I was commenting to a learned friend and colleague that the posts which receive the highest hits on this blog are the ones which deal with discrimination towards red heads. The comment threads on the posts reveal that there’s a lot of proud gingers, and a lot of insane people with a prejudice against red hair. My colleague told me that discrimination against those with red hair is in fact enshrined in the law as the epitome of unreasonable exercise of executive power.
Any lawyer who has studied administrative law knows of the concept of Wednesbury unreasonableness, where a decision of an administrative power can only be overturned by a Court if it is “[s]o outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374, 410 per Lord Diplock).
In Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, a cinema challenged the exercise of discretion by the Wednesbury Corporation to grant a licence for the operation of a cinema with the condition that no children under 15 were admitted on Sundays. The Court said the decision of the Corporation could only be challenged if it had been shown that it had taken into account matters which should not have been taken into account, or failed to take into account matters which should have been taken into account, or made a decision so unreasonable that no reasonable authority could have made it. The cinema failed to make out any of these bases.
In explaining what kind of a decision represented an unreasonable one, Lord Greene MR said:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. 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.
{emphasis added}
So, all you anti-gingers out there are guilty of Wednesbury unreasonableness – a decision so unreasonable that no reasonable person could take it. No lesser authority than the English Court of Appeal tells you so. (Hmm…I wonder if Lord Greene had red hair?)
The Legal Soapbox 