What Makes an Administrative Decision Unreasonable?
| Published date | 01 March 2021 |
| Author | Hasan Dindjer |
| Date | 01 March 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12581 |
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Modern Law Review
DOI:10.1111/1468-2230.12581
What Makes an Administrative Decision Unreasonable?
Hasan Dindjer∗
The nature of reasonableness review in administrative law has long been obscured behind vivid
but uninformative descriptions. In recent years, courts and commentators have recognised that
reasonableness review involves assessment of the weight and balance of reasons bearing on a
decision. Yet by itself this idea is substantially incomplete, for there are many ways in which
issues of weight might be relevant.Drawing on the theory of practical reason, this article oers
a new account of the reasonableness standard that explains precisely how the weight of reasons
matters.It shows, negatively,that several existing accounts are mistaken.Positively,it proposes that
reasonableness be understood as a requirement of ‘relativised justication’: a decision must be
justied relative to some eligible understanding of the balance of reasons.This account explains
the standard’s central features and yields a coherent, workable test for courts to apply.
INTRODUCTION
What is it for a public authority’s decision to be unreasonable, in the sense rel-
evant for judicial review? In Associated Provincial Picture Houses Ltd vWedn esb ur y
Corporation1(Wed n es bu ry ) and the following decades, judicial glosses on un-
reasonableness accumulated: unreasonable decisions were said to be ‘absurd’,2
‘perverse’,3or especially ‘outrageous in [their] deance of logic or of accepted
moral standards’.4Such formulations conveyedthat unreasonableness was a high
hurdle but did little to allay concerns that it was a fundamentally obscure con-
cept.5A standard of review must, after all, have some underlying content –
some conceptual structure that makes it more than just a call for deference.6
And it has anyway long been clear that reasonableness review is not always
∗Examination Fellow, All Souls College, Oxford. For comments on previous drafts of this paper,
I thank Leo Boonzaier, Achas Burin, Andrew Burrows, Paul Craig, Cécile Fabre, Les Green, Chris
Himsworth,David Louk, Aileen Kavanagh,James Manwaring, Gonçalo Almeida Ribeiro,Leah True-
blood, two anonymous reviewers for the Modern Law Review, and audiences at Católica Global
School of Law,the University of Edinburgh, the Tarello Institute for Legal Philosophy, Genoa, and
YaleLaw School. I am especially grateful to John Gardner, who was typically generous of his time and
perceptive in his insights in discussion of an early draft,and to Timothy Endicott, for his invaluable
feedback on this paper and the wider project.
1Associated Provincial Picture Houses Ltd vWed n e sb u r y C or p o r at i o n [1948] 1 KB 223.
2ibid, 229.
3RvHillingdon LBC, ex p Puhlhofer [1986] AC 484, 518C.
4Council of Civil Service Unions vMinister for The Civil Service [1985] AC 374, 410G.
5 See, for example, A. Lester and J. Jowell,‘Beyond Wednesbury:Substantive Principles of Admin-
istrative Law’ [1987] Public Law 368.
6 As Wilberg and Elliott note, reasonableness and proportionality are sometimes treated simply as
proxies for less and more intr usive review respectively: H. Wilberg and M. Elliott, The Scope and
Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing 2015) 34.
© 2020 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(2) MLR 265–296
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
What Makes an Administrative Decision Unreasonable?
or essentially characterised by a highly deferential approach: its intensity varies
depending on the gravity of the interests at stake.7Acknowledging this, how-
ever,still does not tell us what unreasonableness consists in. It does not explain
what the requirement of reasonableness is, such that it can be applied more or
less intensively.
One approach to this question considers dierent ways decisions can be un-
reasonable, as in Paul Daly’s fruitful exploration of several ‘indicia’ of unrea-
sonableness, such as illogicality and dierential treatment.8This leaves open,
though, what exactly these are indicia of. Indicia are epiphenomena; they are
symptoms. (Sneezing and a runny nose are indicia of a cold but not constitutive
of one.) We should want an account of reasonableness in administrative law
that exposes its deep structure and explains what, if anything, makes dierent
varieties of unreasonableness all manifestations of the same defect.
In recent years, scholars and judges have begun to undertake this task. Paul
Craig has argued persuasively that reasonableness involves ‘review of the weight
and balance accorded by the primary decision-maker’ to relevant considera-
tions.9Craig’s view has been endorsed widely in terms in the Supreme Court
–inKennedy vCharity Commissioners by Lord Mance (with whom Lords Neu-
berger and Clarke agreed)10 and in Pham vSecretary of State for the Home De-
partment by Lord Carnwath (with whom Lord Neuberger, Baroness Hale, and
Lord Wilson a greed)11 and Lord Reed.12
This represents an important advance, but it too leaves much open. For it
does not tell us how the weight and balance of considerations matter for rea-
sonableness review. There are many possibilities.Reasonableness review might
require that a public authority act for real, or weighty,or relatively weighty rea-
sons; or only that sucient reasons exist to support a decision, whether or not
they were acted on; that it not err as to the weight of applicable reasons, or not
err too much, or that the overall balance it strikes be justied, or not too far o
being justied. These and other possibilities suggest that, to explain what the
reasonableness standard consists in,it is not enough to say that it has to do with
the weight or balance of reasons. We must explain how precisely it has to do
with these ideas.
I oer an explanation of this kind in this paper. To do so, I bring to bear
on the positive law tools from the philosophy of practical reason. Although
proportionality, the main alternative to reasonableness, is well served by such
theoretical work,13 there is little concer ning reasonableness review.14 A sizeable
7 Laws LJ described this proposition as ‘well established’ in RvSecretary of State for Education and
Employment, ex p Begbie [2000] 1 WLR 1115, 1130B-C. On the not insignicant success rate in
practice of reasonableness arguments,see A. Le Sueur,‘The Rise and Ruin of Unreasonableness?’
(2005) 10 Judicial Review 32.
8 P.Daly, ‘Wednesbury’s Reason and Str ucture’[2011] PL 238.
9 P.Craig, ‘The Nature of Reasonableness Review’ (2013) 66 Cur rent Legal Problems 131, 132.
10 Kennedy vCharity Commissioners [2014] UKSC 20, [2015] AC 455 at [54].
11 Pham vSecretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591 at [60].
12 ibid at [112], [114].
13 The seminal example is R. Alexy, A Theory of Constitutional Rights (Oxford: OUP, 2002).
14 Notable exceptions include J. Gardner, ‘The Many Faces of the Reasonable Person’ (2015) 131
Law Quarterly Review 563; J. Grant, ‘Reason and Authority in Administrative Law’ (2017) 76
Cambridge Law Journal 507.
266 © 2020 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(2) MLR 265–296
Hasan Dindjer
literature compares reasonableness and proportionality, but without the benet
of the kind of account of reasonableness that I develop here.15 My direct aim
here is not to oer another comparison of reasonableness and proportionality,
but rather to understand the fundamentals of one half of that comparison. Nev-
ertheless, this investigation has implications for the comparative question, and I
touch on these in the concluding section.
My central argument is that the standard of reasonableness demands relativised
justication.For a decision to be reasonable it must be justied relative to,or from
the perspective of, some eligible view of the balance of reasons. A view of the
balance of reasons is eligible just if it is one which the court, considering its
institutional and constitutional position, properly regards as a permissible basis
for the decision. A decision is justied relative to an eligible view just if it is
taken for reasons which are, from the perspective of such a view, undefeated –
not outweighed, excluded, and so on. That is the most precise for mulation
of my claim, which I will elaborate in what follows. It can also be put more
simply: reasonableness review asks whether a decision is justied by the reasons
for which it was taken, while deferr ing, as context demands, as to the weights
of the reasons for and against the decision.
This position is ultimately, I believe, intuitive, but it is not uncontroversial.
Establishing it will require critiquing various alternative proposals. My plan is
as follows. I begin by arguing that, whatever else it requires, the reasonable-
ness standard assesses decisions by reference to the reasons that motivated the
decision-maker, so that a decision may not be defended via ex post facto rea-
soning. The next sections critique, rst, the view that the standard requires
justication simpliciter and, second, what I ter m simple threshold views, which
take reasonableness to involve only acting for some reason or weighty reason.
The justication view suggests the law is more demanding than it really is,
while simple threshold views, lacking the resources to explain how reasonable-
ness depends on the balance between conicting reasons, see it as implausibly
undemanding. The remainder of the paper develops the positive proposal that
reasonableness requires relativised justication, showing how it underlies var-
ious facets of reasonableness review and explaining its application in practice.
I also discuss how it is dierent from – and preferable to – views which tie
unreasonableness to the misweighting of particular reasons. Erring as to the
weight of a reason can make a decision unreasonable, but does not do so auto-
matically. I conclude with brief reections on how the analysis might bear on
the reasonableness-proportionality debate (although that is not my focus in this
paper).
It will help at the outset to clarify the scope of my discussion. First,I will be
concerned with reasonableness review only inasmuch as it is used as a ground
of judicial review of discretionary decisions, and in particular as a standard of
substantive review, which I understand to mean review of a decision in terms of
whether it is suciently supported by reasons.16 Secondly,my aim is to uncover
15 See especially the 2010 special issue of the New Zealand Law Review and the several relevant
papers collected in Wilberg and Elliott, n 6 above.
16 This intentionally leaves open whether the reasons must be the decision-maker’s reasons or just
any reasons the court identies. What sucient support by reasons amounts to is,of course, the
© 2020 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(2) MLR 265–296 267
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