Responsive Reasons in Administrative Law: The Traditional Position

I am working on a paper on the concept of responsive reasons in administrative law. I will be posting bits and pieces over the next week or so. Here is the opening section on the traditional position, from which we are moving away…

Reasonableness in administrative law has a long and storied history. For common lawyers the canonical statement is that of Lord Greene MR in Wednesbury, a case that became synonymous with the concept. There he expressed, in powerful terms, the powerful idea that as long as an administrative decision-maker is acting within the four corners of its statutory authority, its decision can only be set aside if it is “so absurd that no sensible person could ever dream that it lay within the powers of the authority”.[1]

Subsequent judges gave their own rhetorical spin to Wednesbury in later decades. Lord Diplock described this ground of review as requiring “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.[2] An Irish judge saw the judicial role as “considering whether the impugned decision plainly and unambiguously flies in the face of plain reason and common sense”.[3]

As is well known, these descriptions are analytically flawed, because they do not account for the true reasons that judges may intervene on the basis that a decision within the four corners of a decision-maker’s statutory authority is nonetheless unreasonable[4] and they cannot give an accurate account of judicial practice.[5] Hence the attempts almost too numerous to cite to uncover Wednesbury’s substantive principles, its reason and structure[6] or its true analytical basis.[7] Yet one can still cite Wednesbury and its variants without fear of public shaming in a courtroom or classroom. Sophisticated academic writers[8] and judges[9] continue to defend the formulations set out in the previous paragraph. Apart from the weight of authority, these formulations carry rhetorical force. Caution: Merits Approaching; Steer Clear. A particularly memorable version comes from an Irish judge:

[T]he kind of error that produces invalidity is one which no rational or sane decision maker, no matter how misguided could essay to be reviewably irrational. It is not sufficient that a decision maker goes wrong or even hopelessly or fundamentally wrong: he must have gone completely and inexplicably mad: taken leave of his senses and come to an absurd conclusion. It is only when this last situation arises or something akin to it that a court will review the decision for irrationality.[10]

I will argue in the balance of this paper that the old formulations of Wednesbury are no longer an accurate guide to the nature and scope of reasonableness review in the Commonwealth. Yet they retain their hortatory function. Even the Supreme Court of Canada, in its ambitious and unprecedented effort to provide a comprehensive definition of reasonableness in the Vavilov decision accepted that judicial intervention is only warranted where there are “serious shortcomings” in an administrative decision.[11] The hortatory function also has some analytical force too, in the form of the well-worn admonition that judicial review should not be seen as an invitation to the reviewing court to reweigh factors taken into account by the decision-maker. And the old formulations do identify one unavoidable feature of judicial review for reasonableness, whatever its form: ultimately, in applying the (objective) reasonableness standard, the reviewing judge has to make a (subjective) judgment call on whether the standard has been met or not in the instant case.

Yet nothing, even in the common law, endures for so long without responding to some important normative consideration. In this regard, it would be naïve not to acknowledge that some lawyers take comfort from this combination of features: there are the four corners of the statute, capable entirely of objective evaluation, and there is unreasonableness within the confines of the statute, determinable only subjectively and, therefore, to be treated with extreme caution. Wednesbury functions almost as a lullaby, comforting those who need to be comforted and who “keep close to nurse for fear of something worse”. And this comfort should not only be acknowledged but respected, as it is entirely legitimate, on grounds of separation of powers, good administration or legislative primacy, to wish to keep judges within their assigned boundaries,[12] forbidding second-guessing of the merits of judicial decisions,[13] and the reweighing of considerations taken into account by the administrative decision-maker.[14] As we will see, the emerging concept of ‘responsive’ reasons also seeks to confine judicial power, albeit in a different way.

[1] Associated Provincial Picture Houses v. Wednesbury Corporation, [1948] 1 K.B. 223, at p. 229.

[2] Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374, at p. 410. Interestingly, his Lordship also commented that to “eliminate confusion”, the term “reasonableness” is best avoided in public law. Ibid., at p. 409.

[3] State (Keegan) v. Stardust Victims’ Compensation Tribunal, [1986] I.R. 642, at p. 658.

[4] Jeffrey Jowell and Anthony Lester, “Beyond Wednesbury: Substantive Principles of Judicial Review” [1987] Public Law 368.

[5] Paul Craig, “Proportionality, Rationality and Review” [2010] New Zealand Law Review 265, at p. 274.

[6] Paul Daly, “Wednesbury’s Reason and Structure” [2011] Public Law 238.

[7] Paul Craig, “The Nature of Reasonableness Review” (2013) 66 Current Legal Problems 131.

[8] Adam Perry, “Wednesbury Unreasonableness” (2023) 82 Cambridge Law Journal 483.

[9] Robert Carnwath, “From judicial outrage to sliding scales—where next for Wednesbury?” ALBA Annual Lecture 2013.

[10] Aer Rianta v. Commissioner for Aviation Regulation, unreported, High Court, January 16, 2003 (O’Sullivan J.).

[11] Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 (CanLII), [2019] 4 SCR 653, at para. 100.

[12] Timothy Endicott, “Arbitrariness” (2014) 27 Canadian Journal of Law and Jurisprudence 49.

[13] R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, 515.

[14] Stores v Secretary of State for the Environment [1995] 1 WLR 759, at pp. 764, 780.

This content has been updated on April 19, 2024 at 12:09.