Court of Appeal confirms applicability of ‘Wednesbury test’ in judicial review claims concerning ‘fundamental rights’


In Browne v The Parole Board [2018] EWCA Civ 2024, the Court of Appeal (Coulson LJ, with whom Arden and Singh LJJ agreed) has re-affirmed that, save where human rights or EU law is engaged, it is the ‘Wednesbury’ test which the common law requires to be applied in judicial review cases. This is so, the Court held, even where the challenge is to a decision interfering with a person’s ‘fundamental right’ (such as the right to liberty).

In so deciding, the Court rejecting an appeal brought by an ex-prisoner alleging that a decision of the Parole Board not to release him was unlawful. The Court noted that, given the specific grounds of challenge advanced in the claim, it would not have been conceptually workable to apply a proportionality test in that case in any event, but that, even if that were not so:

“for now at any rate, the common law test for judicial review is based on the underlying principle of rationality. Whilst there is some support for adopting a proportionality test in particular cases concerned with fundamental rights (see for example Kennedy), there is a recognition that a more widespread change would require a major review by the Supreme Court and the necessary overruling of Brind and Smith” [58].

Tom Cross successfully acted for the Parole Board, the Respondent to the appeal.

You can read the full judgment here.