The Survival of Reasonableness Review: Confirming the Boundaries

Date01 March 2018
Published date01 March 2018
DOI10.22145/flr.46.1.6
Subject MatterArticle
THE SURVIVAL OF REASONABLENESS REVIEW:
CONFIRMING THE BOUNDARIES
Swati Jhaveri*
ABSTRACT
Predictions have been made a bout the inevitable demise of judicial review of executive
action on the grounds of reasonableness for some time. This is especially heightened as
and when other substantive grounds of judicial reviewfor example, proportionality
and review for material error of factemerge and gain traction. It is argued that these
newer grounds are much better suited to the task of reviewing the substance of executive
decision-making and they, therefore, reduce the appetite for reasonableness review. This
paper considers attempts to retain such review in England, Australia and Canada,
notwithstanding the flourishing of other sub stantive grounds of review. It evauates the
reasons, particular to each jurisdiction, for retaining reasonableness review. In the
English context, it could be a useful tool to slow down advances in the scope of review.
In the Australian context, it could be a suitable vehicle for the incremental expansi on of
substantive review relative to proportionality, in a way that is not too disruptive of the
relatively conservative approach to judicial review on que stions of substance. In the
Canadian context, it is the only counterpoint availabl e to correctness as a standard of
review in the area of substantive review. It could be argued that the retent ion of a
standard of reviewlike reasonablenessthat has a tendency towards deference is
misplaced in an era where there a ppears to be a growing interest in strengthening a
culture of justification in the executive through stronger judicial review. Here the aims
of the paper are modest. It is not being suggested that reasonableness review should be
the sole or primary ground for substantive review. Instead, the pa per argues that there is
some merit in retaining a tool that is more readily capable of a deferential application
(relative to proportionality or correctness as standards of review). The merit of
reasonableness review lies in its cautious approach rather than its potential to grow into
a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in
todays substantive review landscape.
* Assistant Professor, Faculty of Law, National University of Singapore. I would like to thank
the anonymous reviewer, Matthew Groves and Greg Weeks for their input on this piece. All
errors and omissions are my own.
138 Federal Law Review Volume 46
_____________________________________________________________________________________
the day will come when it will be more widely recognised that [Wednesb ury] was an
unfortunately retrogressive decision in English administrative law.
1
there are cases where the rationality of a decision is the only cri terion which is capable
of judicial assessment.
2
I INTRODUCTION
The seeds for the demise of reasonableness review were apparent as soon as it was first
formalised as a ground of review.
3
Lord Greene MRs judgment in A ssociated Provincial
Picture Houses Ltd v Wednesbury Co
4
set the bar for applicants high, almost impossibly so,
in defining unreasonable as something so absurd that no sensible person could ever
dream that it lay within the powers of the authority a decision that no reasonable
body could have come to.
5
The concern with courts overstepping their remit and
embarking on a review of the merits of a decision was at the forefront of Lord Greene
MRs mind and the threshold was offered as reassurance.
6
As Lord Greene MR himself
admitted, it would be in the most exceptional and extraordinary of circumstances that
something would be considered unreasonable in these terms, especially once the
decision in question has passed the legality threshold.
7
On t his basis, reasonableness
review should have died an early death. However, it persisted. In subsequent decisions,
the courts altered the threshold and, in some instances, lowered it significantly for the
applicant.
8
Even where the courts did not vary the threshold as such, they applied it to
strike down decisions that arguably fell far short of the original high threshold.
9
In these
1
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 549 [32] (Lord Cooke).
2
R (Carlile) v Secretary of State for the Home Department [2015] AC 945, 970 [32] (Lord Sumption
SCJ).
3
This pa per uses the phrase reasonableness review to refer to all forms of irrationality,
unreasonableness, Wednesbury-style review. It is only in very few and now diminishing
contexts that the precise vocabulary used appears to makes a difference to the nature of
review: see Mark Aronson, The Growth of Substantive Review: the Changes, their Causes
and their Consequences in John Bell et al (eds), Public Law Adjudication in Common Law
Systems: Process and Su bstance (Hart Publishing, 2016) 118; Carol Harlow and Richard
Rawlings, Law and Administration (Cambridge University Press, 3rd ed, 2009) 1067.
4
[1948] 1 KB 223 (Wednesbury).
5
Ibid 22930 (Lord Greene MR).
6
Some would argue that these attempts at maintaining a distinction between legality and
merits review is futile an d illusory: Peter Cane, Merits Review and Judicial Reviewthe
AAT as Trojan Horse (2000) 28 Federal Law Review 213, 221. See also critical comments by
judges on the dressing up of merits review to look like procedural or legality-based review
(or merits review in drag): Powerco Ltd v Commerce Commission [2006] NZHC 662 (9 June
2006) [24] (Wild J); Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA
109 (10 June 2010) [58] (Owen JA).
7
There are few instances where decisions have been found to be so illogical: see, eg, West
Glamorgan County Council v Rafferty [1987] 1 WLR 457 (Court of Appeal) (council had decided
to evict gypsies from land after years of being in breach of its own statutory duty to provide
adequate accommodation for gypsies residing in the area).
8
Lord Lester and Jeffrey Jowell, Beyond Wednesbury: Substantive Principles of
Administrative Law [1987] Public Law 368, 3713.
9
Hall v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 (Court of Appeal) (conditional
grant of planning permission for the industrial use of land on the condition that the plaintiff
build an ancillary road to relieve traffic, at the plaintiffs expense and without any

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