Responsive Reasons in Administrative Law: Is this Doctrinal Development Justifiable?

This is the final post in my series on ‘Responsive Reasons’: for the previous posts, see here, here, here and here.

There are two questions to be addressed in this section: why has responsiveness become important; and is it justifiably important? I will first address technical reasons for the rise of responsiveness in judicial review and then, as a bridge to addressing the normative basis of responsiveness, offer some thoughts about social context before concluding with a defence of responsiveness.

Why Now?

I have addressed technical reasons for the rise of responsiveness in previous scholarship, attributing it to “the development of context-sensitive, general principles of administrative law; and the more expansive reasons and records on which administrative decisions are nowadays based”.[1] As far as context-sensitive principles are concerned, I have suggested that “the development of a culture of justification is much easier where the law of judicial review of administrative action is context-sensitive and does not depend on categorical analysis”: “my hypothesis is that the decoupling of administrative law from the prerogative writs and the rise of contextual analysis facilitated the rise of a culture of justification”.[2] And as far as expansive reasons and records are concerned, a judge can now apply focus to the “internal coherence of the reasons given, interrogating whether they do indeed justify the decision given”: “A judicial review judge is likely to consider that she has the capacity to test whether the decision-maker’s conclusions follow from their premises: there is no special expertise required to assess whether a decision is logical and rational, or whether it is justifiable in view of the relevant legal and factual constraints”.[3]

No seed flourishes in barren ground, however. Administrative law, like any set of legal principles, is a creature of its time. If responsiveness were not an important social concern, it would probably not be a legal concern either. Indeed, we live now in an era of responsive government, where elected officials are constantly in contact with the citizenry and continually revising policies to better reflect and respond to the perceived desires of individuals. There has been a marked shift in recent decades. Griffith and Street remarked in the 1950s that “[r]esponsibility to Parliament is not the only kind of responsibility to the people but so far the other kinds have not been developed”.[4] Since then, the ‘New Administrative Law’[5] has seen the introduction of institutions of the “integrity branch”[6] of government – statutory reason-giving requirements, freedom of information legislation, ombuds – designed to make the state more transparent and accountable. Meanwhile, the rise of social media has meant that the individual takes centre stage in the public sphere: everyone has access to public officials at all times and can avail of a platform to express their views, to an audience of potentially millions. Today’s politicians and public officials are embedded in interlocking webs of accountability, responsive not just to parliamentary questions but also to popular pressure; this pressure is channelled less through political parties, which have been hollowed out, than it is through interest groups and social media. In an era in which responsiveness of politicians and public officials has become so important, it is no accident to see contemporary courts imposing requirements of reasoned decision-making on public administration.

Why Ever?

So much for the ‘why now’. The more important question is, ‘why ever’. If responsiveness is part of the law – as it certainly is in Canada and Ireland – is it justifiably so? I think it is.

First, responsiveness places the individual at the centre of the administrative process. It is their concerns that must be addressed by the decision-maker. Demanding a reasoned basis for decision treats individuals as rational autonomous agents deserving of being treated with dignity. Where reasons are responsive the individual is not treated as a mere subject, upon whom outcomes are imposed from the top down, but rather as an active participant in the process.

Second, responsiveness enhances the effectiveness of administrative decision-making by requiring that a decision-maker address all relevant points before making a decision. A responsive decision may be a slightly longer one but even responsive decisions can be brief and to the point – an obligation of responsiveness is not an obligation of prolixity. In any event, responsiveness enhances the public acceptability of administrative decision-making, as it is:

… fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.[7]

Third, in all probability, responsiveness enhances accuracy. A careful analysis that responds to an individual’s submissions is more likely to reveal shortcomings in the decision-maker’s intuitive, instinctive conclusions and prompt them to provide additional nuance.

Fourth, responsiveness does not compromise any separation of functions between decision-makers and the courts. On the merits of any particular decision, the ultimate conclusion remains that of the decision-maker. As explained above, conclusions on responsiveness are binary – the constraints are objective, with their presence or absence to be determined by the reviewing court and, similarly, the absence of any reasons can be determined objectively. In a series of recent Canadian cases, it was disregard of legal or factual constraints that had been put before the decision-maker that proved fatal to the reasonableness of the decisions in question.[8] Where reasons are present there is, admittedly, the further step of assessing whether those reasons are adequately responsive to what was put before the decision-maker – but, again, the focus is on responsiveness, not on the merits of the decision ultimately made or on the weight given by the decision-maker to different considerations.

[1] “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021) 100 Supreme Court Law Review (2d) 279, at p. 296.

[2] Ibid., at pp. 297-298.

[3] Ibid., at pp. 298-299.

[4] John Griffith and Harry Street, Principles of Administrative Law (Pitman, London, 1952), at p. 25.

[5] See e.g. Yee-Fui Ng, “Institutional Adaptation and the Administrative State” (2014) 44 Melbourne University Law Review 889. See also Sarah Nason, “The ‘New Administrative Law’ of Wales” [2019] Public Law 703.

[6] James Spigelman, “The Integrity Branch of Government” (2004) 78 Australian Law Journal 724.

[7] [2019] IESC 90, at para. 57.

[8] Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 (failure to consider arguments based on statutory context); Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (failure to consider evidence that a positive decision would further the objectives underlying the constitutional protection of minority language rights); Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 (failure to consider arguments based on statutory purpose and constitutional conventions).

This content has been updated on May 8, 2024 at 10:12.