AP Picture Houses v Wednesbury
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The Jolly Contrarian Law Reports
Our own, snippy, in-house court reporting service.
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Wednesbury unreasonableness in a Nutshell™
A decision will not be reasonable if:
- in making it the person making it considered factors that it should not have considered, or did not consider factors it should have considered; or
- it was so unreasonable that no reasonable person would ever consider making it.
A famous exigesis on the meaning, in law, of the word “reasonable”. It seems quaint now, but the action concerned whether a local authority could be said to be acting reasonably in prohibiting children under the age 15 to attend cinemas on Sunday.
In 1947, the Wednesbury Corporation in Staffordshire granted Associated Provincial Picture Houses a licence to operate a cinema. One of the conditions was that no children under 15, whether or not accompanied by an adult, could be admitted on Sundays.
This seems arbitrary nowadays but the 1909 Cinematograph Act allowed cinemas to operate between Mondays and Saturdays but not at all on Sundays. Only the local neighbourhood commanding officer of military forces (this we must assume would have been a gentleman like Captain Mainwaring) could apply to the licensing authority to open a cinema on Sunday.
This was 1909. But 1932, the world of cinematic entertainment had undergone profound change, and in that year — some 15 years before the material facts in the case — the Sunday Entertainments Act 1932 permitted local authorities to licence Sunday opening for cinemas “subject to such conditions as the authority may think fit to impose”, and without so much as a by-your-leave from anyone in the home guard.
Associated Provincial Picture Houses sought a declaration that Wednesbury’s condition was unacceptable and outside the power of the Corporation to impose.
In deciding that it did, Lord Greene MR had this to say:
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.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
[...]
I think [counsel for APPH] Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.
Ouch alert for that throwaway “...on matters of high public policy of this kind...” Dripping with sarcasm, don’t you think?