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)  AC 374, 410 per Lord Diplock).
In Associated Provincial Picture Houses v Wednesbury Corporation  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  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.
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?)
Here’s a little follow up on some of my recent posts.
1. The Emperor’s New Pants
You may remember Roy Pearson as the US Administrative Law Judge who is suing his dry-cleaners for US$64M over a pair of suit pants, which were allegedly lost.
Well, believe it or not, they’ve gone to trial. Pearson hasn’t seen the light and settled. Perhaps he’s so far in that he can’t see a way to back down gracefully.
The drawing above is by AP, taken from the Sydney Morning Herald’s article on the topic. Pearson is on the left, the Chung family are on the right.
Apparently Pearson broke down in tears on the witness box when discussing the emotional distress he had suffered, including a divorce and financial troubles. If I were a judge, that wouldn’t impress me. Surely Pearson can’t be saying a pair of lost trousers caused his divorce and financial troubles? If he’s not saying that, how on earth are his divorce and financial troubles relevant to his claim?
I know US law has a concept whereby injury can be too remote for a plaintiff to make a successful claim. I seem to recall Justice Cardozo in Palsgraf v. Long Island Railroad Co 162 N.E. 99 (N.Y.C.A. 1928) said that you can’t be liable for damage that is unforeseeable or too remote. That case involved a woman who was injured by a set of scales falling on her head. How did the scales fall on her head? Well you might ask! I just can’t stop myself from relating the facts to you, because they are crazy. A passenger was being helped onto a train by a conductor, when the conductor caused the passenger to drop the package he was carrying, which was a simple package wrapped in brown paper. Unbeknown to the conductor, the package contained fireworks, and they exploded when they fell onto the rails. The resultant shock wave apparently dislodged a pair of scales which were hanging on the wall at the other end of the platform, and the scales fell on Mrs Palsgraf’s head and injured her. The train company was not liable, according to a majority of the New York Court of Appeal.
Legal Eagle will be watching this space to see what happens. I sure hope Pearson goes down. And gets a major costs order awarded against him.
2. Ginger kids are human too
Hot on the tail of the sad story of the Chapman family (bullied for being ginger haired) comes advice that teasing red heads in the workplace could constitute bullying. So leave those ginger kids alone! Yeah!
(Thanks to the lovely Oanh for the link to this one).
My husband has red hair and I used to have hair with a bit of ginger in it, so it was pretty much inevitable that our children would have red hair. Funnily enough all the red went out of my hair when I got pregnant, and it’s never come back. Now I have to dye my eyebrows and eyelashes so that they match my new hair colour. Ain’t hormones weird? I think maybe my daughter stole it. Anyway, before my daughter was born, I bought a whole lot of green gro-suits. “Did you think you were having a boy?” the nurses asked after she was born. “No, I just knew I was having a redhead,” I answered. And she is a redhead. She’ll probably hate it, but I think she’s simply exquisite.
I’ve written before questioning why people have to be so mean to ginger kids. But this is a terrible story. A British family has been hounded out of three homes in Newcastle by thugs who are teasing the children about having red hair. I think the thugs should have their hair and eyebrows dyed red and have to put up with being called “Blue” for a few months. Or “Gingerhaired Pussy Cat” or “Carrots” or “Red Dog” or “Big Red”. And have people presume that they are about to lose their tempers all the time.
Ginger kids are human too. Give ’em a break.
(A picture of the Chapman children, L – R: Kevin, Daniel and Ryelle. Taken from an article in the Daily Mail)
Well, I warned you that I like freaky facts. I read the following article about an ad which was rude to red-headed freckly men. I felt glad the ad got removed. Why are people so mean to ginger kids?