UK’s constitutional requirements? Mark Elliott is right when he suggests that the mainstream view is that Article 50 can be triggered without the involvement of Parliament:

The general view, though, is that the Article 50 process — whereby the UK’s departure from the UK would be negotiated — falls to be triggered by the Government exercising its so-called prerogative powers to conduct foreign policy, rather than by Parliament enacting legislation. This means that when (or if) Article 50 is invoked, that could happen without any legislation being enacted by the UK Parliament. What this boils down to is that Brexit could become irrevocable (unless the EU agrees otherwise, it follows automatically two years after Article 50 is triggered) without the UK Parliament ever enacting any legislation to which the Scottish Parliament could object.

This view is challenged by Nick Barber, Tom Hickman and Jeff King. These authors argue that domestic legislation has become so suffused with EU law—it is implicit in the long title and the general scheme of the European Communities Act 1972 as amended that we should be a member of the European Union. Equally, they argue it is the plain intent of the European Parliamentary Elections Act 2002 that UK citizens should have the right to vote in European elections. For the executive to deny that would be to unconstitutional. To probe further, we have to delve into some constitutional first principles, as well as parsing the UK legislation in some detail.

Traditionally, the power to conduct diplomatic affairs and to make treaties with other nations falls to the Crown under the Royal prerogative, the residual powers of Her Majesty, exercised on (Prime) Ministerial advice. However, prerogative power gives way in the face of statutory regulation. To clarify, the relationship between statute and prerogative is not like the relationship between statute and common law. In the latter case, while statute can amend the common law, the two can quite happily co-exist, so that many areas of law are a near-seamless co-mingling of statute and common law.

As far as the prerogative is concerned, the relationship with statute is somewhat different. The effect of legislation is not to amend but to displace prerogative. The prerogative power is then said to be in abeyance. That is to say, it is extinguished, but revives if Parliament later repeals its legislation.

It is an established principle of constitutional law—known as the de Keyser principle (after the case of Attorney General v de Keyser’s Royal Hotel [1920] AC 508) that if Parliament has conferred powers on the executive to undertake a certain act, then that act can only be done under statutory powers. To allow otherwise would be to defeat the purpose of legislating in the area. In particular, it would allow the Crown to circumvent any controls or limits that Parliament had enacted. As Lord Atkinson put it in de Keyser’s case:

[W]hen such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same — namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

Any attempt to interpret the legislation governing the UK’s relation with this view should be read in light of this traditionally restrictive judicial attitude towards the limits of Royal prerogative in the face of controlling legislation. Barber, Hickman and King make much the same argument based on Case of Proclamations, (1610) 12 Co. Rep. 74 and Fire Brigades Union Case [1995] 2 AC 513.

We will not deal further with the application of the European Communities Act 1972 which has been addressed by Barber, Hickman and King in their post . However, it is worth emphasising that in addition to this legislation, Parliament has made further statutory provision regarding the exercise of the prerogative power to change rights arising under EU law. Section 2 (1) of the European Union Act 2011 specifies certain conditions which must be satisfied before a “treaty which amends or replaces TEU or TFEU” is ratified:

Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

In constitutional terms, this section now forms the bedrock of the mechanism for ratifying changes in our relationship with the European Union.  The mechanism in envisages is one of dual consent.  The consent of the electorate through a referendum is necessary where Section 4 applies, but even there it is not sufficient.  Even where the popular will of the electorate has been made clear, the requirement for Parliamentary consent through an Act remains.  The 2011 Act does not in any way make the referendum result binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011).  The European Union Referendum Act 2015 does not alter this system of dual consent.

We do not suggest that this means Parliament could or should ignore the will of the electorate.  However, the section empowers it to impose conditions and safeguards, be they procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.  This is a power it can and should exercise in the present situation.  We need not deal with Section 4 in detail. It states conditions under which a referendum is not required. But this does not affect the fact that legislation is contemplated for any amendment to the TFEU or TEU under Section 2.

Now strictly speaking, to trigger Article 50 is to make use of a provision of an existing treaty, rather than the creation of a new one. However, since the effect of would be to set in motion a process by which these Treaties would be changed, it is strongly arguable—drawing on the de Keyser principle—that Section 2 (1) implicitly restricts the exercise of the Royal prerogative to trigger Article 50. Article 50 anticipates not just the modification or amendment, but the complete annihilation of the treaty obligations of the TEU and TFEU. And Section 2 (1) clearly envisages that where such a modification is to be accomplished by Treaty then legislation is required. The question is whether the law restricts the ability of the Crown, by Royal prerogative, to trigger an automatic amendment to the Treaties which would have required legislation to accomplish had it been done by Treaty.

We think that it is quite likely that this would be the case. For one thing, Article 50 anticipates that following notification, a Member State seeking to withdraw from the European Union will enter into negotiations concerning a withdrawal agreement, and such an agreement would clearly be governed by Section 2 (1). It is not unrealistic to suggest that the alternative—that no agreement is reached, and that the Treaties would cease to apply after two years—is similarly governed.  Consider the consequences of the alternate reading.  Although Parliamentary consent to the withdrawal agreement would in theory be required under Section 2(1), a Parliamentary refusal to ratify the withdrawal agreement would in practice have no effect.  This is contrary to the letter and spirit of the constitutional mechanism set up by the European Union Act? 2011 Act.  In our view, an executive action which ran the risk of producing such an outcome would arguably be unconstitutional.

In summary, one might say the following. While it is not unambiguously certain that legislation is required in order to trigger Article 50, to do so by any other means would be a constitutional quagmire. The Crown would effectively be in a position of compelling Parliament to legislate if legal chaos were to be avoided. Moreover, since Parliamentary consent (among other things) is required for any Treaty change, it should not be for the Crown acting without Parliamentary consent to accomplish by executive act that which cannot be done by Treaty.

It has long been constitutional practice to secure Parliamentary consent for matters where there was doubt about the scope of the prerogative. The grant of independence to conquered colonies is a classic example.  Invoking Article 50 should be no exception.

Legislative Consent of the Scottish Parliament

If legislation is required, or if the Government heeds our advice that even in the absence of a strict constitutional requirement, it would create unimaginable difficulties to proceed otherwise, then a second issue arises, namely whether the legislative consent of the Scottish Parliament is required. Of central importance is Section 29 of the Scotland Act 1998 which limits the competences of the Scottish Parliament, so that it must not legislate contrary to EU law. Again, Mark Elliot takes the view that (even apart from his opinion, discussed earlier) that legislative consent is not required, since the Sewel convention is precisely that—a convention.

Second, the Scottish Parliament cannot anyway “block” UK legislation on Brexit or on anything else. Certainly, it can withhold consent. But because, as explained above, the UK Parliament is sovereign and can do as it wishes, the absence of consent from the Scottish Parliament would not legally disable Westminster from enacting Brexit legislation. This is so because the “requirement” for consent is not a legal requirement at all: it is, ultimately, no more than a political expectation that the UK Parliament will respect the constitutional position of the Scottish Parliament by not riding roughshod over it in certain circumstances.

There is no thing that we would take issue with in this statement, but it misses one larger point. While it would be “legal” for the Westminster Parliament to legislate for Scotland in this way, in the sense that the courts would give effect to the terms of such legislation it would not (as Elliott acknowledges) be constitutional (eg see Murkens). It would not be possible to say that Brexit has been accomplished by an orderly constitutional process, but has instead been accomplished in defiance of constitutional procedure. It is worth recalling that the text of Article 50 speaks of Member States’ “constitutional requirements”, not merely “as prescribed by law” (to borrow the language of the ECHR). It might therefore be possible for a court—drawing on the approach of Attorney General v Jonathan Cape [1976] QB 752—to recognise the Sewel convention in deciding whether the requirements of Article 50 had been met.

The Way Forward

The legal uncertainties outlined above connect all too closely to the political crisis that the UK currently faces. Indeed, what we are left with is something profoundly unsettling, in which former cherished legal understandings based on Parliamentary sovereignty are in danger of being overwhelmed by a dangerously selective use of an appeal to popular sovereignty. Without some additional procedural route being created to confront this crisis head on, then the prospect of ongoing constitutional turmoil, to add to the economic and political turmoil that has already taken hold, is real. However, what we also have is a once in a life time opportunity to settle not just one, but possibly as many as three or four fundamental constitutional issues. Our proposal to address this problem is as follows:

  1. As a matter of constitutional convention, whilst it might remain the authority of the PM under royal prerogative to trigger Article 50, it is not one that he is constitutionally obliged to trigger following an advisory referendum. Notably, Prime Minister Cameron declined to pull the trigger, but instead recognised the authority of the referendum by resigning.
  2. If Article 50 is to be triggered by the PM, it is an exercise that should only be undertaken once approval has been gained from the electorate through a referendum and Parliament. This reading is supported by the de Keyser principle and the precedent of the June 23 referendum.
  3. Parliament should consider itself strongly bound by—that is to say, it should act in utmost deference to—the outcome of the June 23 referendum vote but given that it remains constitutionally supreme it is entitled to lay out procedural conditions on what must happen before and after Article 50 is triggered.
  4. Those procedural conditions should include:
    1. A requirement for the PM to submit his/her proposal for EU negotiation to the electorate before triggering Article 50. We are opened-minded as to whether this requires a General Election, and the need to address the Fixed Terms Parliament Act 2011, or a second referendum.
    2. A requirement for certain consequences to follow should the response of the electorate continue to be to support the triggering of Article 50. One clear commitment that should be made is to delegate authority to the Scottish Parliament to stage a referendum on independence. Further commitments should be made in relation to Northern Ireland and Gibraltar.

An alternative to (a) would be to provide for a second referendum once the withdrawal negotiations are complete, if the final withdrawal agreement deviated significantly from what the electorate were promised.  Parliament would, in the statute authorising the invocation of Article 50, set these threshold conditions, based on the promises made by the official campaign to leave the European Union.  If the referendum were to reject the proposals, the UK would remain a member of the EU.  The government would have to obtain the consent of the other EU members to this before commencing on withdrawal negotiations.

In our view, such a provision will give Parliament a constructive constitutional role to play in the process. Given that the withdrawal negotiations will be led by politicians who campaigned for Brexit, there will be little fear of deliberate sabotage of the process.  At the same time, it will protect the expectations of those who voted for Brexit, and ensure that they have chance to respond if the conditions they were promised Brexit would secure are not in fact secured.

We are aware that a riposte to this proposal is that it disrespects the popular will of the electorate demonstrated by the results of the June 23 referendum. But the counter-argument is that such a fundamental shift in constitutional design as Brexit compels will not be stable unless the procedure is seen to be fair by the losers to the debate as well as the winners. Indeed, given that some of the most influential figures in the leave campaign now seem to have reneged on some of the commitments made during the campaign (e.g. immigration) then it is probable that even those who originally voted to leave the EU will be fundamentally dissatisfied with the eventual terms of the UK’s departure. They would be right to be dissatisfied, as they are failing to give due respect to the popular will expressed in the referendum.  This, we suggest, makes it necessary for Parliament to use the system of dual consent under Section 2(1) of the 2011 Act to ensure that the withdrawal process is adequately policed.  The suggestions we have outlined above will, in our view, accomplish that end.

One of the mantras of the leave campaign was ‘to take back control’. A first act of taking back control is to institute a process that allows all parts of the UK to take responsibility for the proposed design of the new constitutional order. Putting the process in place should be the duty of Parliament. If Brexit really is the will of people it is hard to see on what basis this proposal could be rejected.

This post is cross-posted at the University of Sussex’s LaPSe of Reason Blog.

Why the Judicial Power Project is wrong about Anisminic

This post is co-authored with Lindsay Stirton

The Judicial Power Project lists fifty supposedly problematic judicial decisions. Although a small number of these are private law cases, the vast majority concern administrative law and human rights. It is encouraging to see constitutional questions debated in the public sphere, and even more so to see one of the contributors wrestle with legal doctrine. Nevertheless, the manner in which the Judicial Power Project represents those fifty decisions leaves a lot to be desired. It is not just that the accounts they present are subjective and contestable (although they clearly are, as Mark Elliott’s response demonstrates). It is that the Project’s accounts of many of the cases are objectively misleading, because they ignore critical aspects of context.

In this post we focus on their treatment of Anisminic, the 44th case on their list (paired with In re Racal which we do not discuss here for reasons of space). We focus on Anisminic both because of the totemic position this case occupies in histories of public law, and because of the stridency of the Judicial Power Project’s criticism, accusing the Law Lords of “judicial adventurism” by sidestepping the clear words of statute. This characterisation is objectively wrong at two levels. Firstly, in terms of doctrine, Anisminic neither invented nor significantly extended the common law tradition on reading down ouster clauses. On the contrary, authorities of the highest standing at the time understood Anisminic to be an orthodox application of existing doctrine. The true significance of Anisminic, we argue, lies elsewhere. Secondly, and far more fundamentally, when we consider the decision in Anisminic in the context of its aftermath, it assumes a very different colour from that which the Judicial Power Project gives it. Far from being an instance of judicial overreach, Anisminic offers a powerful example of how the judiciary, legislature, and an engaged citizenry can work together to improve the quality of administrative processes.

We now turn to the details of each of these points.

Ouster clauses and the doctrinal context of Anisminic

Let us begin with the claim that Anisminic was an instance of “judicial adventurism” because of its reading down of ouster clauses. This point can be dealt with pithily. In the political ruckus following the decision, leading commentators insisted that there was nothing whatsoever new in the House of Lords’ reading down of the ouster clause. In a letter to the Times on 1 February 1969, H.W.R. Wade had this to say:

If legal rights cannot be brought before the courts, the rule of law collapses. The judges, well understanding this, have for 300 years firmly set their faces against such provisions and have, to put it bluntly, refused to apply them. What is now needed is a thorough study of the problem from all angles, with a view to making exceptions where they are justifiable, but not elsewhere. Meanwhile, the Government should respect the wise decision of the House of Lords, which puts justice first.

Likewise the President of the Law Society and the Bar Council, in a letter published three days later, had this to say:

In so doing the House of Lords was following and reaffirming a long established principle that sections such as that which is mentioned above do not prevent the Courts from investigating the question whether the so called determination is a nullity and, if they find that it is, so declaring and giving whatever consequential relief may be appropriate.

Careful study of the decisions themselves supports this reading. Of the dissenters in the House of Lords, Lord Pearson dissented not because he thought the ouster clause precluded him from doing otherwise, but because he thought the decision of the Foreign Compensation Commission was correct. Lord Morris, the other dissenter, similarly made it clear that “[t]he provisions of section 4(4) of the Act do not, in my view, operate to debar any inquiry that may be necessary to decide whether the commission has acted within its authority or jurisdiction.”

This is because Anisminic’s contribution to the development of public law did not lie in its reading down of “no certiorari” clauses, but in its attempt to elaborate on what this long-established principle meant in the context of the legal needs of the late 1960s. As we discuss in detail in a forthcoming piece (to appear in the LQR in 2017), there was at the time a genuine fear – seen particularly clearly in the discussions surrounding the Whyatt and Goodfellow reports – that administrative bodies, in pursuit of the entirely laudable goals that the post-War state had taken on, would give insufficient consideration to the interests of individual persons with whom they came into contact (the Whyatt Report’s famous “farmer with two acres and a cow”). This concern crossed party lines – Labour and Conservative lawyers were to be found on both sides of the debate. Parliament’s ability to provide an effective remedy was limited. As JAG Griffith put it in his contribution to Law Reform Now, Parliamentary control of the executive was more akin to the manner in which the banks of a river control its flow than the sense in which a driver controls a car. In practice, Parliament could do little in relation to individual instances of hardship, and many such instances went unredressed. Allowing “no certiorari” clauses in practice did not mean respecting Parliamentary sovereignty. It meant accepting a state of things where there were no practical checks on executive action.

Contrary to the Project’s interpretation, the solution proposed by Anisminic placed Parliamentary sovereignty front and centre. The starting point of Anisminic was that powers conferred on subordinate authorities by Parliament were not usually unfettered. The question which any purported exercise of a power by a public authority necessarily raised, therefore, was whether the public authority had been given that power. And the answer to this question lay in a separation between matters which Parliament had intended to entrust to the authority in question, and matters on which Parliament had already expressed its opinion on, and from which the authority could not constitutionally dissent. The reason the determination by the authority in Anisminic was a nullity was that it sought, impermissibly, to do the latter – by denying recourse to a class of persons who Parliament had decided should get recourse. Parliament could permit the authority to dissent from its view if it wished, and it could frame clauses absolutely excluding judicial review if it wished. However, the House of Lords pointed out (rightly) that such a situation would be so exceptional in constitutional terms that exceptionally clear wording would be expected. It would require more than the mere use of a form of words which was substantially equivalent to forms long understood to have a much more limited effect.

Objectively viewed, therefore, Anisminic represents neither “judicial adventurism” nor an attack on Parliamentary sovereignty. It represents, instead, an attempt to understand what this idea – that only Parliament (not the executive, and not the judiciary) possesses unfettered power – means when it came to a claim by an executive body to possess unbounded power.

The aftermath of Anisminic

The Project’s description of Anisminic becomes even more problematic when we look at the case’s actual effects. Far from being an example of judicial overreach, Anisminic presents an outstanding example of how a judicial decision can improve the quality of administrative decision when all parties approach its implications in a spirit of commitment to the rule of law.

The executive’s reaction to Anisminic was swift. A new Foreign Compensation Bill was at the time making its way through Parliament, giving effect to a treaty between the Soviet Union and the UK on compensation for British property that had been lost in the Baltic states on their incorporation into the USSR. The government swiftly added a clause to that Bill to deal with the decision in Anisminic:

(4) An Order in Council under the said section 3 may confer power on the Foreign Compensation Commission to determine any question as to the construction or interpretation of any provision with respect to claims falling to be determined by them which is included in any Order made under that section after the passing of this Act; and any determination of the Commission by virtue of this subsection shall be included among the determinations to which section 4(4) of the Foreign Compensation Act, 1950 (determinations of the Commission not to be questioned in courts of law) applies.

Contrary, again, to what the Project suggests, speeches in the Commons show that some members had strong reservations about this amendment. Sir John Foster spoke strongly against the proposed amendment, and in favour of the decision of the House of Lords:

The House of Commons, once again following the Burmah Oil and Prince Frederick examples, is being asked to follow a course which is contrary to justice. We are to have this tribunal and whatever it says is to be right. It can go off its head provided it follows the procedure.

The amendment nevertheless passed the House of Commons and went to the House of Lords. At this point, the legal profession and legal academics intervened in the debate. Professor Wade wrote the letter we have quoted from above, and the Presidents of the Bar Council and the Law Society wrote their joint contribution which we have also quoted. Both supported the House of Lords’ decision, and argued in the strongest terms that the proposed amendment was contrary to the rule of law. The Presidents of the Bar Council and the Law Society went one step further, and proposed a possible solution: the introduction of a statutory appeal to a court of law.

On 4 February 1969, the Bill was debated in the House of Lords. The debate was nuanced and impressive, involving the participation of Lords Denning and Wilberforce as well as other individuals. The suggestion of a statutory appeal was considered, and won support from a broad range of peers (although not of the government). Viscount Dilhorne finally moved an amendment to create precisely such an appeal to the Court of Appeal, with no further appeal to the House of Lords. The amendment was carried, and became part of the final Act.

It is hard to square this history with the account presented by the Project – that Anisminic was an arrogation by the judges of power that Parliament had clearly intended to deny them. The subsequent history makes it clear that Anisminic was an example of the precise opposite: the judiciary, Parliament, and engaged members of civil society working successfully together to resolve a problem created by a statute, and which threatened a core legal principle. Historically seen, Anisminic is a shining example of the UK’s constitutional institutions functioning at their best. To portray it otherwise is wrong to the point of misleading.

This points to a broader issue with the way the role of the judiciary is often debated. As lawyers, we have a tendency to work with ideal types – idealised representations of institutions, rather than their messy empirical reality. When it comes to the debate about judicial powers, however, there has been a regrettable tendency to work with an idealised representation of Parliament, juxtaposed against an almost cynically realist representation of the judiciary. This does not make for productive discussion. Any debate should be conducted in the light of the actual strengths and limitations of the institutions in question, to see how we can best structure their common working. Otherwise we run the danger of grounding our thought in a grave misunderstanding not just about the judiciary itself, but also about the constitutional principles that underlie its exercise of jurisdiction. The mistaken account of Anisminic on the Project’s website instantiates this danger. The idea that executive powers are not unfettered (which, as a contextual reading reveals, is what Anisminic actually said) is far less objectionable than the idea that judicial power is unfettered (which Anisminic can be read to say, but only if you take it out of context), and represents a far more important constitutional principle. When debating an issue as important as the constitutional role of the judiciary, we cannot afford to let our proposals be shaped by errors as egregious as these.

This article is cross-posted at the UK Constitutional Law Blog, UK Administrative Justice Institute Blog and at the University of Sussex’s LaPSe of Reason Blog

Legal consciousness and administrative law

Legal consciousness, and its close cousins ‘claim consciousness’ and ‘rights consciousness’, are concepts we hear a lot of in private law.  That isn’t generally true of public law, however.  Although legal consciousness sometimes intrudes into discussions of civil liberties, it doesn’t feature very much in discussions about the constitution (not after the 18th century, anyway).  And I have never come across anyone invoking legal consciousness in the context of judicial review.

I’ve often thought that this is a regrettable omission, for there surely must be some form of demotic understanding of the legal constraints on administrative discretion (Lindsay Stirton and I make a related point in a paper forthcoming in Public Law). I was therefore both somewhat startled and somewhat pleased to discover clear empirical evidence this morning in (of all places) my local paper that there is, in fact, such a thing as legal consciousness of administrative law – specifically, of the Wednesbury principle.  The document in question is the letter titled “Public ignored”.

wednesburyWhat I found particularly interesting was that the ‘demotic’ understanding of Wednesbury one sees in this letter is wrong as a matter of doctrine.  To the extent Wednesbury speaks of the factors that were taken into account, it merely requires the decision maker to take into account all factors that he was bound in law to take into account (not all factors that he ‘should‘ have taken into account, which is an entirely different standard):

For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.”

And that, too, is precisely as theorists of legal consciousness predict.