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 Wednel

quash decisions that are "coldly rational".7 Bui

criticism, Paul Craig has added that continued
Wednesbury's Reason and Structure on dishonesty:
"If the courts really were to restrict n
Paul Daly absurdity then we would all be out of ~
would be almost no successful challeng~
University ofOttawa
Thirdly, Wednesbury is:
~ Judicial decision-making; Justification; Wednesbury unreasonableness "confusing and tautologous ... It allows tl
that are unreasonable, and then defines ani
Criticising Wednesburyl is de rigeur in legal circles. I want to suggest, however,
no reasonable authority would take.,,9
that a proper consideration of unreasonableness in the judicial review contexe
leads to some surprising conclusions. The criticisms of Wednesbury can be Ultimately, Lester and Jowell concluded:
addressed and Wednesbury itself can be cast in a new light. Unreasonableness does
"the Wednesbury test, because of its vagu~
not necessarily lack intemallogic and structure. Nor is it necessarily an invitation
social and economic preferences more ~
to judicial subjectivity and value judgments. In fact, unreasonableness properly
they to be guided by established legal prj
understood requires both judges and administrative decision-makers to explain "

their decisions in a coherent manner. It is a repository of important values that Instead, the "substantive principles" hiding be~
may change over time. I will argue that a redefinition of unreasonableness is not into the foreground," and a test of proportionil
only possible, but desirable. Allied to Lester and Jowell's strong attack,ll
Wednesbury would become irrelevant. A "sub!
What's wrong with Wednesbury? to moderate the harshness of the Wednesbury 1
inte.r~sts were affected, b.y requiri~g a I;evii
Under the standard of Wednesbury unreasonableness' a reviewing court may strike
deClsIOns to the "most anxIOUS scrutmy".. pr~
a decision down only where the decision is "so unreasonable that no reasonable standard of review in many cases arising und
authority could ever have come to it" :Wednesbury has been under sustained attack the European Communities Act 1972. It was
for several decades. Lord Lester and Jeffrey Jowell argued in a seminal articleS
dev"opm""',, Wednesbury wa< in "tennimd d~
that Wednesbury unreasonableness has three serious flaws. First, to label a decision
"unreasonable" is conclusory and does not give an intellectually honest reason for
reaching the conclusion ofunreasonableness. This "naturally encourages suspicion
that prejudice or policy may be hiding beneath Wednesbury's ample cloak".6
Secondly, Wednesbury is unrealistic, because reviewing courts actually sometimes
7 Lord Lester and Jeffrey Jowell, '"Beyond Wednesbury: Subs
P.L. 368, 372.
8 "Unreasonableness and Proponionality in UK Law" in Evelyn
I Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948]1 K.B. 223. Laws 0/ Europe (Oxford: Han. 1999) p.95.
'I exclude consideration of unreasonableness in the tort context. But see Tom Hickman, "The Reasonableness 9 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Subs
Principle: Reassessing its Place in the Public Sphere" (2004) 63 C.LJ. 166 for a discussion ofhow similar conceptions P.L. 368, 372.

of unreasonableness might be appropriate in private and public law. 10 Lord Lester and Jeffrey Jowell. "Beyond Wednesbury: Subs

1 Wednesbury unreasonableness has typically had two connotations. It can be used to refer to the general grounds P.L. 368. 381.
of judicial review, such as failure to consider relevant factors, fettering discretion, error oflaw, exercising a power II Lord Lester and Jeffrey JowelL "Beyond Wednesbury: Subs
in bad faith or to pursue an improper purpose, and so on. It can also be used to refer to a particular ground of review. PL. 368, 374.
where the decision-maker has acted so unreasonably that the decision is unlawful. See Carol Harlow and Richard 12 "Proponionality: Neither Novel nor Dangerous" in Jeffrey Jo
Rawlings, Law and Admini.Hration, 3rd edn (Cambridge: Cambridge University Press, 2009) pp.42-44. I am using Judicial Review (London: Stevens, 1988) p.51; Garrett Wong, "T,
it here in the latter sense. the Objeetions to Proponionality" [2000] P.L. 92.
4 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] I K.B. 223, 230. Sometimes this sense of I' For a strong retort, see Lord Irvine ofLairg. "Judges and Decisi,
WednesbUlY has been termed irrationality: "By 'irrationality' I mean what can by now be succinctly referred to as Review" [1996] P.L. 59. See also Mark Elliott, "The Human Rights
'Wednesbury umeasonableness'''. Council o/Ol'il Service Unions v Minister/or the Civil Sen'ice [1985] A.C. 374, (2001) 60 C.L.J. 301.
410 per Lord Diplock. I generally prefer the term unreasonableness, because irrationality has pejorative connotations. 14 Martin Norris, "Ex Parte Smith: Irrationality and Human Ri
See Robert Camwath, "The Reasonable Limits of Local Authority Powers" [1996] P.L. 244, 253-255; Paul Walker, 15 Bugdaycay v SecretorI' a/State/or the Home Department [I
"What's Wrong with Irrationality?" [1995] P.L. 556, 569; William Wade and Christopher Forsyth, Administrative For a further development ofthe test, see R. v Ministry a/Defence
Law, 10th edn (Oxford: Oxford University Press, 2009) p.296. question, however, whether the change actually made a difference
5 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987] Rights and Substantive Ultra Vires" in Christopher Forsyth (ed.)Ji
P.L. 368. 2000) p.252.
6 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987] 16 R. (on the application a/Association a/British Civilian Inle,
P.L. 368, 372. Defence [2003] EWCA Civ 473; [2003] Q.B. 1397,1412-1414. I

238 [2011J P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (PfOfes1

I

ason and Structure
ification; Wednesbury unreasonableness
r in legal circles. I want to suggest, however,
2
easonableness in the judicial review context
ions. The criticisms of Wednesbury can be
be cast in a new light. Unreasonableness does
.and structure. Nor is it necessarily an invitation
judgments. In fact, unreasonableness properly
d administrative decision-makers to explain
er. It is a repository of important values that
that a redefinition of unreasonableness is not
unreasonableness 3 a reviewing court may strike
, ision is "so unreasonable that no reasonable
".4Wednesbury has been under sustained attack
, d Jeffrey Jowell argued in a seminal articleS
bas three serious flaws. First, to label a decision
. not give an intellectually honest reason for
leness. This "naturally encourages suspicion
hiding beneath Wednesbury's ample cloak".'
, because reviewing courts actually sometimes
ildnesbury Corp [1948] 1 K.B. 223.
the tort context. But see Tom Hickman, "The Reasonableness
"(2004) 63 C.LJ. 166 fOT a discussion of how similar conceptions
: and publiciaw.
two connotations. It can be used to refer to the general grounds
factors, fettering discretion, error of law, exercising a power
10 on. It can also be used to refer to a particular ground of review,
tbat the decision is unlawful. See Carol Harlow and Richard
'dge: CaD3bridge University Press, 2009) pp.42-44. I am using
bury Corp [1948] I K.B. 223, 230. Sometimes this sense of
'onaiity' I mean what can by now be succinctly referred to as
Service Unions v Minister/or the Civil Service [1985] A.C. 374,
leness, because irrationality has pejorative connotations.
Authority Powers" [1996] P.L. 244, 253-255; Paul Walker,
569; WilliaD3 Wade and Christopher Forsyth, Administrative
2009) p.296.
: Substantive Principles of Administrative Law" [1987]
. Substantive Principles of Administrative Law" [1987]
Wednesbury's Reason and Structure 239
quash decisions that are "coldly rational".' Building on Lester and lowell's second
criticism, Paul Craig has added that continued invocation of Wednesbury borders
on dishonesty:
"If the courts really were to restrict rationality review to such manifest
absurdity then we would all be out of business, in this area at least. There
would be almost no successful challenges of this kind.""
Thirdly, Wednesbury is:
"confusing and tautologous ... It allows the courts to interfere with decisions
that are unreasonable, and then defines an unreasonable decision as one which
no reasonable authority would take."9
Ultimately, Lester and lowell concluded:
"the Wednes bury test, because of its vagueness, allows judges to obscure their
social and economic preferences more easily than would be possible were
they to be guided by established legal principle."'o
Instead, the "substantive principles" hiding behind Wednesbury should be brought
into the foreground, II and a test of proportionality introduced. 12
Allied to Lester and lowell's strong attack,'3 other developments suggested that
Wednesbury would become irrelevant. A "sub-Wednesbury" test 14 was developed
to moderate the harshness of the Wednesbury standard in cases where important
interests were affected, by requiring a reviewing court to subject impugned
decisions to the "most anxious scrutiny"." Proportionality provides the operative
standard of review in many cases arising under the Human Rights Act 1998 and
the European Communities Act 1972. It was suggested that as a result of these
developments, Wednesbury was in "terminal decline"'6 and that the House of Lords
'Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987]
PL 368, 372.
""Unreasonableness and Proportionality in UK Law" in Evelyn Ellis (ed.) The Principle o[Proportionality in the
Laws o[Europe (Oxford: Hart, 1999) p.95.
9 Lord Lester and Jeffrey Jowell. "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987]
P.L. 368. 372.
10 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987]
P.L. 368, 381.
II Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987]
P.L. 368, 374.
12 "Proportionality: Neither Novel nor Dangerous" in Jeffrey Jowell and Dawn Oliver (eds), New Directions in
Judicial Review (London: Stevens. 1988) p.51; Garrett Wong. "Towards the Nutcracker Principle: Reconsidering
the Objections to Proportionality" [2000] P.L. 92.
13 For a strong retort, see Lord Irvine ofLairg. "Judges and Decision-makers: the Theory and Practice ofWednesbury
Review" [1996] P.L. 59. See also Mark Elliott, "The Human Rights Act 1998 and the Standard of Substantive Review"
(2001) 60 C.L.J 301.
14 Martin Norris, "Ex Parte Smith: Irrationality and Human Rights" [1996] P.L. 590, 594.
" Bugdaycay v Secretary o[State/or the Home Department [1987] A.C. 514, 531 per Lord Bridge of Harwich.
For a further development ofthe test, see R. v Ministry o[De[ence Ex p. Smith [1996] Q.B. 517. One might legitimately
question, however, whether the change actually made a difference in practice. See David Feldman, "Convention
Rights and Substantive Ultra Vires" in Christopher Forsyth (ed.) Judicial Review and the Constitution (Oxford: Hart,
2000) p.252.
16 R. (on the application o[Association o[British Civilian Internees (For East Region)) v Secretor,' o[State/or
De[ence [2003] EWCACiv 473; [2003] Q.B. 1397, 1412-1414.
[2011] P.L., April I&l2011 Thomson Reuters (Professional) UK Limited and Contributors
240 Public Law Wednesbl

should perform the "burial rites"." However, it has survived ifnot thrived. 18 Reports of Canada and the Supreme Court of the Unitec
of its demise have been greatly exaggerated, as some sceptics have graciously was originally whether a decision was "so patel
appreciated. 19 be rationally supported by the relevant legislati
the court upon review",'4 which was then supplen
What does unreasonableness actually mean? required the reviewing court to test the impugne
could withstand a "somewhat probing examinati
Because the pipes have not yet begun to play for Wednesbury, it seems prudent to merged into one general standard:
conduct a close examination of Wednesbury unreasonableness, to see if it ought
to be retained in spite of the strong criticism it has attracted. The natural question "A court conducting a review for reasonab
is: what does unreasonableness actually mean? To describe a decision as that make a decision reasonable, referring t
unreasonable tells us nothing of why the decision is unreasonable: the reasons and to outcomes. In judicial rev
mostly with the existence of justification,
"The incantation ofthe word 'unreasonable' simply does not provide sufficient
within the decision-making process. But it
justification for judicial intervention. Intellectual honesty requires a further
the decision falls within a range of possible
and better explanation as to why the act is unreasonable.,,20
defensible in respect of the facts and law.":U
Even if one were to say that a decision would be unreasonable if:
In the United States, the test announced in the Ch
"so outrageous in its defiance of logic or of accepted moral standards that no court to uphold interpretations of law unless (5
sensible person who had applied his mind to the question to be decided could clearly expressed intent of Congress or (step 2),
have arrived at it"" looked at applications of the "arbitrary or capril
Administrative Procedure Ad9 :
it would still be necessary to ask why the decision defied logic or accepted moral
standards: "Normally, an agency rule would be arbitn
has relied on factors which Congress has no
"Rationality requires that decisions be made for reasons which are rational failed to consider an important aspect of the
in terms of our understanding of the world. But of course rationality is an
for its decision that runs counter to the evic
extremely complex notion; decisions can be more or less rational from implausible that it could not be ascribed to a
different points of view, and indeed what constitutes a rational decision may of agency expertise. ,,30
itself depend upon the objects to be achieved and the means available.""
My dataset is small, but of manageable proportic
A New Zealand judge has stated the problem in a more positive manner: century periods in each jurisdiction. To have 1001
"Ultimately, the Court must exercise a judgment in assessing the appellate-level decisions in each jurisdiction woul
reasonableness or unreasonableness of the authority's action, and what is as to provide an unmanageably large dataset. AU
required is assistance in the way that judgment is to be exercised."23 overview ofwhat makes a decision unreasonable: 1
a comprehensive study of standards ofunreasona:
In an attempt to provide some assistance in the exercise of such judgment, I have appellate-level decisions would perhaps be man
analysed a set of cases where an unreasonableness standard was imposed. I have period (e.g. 1998-2003), but choosing a period
analysed all of the Wednesbury decisions reached by the House of Lords. I have difficult to identify criteria which would justify a!
also analysed applications of unreasonableness standards by the Supreme Court restricting the dataset to decisions rendered withi
exclude the effects of interesting shifts injudici
"William Wade and Christopher Forsyth, Administrative Law, 9th edn (Oxford: Oxford University Press, 2004)
p.371.
egregious and therefore obviously unreasonable
18 Andrew Le Sueur, "The Rise and Ruin of Unreasonableness" [2005] LR. 32.
19 William Wade and Christopher Forsyth, Administrative Law, 10th edn (Oxford: Oxford University Press, 2009)
p.314.
20 Anthony Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles ofAdministrative Law" [1987]
P.L. 368, 371 (emphasis original). 24 Canadian Union a/Public Employees Local 963 v New Brunswl
21 Council of Civil Service Unions v Minister for the Civil Service [1985] A.c. 374, 410 per Lord Diplock. Dickson J.
22 Denis Galligan, Discretionary Powers: a Legal Study of Official Discretion (Oxford: Clarendon, 1986) p.5. 25 Canada (Director ofInvestigation and Research) v Southam [I
23 Waitakere City Council v Lovelock [1997] 2 NZLR 385, 403 per Thomas J. See also Royal Oak Mines v Canada 26 Dunsmuir v New Brunswick [2008] S.C.C 9; [2008]1 S.C.R. I
(Labour Relations Board) [1996]1 S.C.R. 369,409 per Cory L My approach is thus at odds with that of Evan 27 Chevron USA Inc v Natural Resources Defence Council (1984)
Fox-Decent, who argues that administrators should be held to a general standard ofreasonableness, met by adherence 28 Elizabeth Magill, "Step Two of Chevron v National Resources
to a variety of principles."The Internal Morality of Administration: the Form and Structure of Reasonableness" in Herz (eds) A Guide to Judicial and Political Review ofFederal Agel
David Dyzenhaus (ed.) The Unity of Public Law (Oxford: Hart, 2004) p.l43. In my view Fox-Decent's approach, 29 Administrative Procedure Act 5 U.S.C. 706(2)(A).
though normatively attractive, tilts the balance too far in favour of the individual. 30 Motor Vehicle Manufacturers Assoc v State Farm Mutual Auto.
I
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [20 II] P.L., April 20 II Thomson Reuters (professi01

!

rHowever, it has survived ifnot thrived. J8 Reports
lexaggerated, as some sceptics have graciously
. 55 actually mean?
to play for Wednesbury, it seems prudent to
ednesbury unreasonableness, to see if it ought
criticism it has attracted. The natural question
actually mean? To describe a decision as
the decision is unreasonable:
unreasonable' simply does not provide sufficient
ention. Intellectual honesty requires a further
hy the act is unreasonable.,,20
of logic or of accepted moral standards that no
ed his mind to the question to be decided could
hy the decision defied logic or accepted moral
isions be made for reasons which are rational
of the world. But of course rationality is an
ecisions can be more or less rational from
eed what constitutes a rational decision may
to be achieved and the means available."22
problem in a more positive manner:
't exercise a judgment in assessing the
leness of the authority'S action, and what is
y that judgment is to be exercised.,,23
ce in the exercise of such judgment, I have
onableness standard was imposed. I have
'sions reached by the House of Lords. I have
nableness standards by the Supreme Court
bleness" [2005] J.R. 32.
. tralive Law, 10th edn (Oxford: Oxford University Press, 2009)
buIy: Substantive Principles ofAdministrative Law" [1987]
(Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 241
of Canada and the Supreme Court of the United States. The standard in Canada
was originally whether a decision was "so patently unreasonable that [it] cannot
be rationally supported by the relevant legislation and demands intervention by
the court upon review"," which was then supplemented by another standard, which
required the reviewing court to test the impugned decision to ascertain whether it
could withstand a "somewhat probing examination",25 before both standards were
merged into one general standard:
"A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.,,2.
In the United States, the test announced in the Chevron case 27 required a reviewing
court to uphold interpretations of law unless (step 1), they conflicted with the
clearly expressed intent of Congress or (step 2), they were unreasonable. 28 I also
looked at applications of the "arbitrary or capricious" standard contained in the
Administrative Procedure Ace9 :
"Normally, an agency rule would be arhitrary and capricious if the agency
has relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product
of agency expertise. ,,30
My dataset is small, but of manageable proportions, and covers similar late-20th
century periods in each jurisdiction. To have looked at, for example, intermediate
appellate-level decisions in each jurisdiction would have been to sweep so broadly
as to provide an unmanageably large dataset. All that is needed here is a general
overview ofwhat makes a decision unreasonable: I did not, in other words, conduct
a comprehensive study of standards of unreasonableness. A dataset of intermediate
appellate-level decisions would perhaps be manageable if confined to a particular
period (e.g. 1998-2003), but choosing a period raises problems of its own: it is
difficult to identifY criteria which would justifY a choice of a particular period and
restricting the dataset to decisions rendered within a particular period might totally
exclude the effects of interesting shifts in judicial attitudes. It is true that the most
egregious and therefore obviously unreasonable decisions will have been weeded
24 Canadian Union ofPublic Employees Local 963 V New Brunswick Liquor Corp [1979] 2 S.C.R. 227, 23 7 per
Dickson J.
25 Canada (Director ofInvestigation and Research) v Southam [1997] I S.C.R. 748 776 per Iacobucci J.
26 Dunsmuir v New Brunswick [2008] S.C.C 9; [2008] I S.C.R. 190,220-221 per Bastarache and LeBel J.1.
27 Chevron USA Inc v Natural Resources Defence Council (1984) 467 U.S. 837.
2S Elizabeth Magill, "Step Two of Chevron v National Resources Defence Council" in John DuffY and Michael
Herz (eds) A Guide to Judicial and Political Review ofFederal AgenCIes (American Bar Association, 2005) p.85.
29 Administrative Procedure Act 5 U.S.C. 706(2)(A).
30 Motor Vehicle Manufacturers Assoc v State Farm Mutual Automobile Insurance (1983) 463 U.S. 29.43.
[20 II] P.L., April 20 II Thomson Reuters (Professional) UK Limited and Contributors
242 Public Law Wednesblil
i
out by the time they reach the highest tribunal in a jurisdiction, but because I sought A second indicium is disproportionality: wb
simply to trace the contours of unreasonableness, this does not present a great given aim impose costs on an individual that
difficulty. benefit the decision-maker hopes to gain (or w.
An important caveat is that most of the cases addressed by the Supreme Court the aim, which would not have imposed such e,
of Canada, and all of the Chevron step 2 cases of the Supreme Court of the United been employed).38 The Conseil des Services
States, concern judicial review of interpretations of law, whereas the Wednesbury tribunal established in Quebec to govern labour,
standard applies to judicial review of exercises of discretion. 31 If one doubts the of public services. In Canadian Union o/Public
utility of a distinction between law and discretion," or thinks that interpretations (City)'" an application had been made to the C
of law should also in some circumstances be reviewed on a standard of action by city employees during the period of
unreasonableness,33 the caveat is not of great importance. Even if one wishes to granted an order preventing all city employees
retain the distinction, the contours of unreasonableness seem similar in both L'Heureux-Dub61. did not strike down the dec
contexts, although different factors may be more or less relevant depending on a submission that the order swept too broadly:
whether an interpretation of law or exercise of discretion is being reviewed.
"The [Conseil's] order in this case mi
Certainly, my analysis has suggested that the formal difference between law and
employer or employees as allowing the Ci
discretion does not affect how courts determine whether a decision was reasonable
all 'blue-collar' employees, at its behest,
or not.
for refusing, and for the entire period pre,
to strike. This would involve a direct tem:
Indicia of unreasonableness collective agreement, even in the absene,
The case law is (almost) resolutely opaque. Mysterious references by reviewing action, and may arguably not have withsto
courts to unreasonableness, multiple factors, judgment, and balancing are standard."40
commonplace. Therefore it was necessary to examine the case-law closely to However, the fact that the order was ull'
ascertain what reviewing courts take into account in determining whether or not proceedings reduced the effect of the dispropo
a decision is unreasonable. I have found that what I call "indicia" of
unreasonableness]4 exist. These are factors which lead a court to consider that a "the principle that contempt of court is slri,
decision is, or might be, unreasonable. to ensure that the quasi-penal sanctions
One indicium is illogicality: where the means chosen by a delegated representatives and those employees who Pi
decision-maker to achieve a particular aim are not apt to achieve the aim, the Thus the disproportionality was not fatal to the
inaptness points towards the decision being unreasonable. An excellent example the individual rights was inevitable in the eire
is Zenner v Prince Edward Island College of Optometrists," Several conditions not tainted by any illogicality"4
were imposed on Z before he could resume the practice of optometry in Prince
Edward Island. One ofthe requirements was the sitting ofan ethics exam. However,
the Supreme Court of Canada held, it was unreasonable of the College to impose
38 Note that I am using proportionality here in a narrower sense
a requirement that Z sit an ethics exam where "at the relevant time [no ethics course of review.
was] accredited or offered by the College or prescribed in the Regulations... ".]6 39 Canadian Union o[Public Employees, Local30i v Montreal {l
40 Canadian Union o[Public Employees, Local 301 v Montreal {l
A clearer illogicality than a purported imposition of the impossible is hard to 41 Canadian Union o[Public Employees, Local 301 v Montreal {l
imagine. 37 42 I have not encountered a decision struck down solely for dispr<
Home Department Ex p. Brind [1991] I A.C. 696 (having answered
proportionality standard would be generally applicable) Lord Bridg,
31 It may al80 apply to an application oflaw to fact (B. Smythe and C. T. Emery. "Error of Law in Administrative broadcasting the voices of members of proscribed organisations] rna:
Law" (1984) 100 L.Q.R. 612) by a decision-maker. See. e.g. Edwards (inspector o[Taxes) v Bairstow [1956] A.C. adverse criticism it provokes outweighs any benefit it achieves" but
14. R. v Monopolies and Mergers Commission Ex p. South Yorkshire Transport Ltd [1993] 1 WL.R. 23. "What is perhaps surprising is that the restriction imposed is of such
"See e.g. Baker v Canada (Minister[or immigration and Citizenship) [1999] 2 S.C.R. 817.853-854; Peter Hogg. the matter which may be broadcast, only on the manner of ils pres'
"The Jurisdictional Fact Doctrine in the Supreme Court ofCanada: Bell v Ontario Human Rights Commission" (1971) argued in Royal Oak Mines Inc v Canada (Labour Relations Board)
9 Osgoode Hall LJ. 204. 216; David Mullan. Admimstrative Law, 2nd edn (Toronto: Irwin Law, 2001) p.108; Michael was remarkable, due to the "unparalleled severity of this labour dis
Ta~fart. 'The Tub of Public Law~' in David Dyzenhaus (ed.) The Unity o[Public Law (Oxford: Hart, 2004) p.469. disproportionality was justified by these very extreme circumstances
.. See Paul CraIg, Admlllistrative Law, 6th edn (London: Sweet and Maxwell, 2008) pp.467-473.
unfortunate bargaining history and the effect of the dispute on the
34 Canada (immigration and Citizenship) v Khosa [2009] I S.C.R. 339, 360.
that a more effective remedy was required" at p.407. The "excepti
35 Zenner v Prince Edward island College o[Optometrists [2005] 3 S.C.R. 645.
p.414.
36 Zenner v Prince Edward Island College o{Optometrists [2005] 3 S.C.R. 645, 661.
43 "Where a right gained through collective bargaining is exercised
37 See also Allentown Mack and Sales v National Labour Relations Board (1998) 522 U.S. 359; Fawcett Properties
pressure tactics, preventive action to maintain public services will Di
Ltd v Buckingham CC [1961] A.C. 636. 674 (where a planning condition did not "become invalid because some the individuals involved in the conflict, lor these ends" Canadian Un,
persons may creep under the umbrella of the condition who may not have been contemplated as normal [beneficiaries]"); (Cit;') [1997J I S.C.R. 793. 832 (emphasis original).
Pension Benefit Guaranty Corp v LTV Corp (1990) 496 U.S. 633. 646. 4 Canadian Union o[ Public Employees, Local 301 v Montreal (0

[2011) P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professio:

ghest tribunal in a jurisdiction, but because I sought
f unreasonableness, this does not present a great
ost of the cases addressed by the Supreme Court
n step 2 cases of the Supreme Court of the United
of interpretations of law, whereas the Wednesbury
'ew of exercises of discretion." If one doubts the
law and discretion,J2 or thinks that interpretations
circumstances be reviewed on a standard of
IS not of great importance. Even if one wishes to
lours of unreasonableness seem similar in both
tors may be more or less relevant depending on
w or exercise of discretion is being reviewed.
ested that the formal difference between law and
urts determine whether a decision was reasonable
tely opaque. Mysterious references by reviewing
ultiple factors, judgment, and balancing are
necessary to examine the case-law closely to
. take into account in determining whether or not
I have found that what I call "indicia" of
. are factors which lead a court to consider that a
nable.
: where the means chosen by a delegated
icular aim are not apt to achieve the aim, the
ision being unreasonable. An excellent example
'nd College of Optometrists. JS Several conditions
ould resume the practice of optometry in Prince
ments was the sitting of an ethics exam. However,
ld, it was unreasonable of the College to impose
exam where "at the relevant time [no ethics course
e College or prescribed in the Regulations ... ".'6
orted imposition of the impossible is hard to
10 fact (8. Smythe and C. T. Emery, "Error of Law in Administrative
maker. See, e.g. Edwards (Inspector of Taxes) v Bairstow [1956] A.C.
Ex p. South Yorkshire Transport Ltd [1993] I W.L.R. 23.
igration and Citizenship) [1999] 2 S.C.R. 817, 853-854; Peter Hogg.
e Court ofCanada: Bell v Ontario Human Rights Commission" (1971)
dministrative Law, 2nd edn (Toronto: Irwin Law, 2001) p.108; Michael
aus (ed.) The Unity ofPublic Law (Oxford: Hart, 2004) pA69.
edn (London: Sweet and Maxwell, 2008) ppA67-473.
l' Khosa [2009] I S.C.K 339, 360.
o/Optometrists [2005] 3 S.C.R. 645.
a/Optometrists [2005] 3 S.C.R. 645, 661.
nal Labour Relations Board(l998) 522 U.S. 359; Fawcett Properties
where a planning condition did not "become invalid because some
dition who may not have been contemplated as normal [beneticiaries]");
(1990) 496 U.S. 633, 646.
son Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 243
A second indicium is disproportionality: where the means employed to attain a
given aim impose costs on an individual that are out of proportion to the wider
benefit the decision-maker hopes to gain (or where another means of achieving
the aim, which would not have imposed such costs on the individual, could have
been employed).J8 The Conseil des Services Essentiels was an administrative
tribunal established in Quebec to govern labour disputes pertaining to the provision
of public services. In Canadian Union ofPublic Employees. Local 30] v Montreal
(City)'" an application had been made to the Conseil in anticipation of concerted
action by city employees during the period of a holiday weekend. The Conseil
granted an order preventing all city employees from exercising their right to strike.
L'Heureux-Dube 1. did not strike down the decision, but recognised the force of
a submission that the order swept too broadly:
"The [Conseil's] order in this case might have been interpreted by the
employer or employees as allowing the City to insist on overtime hours from
all 'blue-collar' employees, at its behest, regardless of any potential reason
for refusing, and for the entire period preceding the acquisition of the right
to strike. This would involve a direct temporary suspension of a right in the
collective agreement, even in the absence of participation in a concerted
action, and may arguably not have withstood review even on the most deferent
standard."40
However, the fact that the order was ultimately enforceable by contempt
proceedings reduced the effect of the disproportionality:
"the principle that contempt of court is strictissimijuris would actually serve
to ensure that the quasi-penal sanctions ... will only target the union
representatives and those employees who participated in the overtime ban."4l
Thus the disproportionality was not fatal to the decision!2 Moreover, abrogating
the individual rights was inevitable in the circumstances 43 and the decision was
not tainted by any illogicality!4
38 Note that I am using proportionality here in a narrower sense than its possible adoption as an independent ground
of review.
39 Canadian Union ofPublic Employees, Local 301 v Montr.!al (City) [1997] I S.C.K 793.
40 Canadian Union ofPublic Employees, Local 301 v Montr.!al (City) [1997] 1 S.C.R. 793, 834.
41 Canadian Union ofPublic Employees, Local 301 v Montreal (City) [1997] I S.C.R. 793, 835.
42 I have not encountered a decision struck down solely for disproportionality. In R. v Secretary ofState for the
Home Department Ex p. Brind [1991] 1 A.C. 696 (having answered in the negative the question whether the
proportionality standard would be generally applicable) Lord Bridge of Harwich accepted that the "restriction [on
broadcasting the voices of members of proscribed organisations] may be counter-productive in the sense that the
adverse criticism it provokes outweighs any benetit it achieves" but noted that the restriction was proportionate:
"What is perhaps surprising is that the restriction imposed is of such limited scope. There is no restriction at all on
the matter which may be broadcast, only on the manner of its presentation" at p.749. Disproportionality was also
argued in Royal Oak Mines Inc v Canada (Labour Relations Board) [1996] I S.C.K 369, where the impugned order
was remarkable, due to the "unparalleled severity ofthis labour dispute" at pA06. In Cory J.'s view, any
disproportionality was justitied by these very extreme circumstances: "taking into account this prediction, the
unfortunate bargaining history and the effect of the dispute on the community, the Board was correct in recognising
that a more effective remedy was required" at pA07. The "exceptional situation called for exceptional measures" at
pA14.
43 "Where a right gained through collective bargaining is exercised collectively for the purposes of applying illegal
pressure tactics, preventive action to maintain public services will necessarily suspend the exercise ofthL~ righf, by
the individuals involved in the conflictJor these ends" Canadian Union ofPublic Employees, Local 30 I v Montreal
(City) [1997] 1 S.C.R. 793, 832 (emphasis original).
44 Canadian Union ofPublic Employees, Local 301 v Montreal (City) [1997] 1 S.C.R. 793, 833.
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
244 Public Law Wednesbl

A third indicium is inconsistency with statute. Various types of inconsistency The respondent's Indemnity and Administrativel
may be alleged, each of which is an indicium ofunreasonableness. I describe them a personal act, not a professional act, and that G d
in order of specificity. First, departure from the apparently plain meaning of the the indemnity fund. The Supreme Court of C/U
statute is an indicium of unreasonableness" s Secondly, a statutory duty may be Administrative Committee. Inter alia, Gonthi~
expressly provided for by the relevant statute and failure to fulfil it is also an indemnity fund was to reimburse individuals w~'
obvious indicium of unreasonableness,, 6 The third, fourth and fifth types of apply and that the Committee had failed to take
inconsistency refer to purpose, policy and value respectively. A purpose, policy when rendering its decision:
or value may underpin a statute or statutory provision and inconsistency with the
purpose, policy or value is an indicium of unreasonableness. 47 In addition, a
"by characterising the transaction as perso~
fraud outside the scope ofthe fund, thus rev
decision-maker may have developed a policy to help achieve the aim ofthe statutory
is intended to give."" .
scheme under which it operates. 48 It is appropriate to consider such matters because
of: A fourth indicium is differential treatment: whJ
with respect to similar factual situations, one ~
"the importance of the scheme and purpose of an Act in construing the
unreasonable. 53 Closely related to differential tr~
particular words used by the legislature to disclose its true intent.'''''
or unexplained changes in policy. Althou
In Giguere v Chambre des notaires du Quebec,sO F was the notary to an elderly decision-makers to change their policies, be
lady whose mental capacities were in decline. In one transaction, a valuable property response to changing circumstances, if a partic,
was transferred for $1. G became the lady's curator and in that capacity made be illegitimate. Thus, although policy changes
various claims from the respondent's indemnity fund. Seeking reimbursement is nonetheless an indicium ofunreasonablenes
from F was not possible, because he had been declared bankrupt, and F's In Federal Communications Commission v Fox
professional insurance did not extend to fraudulent acts. The relevant statute Court ofthe United States considered the issue
provided that the indemnity fund should be used: television licensees are not permitted to broadc
which contain "any obscene, indecent, or profi
"to reimburse the sums of money or other securities used by a notary for
the Commission's interpretation of the prohib
purposes other than those for which they had been delivered to him in the
Previously, it had distinguished between literal I
practice of his profession."5l
A once-off expletive, if used literally, was alw,'
prohibition. However, non-literal uses of ex
repeated. Thus a once-off, non-literal expletive
Commission decided to change its policy. It doub
4S See esp. National Labour Relations Board v Kentucky River Community Care (2001) 532 U.S. 706 and Whitman between literal and non-literal expletives; fe
v American Trucking Associations (2001) 531 U.S. 457 and see also Federal Reserve System v Dimension Financial
(1986) 474 U.S. 361, 368, Rustv Sullivan (1991) 500 U.S. 173, 184, Brown v Gardner (1994) 513 U.S. 115, Babbitt
once-off non-literal expletives would lead to m
v Sweel Home Chapter ofCommunities for a Great Oregon (1995) 515 U.S. 687, 697-700, Smiley v Citibank (North technological advances made the "bleeping out"
Dakota) (1996) 517 U.S. 735, Canada (Director ofInvestigation and Research) v Southam [1997] I S.C.R. 748,
Your Home Visiting Nurse Services Inc v Shalala (1999) 525 U.S. 449, 453-455. Macdonell v Quebec (Commission
of the distinction between literal and non-Ii
d'acces a I'information) [2002] 3 S.C.R. 661, Alberta Union ofPublic Employees v Lethbridge Community College intention to prefer a context-based inquiry into
[2004] 1 S.C.R. 727. Global Crossing Telecommunications v Metrophones Telecommunications (2007) 550 U.S. 45.
55. Entergy v Riverkeeper (2009) 129 S. Ct. 1498. 1505--1508.
whether they fell within the prohibition.56
46 R. v ChiefConstable ofSussex Ex p. International Trader's Ferry [1999] 2 A.C. 418, Chamberlain v Surrey
School District No.3 [2002] 4 S.C.R. 710.
47 "Parliament must have conferred the discretion with the intention that it should be used to promote the policy
and objects of the Act". Padfield v Minister for Agriculture, Fisheries and Food [1968] A.C. 997, 1030 per Lord
Reid. For purposes cases. see United Kingdom Assoc of Professional Engineers (UKAPE) v Advisory, Conciliation
and Arbitration Service (A CAS) [1981] A.C. 424, R. v Secretary ofState for the Environment Ex p. Nottinghamshire 52 Giguere v Chambre des notaires du Quebec [2004]1 S.c.R. 3,
CC [1986J A.C. 240, Japan Whaling Assoc v American Cetacean Sociery (1986) 478 U.S. 221, George v Devon CC de Levis [2007] I S.C.R. 591, 630-635. See also Lopez v Davis (200
[1989]1 A.C. 573, 604, Pauley v Bethenergy Mines (1991) 50 I U.S. 680, 706, Arkansas v Oklahoma (1992) 503 v Michigan (2002) 537 U.S. 36,46-47.
U.S. 91, Ill, Edelman v Lynchburg College (2002) 535 U.S. 106, 122. Barnhart v Walton (2002) 535 U.S. 212, 219,
5.1 See R. (on the application ofL (A Child)) v J School Governo
Chevron v Echazabal (2002) 536 U.S. 73, 84-85. For policies cases, see R. v Secretary ofStatefor Trade and Industry
the application of0 'Brien) v Independent Assessor [2007] UKHL 1
Ex p. Lonrho Pic [1989] 1 W.L.R. 525; [1989] 2 All E.R. 609, 620-62 I, Lopez v Davis (2001) 531 U.S. 230, 242-243,
below.
Yellow Transportation v Michigan (2002) 537 U.S. 36, 46-47, Giguere v Chambre des notaires du Quebec [2004]
54 Federal Communications Commission v Fox Television Statioj
I S.C.R. 3, Levis v Fraternite des policiers de Levis [2007] 1 S.C.R. 591, 630-635, Montreal (Ciry) v Montreal Port
55 18 USC 1464. See Federal Communications Commission v
Authority [2010] S.C.C. 14 [46-47]. For a values case. see Baker v Canada (Minister ofCitizenship and Immigration)
56 To take a topical recent example, when President Obama signed
[1999] 2 S.C.R. 817, 859-860
ceremony was covered live on television networks. Vice President
48 1 leave aside the question whether it may frustrate a legitimate expectation.
of the bill was "a big f* g deal" was picked up by television m'
49 Canadian Union ofPublic Employees v Ontario (Minister for Labour) [2003]1 S.C.R. 539, 589 per Binnie 1.
President's comment was a fleeting, non-literal expletive and woul.
so Giguere v Chambre des notaires du Quebec [2004] I S.C.R. 3.
broadcasting the comment was potentially punishable, though at th,
5\ Regulation respecting the indemnity fundofthe Chambre des notaires du Quebec, R.R.Q. 1981 c. N-2, r.8 s.2.01.
with the Commission.

[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L.. April 2011 Thomson Reuters (Professi.
 Wednesbury's Reason and Structure 245

ncy with statute. Various types of inconsistency

The respondent's Indemnity and Administrative Committees decided that this was
an indicium ofunreasonableness. I describe them
a personal act, not a professional act, and that G could thus not be reimbursed from
arture from the apparently plain meaning of the
the indemnity fund. The Supreme Court of Canada quashed the decision of the
nableness. 45 Secondly, a statutory duty may be
Administrative Committee. Inter alia, Gonthier 1. held that the purpose of the
levant statute and failure to fulfil it is also an
indemnity fund was to reimburse individuals when professional insurance will not
bleness. 46 The third, fourth and fifth types of
apply and that the Committee had failed to take the purpose ofthe fund into account
olicy and value respectively. A purpose, policy
when rendering its decision:
r statutory provision and inconsistency with the

"by characterising the transaction as personal, the two Committees took [the]
indicium of unreasonableness. 47 In addition, a

fraud outside the scope ofthe fund, thus revoking the very protection the fund
a policy to help achieve the aim ofthe statutory
is intended to give. ,,52
It is appropriate to consider such matters because
A fourth indicium is differential treatment: where different decisions are reached
with respect to similar factual situations, one or both of the decisions may be
erne and purpose of an Act in construing the
unreasonable.53 Closely related to differential treatment is a fifth: unacknowledged
legislature to disclose its true intent.'>49
or unexplained changes in policy. Although it is legitimate for delegated
ires du Quebec,s F was the notary to an elderly
decision-makers to change their policies, because they need to be flexible in
in decline. In one transaction, a valuable property
response to changing circumstances, if a particular change is not justified, it will
e the lady's curator and in that capacity made
be illegitimate. Thus, although policy changes are legitimate, a change in policy
ent's indemnity fund. Seeking reimbursement
is nonetheless an indicium of unreasonableness and legitimate only ifjustifiable.
use he had been declared bankrupt, and F's
In Federal Communications Commission v Fox Television Stations,54 the Supreme
extend to fraudulent acts. The relevant statute Court ofthe United States considered the issue ofchanges in policy. Under statute,
should be used: television licensees are not permitted to broadcast material containing utterances
which contain "any obscene, indecent, or profane language".55 Certain aspects of
money or other securities used by a notary for
the Commission's interpretation of the prohibition had evolved over the years.
or which they had been delivered to him in the
1 Previously, it had distinguished between literal and non-literal uses of expletives.
A once-off expletive, if used literally, was always considered to run afoul of the
prohibition. However, non-literal uses of expletives were punishable only if
repeated. Thus a once-off, non-literal expletive was not punishable. However, the
Commission decided to change its policy. It doubted the soundness ofthe distinction
v Kentucky River Community Care (200 I) 532 U.S. 706 and Whitman between literal and non-literal expletives; feared that categorical exemption of
.S. 457 and see also Federal Reserve System V Dimension Financial
1) 500 U.s. 173, 184, Brown v Gardner (1994) 513 U.S. 115, Babbitt
once-off non-literal expletives would lead to more widespread use; and noted that
tOregon (1995) 515 U.S. 687, 697-700, Smiley v Citibank (North technological advances made the "bleeping out" ofexplicit language easier. Instead
ojInvestigation and Research) v Southam [1997] 1 S.C.R. 748,
(1999) 525 U.S. 449, 453-455, Macdonell v Quebec (Commission
of the distinction between literal and non-literal expletives, it announced its
lberta Union oJPublic Employees v Lethbridge Community College intention to prefer a context-based inquiry into all uses of expletives to determine
. ations v Metrophones Telecommunications (2007) 550 U.S. 45,
,1505-1508.
whether they fell within the prohibition. 56
tional Trader's Ferry [1999] 2 A.C. 418, Chamberlain v Surrey

'00 with the intention that it should be used to promote the policy
Agt'iculture, Fisheries and Food [1968] A.C. 997, 1030 per Lord
.hsoc oJProJessional Engineers (UKAPE) v Advisory, Conciliation
,R. v Secretary oJStateJor the Environment Ex p. Nottinghamshire
'can Cetacean Society (1986) 478 U.S. 221, George v Devon CC
(1991) 501 U.S. 680, 706, Arkansas v Oklahoma (1992) 503
)535 U.S. 106, 122, Barnhart v Walton (2002) 535 U.S. 212, 219,
For policies cases, seeR. v Secretary oJStateJor Trade and Industry
ABE.R. 609, 620-621, Lopez v Davis (2001) 531 U.S. 230, 242-243,
S. 36, 46-47, Giguere v Chambre des notaires du Quebec [2004]
. [2007] 1 S.C.R. 591, 630-635, Montreal (City) v Montreal Port
case, see Baker v Canada (Minister oJCitizenship and Immigration)
Ie a legitimate expectation.
. (MinisterJor Labour) [2003] I S.C.R. 539, 589 per Binnie J.
[2004] I S.C.R.3.
d1e Chambre des notaires duQuebec, R.R.Q. 1981 c. N-2, r.8 s.2.01.
52 Giguere v Chambre des notaires du Quebec [2004] I S.C.R. 3, 22. See similarly Levis v Fraternite des policiers
de Levis [2007] I S.C.R. 591, 630--{j35. See also Lopez v Davis (2001) 531 U.S. 230, 242-243; Yellow Transportation
v Michigan (2002) 537 U.S. 36, 46-47.
53 See R. (on the application ojL (A Child)) v J School Governors [2003] UKHL 9; [2003] 2 A.c. 633 and R. (on
the application oJO 'Brien) v Independent Assessor [2007] UKHL 10; [2007] 2 A.C. 312, both ofwhich are discussed
below.
54 Federal Communications Commission v Fox Television Stations (2009) 129 S. Ct. 1800.
5518 USC 1464. See Federal Communications Commission v Pacifica Foundation (1978) 438 U.S. 726 .
56 To take a topical recent example, when President Obama signed a momentous healthcare bill into law, the signing
ceremony was covered live on television networks. Vice President Biden's comment to the President, that the signing
ofthe bill was "a big f* g deal" was picked up by television microphones. Under the old standard, the Vice
President's comment was a fleeting, non-literal expletive and would not be punishable. But under the new standard,
broadcasting the comment was potentially punishable, though at the time of writing, no complaint had been filed
with the Commission.

Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
246 Public Law

The court rejected the possibility of a heightened standard for review ofchanges These five indicia of unreasonableness are su
61
in policy. Generally, Scalia 1. held, it would be necessary only for an agency to Others are inconsistency with the traditional gro
"display awareness that it is changing position" without giving a detailed with principles of interpretation65 ; conflict with in
explanation of why it decided to change: I do not claim that I have identified a full, closed
I have simply drawn these from the case law.
"it suffices that the new policy is permissible under the statute, that there are
If an applicant fails to establish the presence
good reasons for it, and that the agency believes it to be better, which the
decision will not be struck down. Decisions in whil
conscious change of course adequately indicates.""
could be established are illustrative. 68 They de
A more detailed justification would only be necessary where a previous policy applicant to make a general claim that a decision.
was based on prior factual findings which had changed, or there had been reliance must be able to point to something that throws t
on the previous policy. Here, the Commission "forthrightly acknowledged that its into doubt. For example, no indicia of unreason
recent actions have broken new ground".58 This may have been enough to dispose Investors Compensation Scheme Ltd, Ex p.
of the case,59 but Scalia J. went on to consider the substance of the new policy.60 significant amount of money in an investment an
Indeed, it seems inevitable that a consideration of a new policy will involve some a statutory scheme which reimbursed principals
consideration ofthe delegated decision-maker's rationale for changing its position: would not be recoverable from their agent. The g
it will in many cases be impossible to explain a particular decision without compensation" would be granted. 70 However, the
explaining the context, of which the previous decision will form a part. Breyer J., was reduced by 10,400. In a private law ac'
although dissenting as to the outcome, adopted an approach which did not differ investment scheme, the 1 0,400 would probably
greatly from Scalia 1.'s approach to the substance of the new policy: of Lords held that the decision-maker's view that
give them a double benefit (in that they had alre
"To explain a change requires more than setting forth reasons why the new
not unreasonable. Even though the money may
policy is a good one. It also requires the agency to answer the question, 'Why
law action, the decision-maker was "entitled to
did you change?' And a rational answer to this question typically requires a
10,400 was not essential to provide fair compe
more complete explanation than would prove satisfactory were change itself
unreasonableness had been established.
not at issue. An (imaginary) administrator explaining why he chose a policy
that requires driving on the right-side, rather than the left-side, of the road
might say, 'Well, one side seemed as good as the other, so I flipped a coin'. Justifying the presence of indicia of u
But even assuming the rationality of that explanation for an initial choice, But establishing the presence of indicia or an in
that explanation is not at all rational if offered to explain why the administrator not automatically justify a reviewing court in qj
changed driving practice, from right-side to left-side, 25 years later."61 The decision-maker may be able to explain how
Thus the new policy does not have to be justified as better than the old policy. It the presence of indicia of unreasonableness. It i
has to justified in its own terms; some explanation of the new policy's relation to the decision-maker must be given an opportunity
the old policy will inevitably be required, but it will not be necessary to explain disproportionality, or inconsistency (and so on)
why the new policy is better than the old policy. A wholly unexplained and notion of, say, an explicable illogicality may
unacknowledged change of policy will be unreasonable, but where a rational
explanation can be made of the new policy, it should be upheld. 62
63 See also Anthony Lester and Jeffrey Jowell, "Beyond Wednesb
Law" [1987] P.L. 368.
64 Dr Q v College afPhysicians and Surgeons ofBritish Columbia
Public Employees v Ontaria (Minister for Labour) [2003] S.C.C. 29;
65 Moreau-Berube v New Brunswick (Judicial Council) [2002] IS.'
Kentucky River Community Care (200 I) 532 U.S. 706, National Ass,
"Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1811 (emphasis original).
(2007) 551 U.S. 644, 668-669.
58 Federal Communications Commission v Fox Television Stations (2009) 129 S. Ct. 1800, 1812.
66 National Corn Growers v Callada (Import Tribunal) [1990]2 S.C.
59 Kennedy J., although joining most of Scalia J.'s opinion, concurred to emphasise that the Commission "demonstrate
ofCitizenship and Immigration) [1999] 2 S.C.R. 817,R. (on theappl:
that the new policy rests upon principles that are rational, neutral, and in accord with the agency's proper understanding o/the Serious Fraud Office [2008] UKHL 60; [2009] 1 A.C. 756.
of its authority" Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1823. It is 67 See, e.g. Barnhart v Walton (2002) 535 U.S. 212, Verizon Communi
possible that Scalia J.'s extended discussion of the substance of the policy was included in response to Kennedy J.s (2002) 535 U.S. 467 (though in neither of these two cases was unce'
concurrence. 68 See also R. v Secretary ofState for Trade and Industrv Ex p. Lon"
60 Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1812-1819. 609, R. (on the application ofMullen) v Secretarv ofState for the Ho;
61 Federal Communications Commission v Fox Television Stations (2009) 129 S. Ct. 1800, 1830--1831 (emphasis 1, National Cable and Telecommunications Association v Brand X In
oriSinal). See also American Hospital Assoc v National Labour Relations Board (1991) 499 U.S. 606. 69 R. v Investors Compensation Scheme Ltd, Ex p. Bowden [1996]
See generally Cass Sunstein, "Is Tobacco a Drug? Administrative Agencies as Common Law Courts" (1998) 70 Financial Services (Compensation of Investors) Rules 1990 (SI 1
47 Duke LJ. 1013, 1055-1068. 71 R. v Investors Compensation Scheme Ltd, Ex p. Bowden [1996]

[2011] PL., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [20 II] P.L., April 20 II Thomson Reuters (Profession:

ity ofa heightened standard for review of changes
Id, it would be necessary only for an agency to
changing position" without giving a detailed
change:
'liey is permissible under the statute, that there are
at the agency believes it to be better, which the
adequately indicates."57
'puld only be necessary where a previous policy
gs which had changed, or there had been reliance
Commission "forthrightly acknowledged that its
wound".l8 This may have been enough to dispose
JOn to consider the substance of the new policy.60
consideration of a new policy will involve some
ision-maker's rationale for changing its position:
sible to explain a particular decision without
'the previous decision will form a part. Breyer J.,
me, adopted an approach which did not differ
to the substance of the new policy:
es more than setting forth reasons why the new
requires the agency to answer the question, 'Why
'onal answer to this question typically requires a
'than would prove satisfactory were change itself
administrator explaining why he chose a policy
.",right-side, rather than the left-side, of the road
,emed as good as the other, so I flipped a coin'.
onality of that explanation for an initial choice,
'. 'onal ifoffered to explain why the administrator
~~ right-side to left-side, 25 years later."61
e to be justified as better than the old policy. It
80me explanation of the new policy's relation to
required, but it will not be necessary to explain
the old policy. A wholly unexplained and
'cy will be unreasonable, but where a rational
ew policy, it should be upheld. 62
ox Television Stations (2009) 129 s. Ct. 1800, 1811 (emphasis original).
ttt Television Stations (2009) 129 S. Ct. 1800, 1812.
):8 opinion, concurred to emphasise that the Commission "demonstrate
rational, neutral, and in accord with the agency's proper understanding
is'ion v Fox Television Stations (2009) 129 S. Ct. 1800, 1823. It is
lhe substance of the policy was included in response to Kennedy J.'s
Fox Television Stations (2009) 129 S. Ct. 1800, 1812-1819.
609, R. (on the application ojMullen) v Secretary oJStateJor the Home Department [2004] UKHL 18; [2005] 1 A.C.
ax Television Stations (2009) 129 S. Ct. 1800, 1830-1831 (emphasis
1, National Cable and Telecommunications Association v Brand X Internet Services (2005) 545 U.S. 967.
National Labaur Relations Board (1991) 499 U.S. 606.
69 R. v Investors Compensation Scheme Ltd, Ex p. Bowden [1996] A.C. 261.
'. Drug? Administrative Agencies as Common Law Courts" (1998)
7" Financial Services (Compensation oflnvestors) Rules 1990 (SI1990/2967) r.2.04.
n Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 247
These five indicia of unreasonableness are sufficient for explanatory purposes.
Others 63 are inconsistency with the traditional grounds ofjudicial review"'; conflict
with principles ofinterpretation65 ; conflict with internationallaw66 ; and uncertainty.67
I do not claim that I have identified a full, closed set of indicia of unreasonableness:
I have simply drawn these from the case law.
If an applicant fails to establish the presence of indicia of unreasonableness, a
decision will not be struck down. Decisions in which no indicia ofunreasonableness
could be established are illustrative. 68 They demonstrate that it will not avail an
applicant to make a general claim that a decision was unreasonable. The applicant
must be able to point to something that throws the reasonableness of the decision
into doubt. For example, no indicia of unreasonableness were established in R. v
Investors Compensation Scheme Ltd, Ex p. Bowden. 69 The applicants lost a
significant amount ofmoney in an investment and applied for compensation under
a statutory scheme which reimbursed principals in situations where their losses
would not be recoverable from their agent. The governing rules provided that "fair
compensation" would be granted. 70 However, the amount of compensation payable
was reduced by 10,400. In a private law action against the operators of the
investment scheme, the 10,400 would probably have been recoverable. The House
of Lords held that the decision-maker's view that reimbursing the applicants would
give them a double benefit (in that they had already had the use of the money) was
not unreasonable. Even though the money may have been recoverable in a private
law action, the decision-maker was "entitled to decide ... that the inclusion of the
10,400 was not essential to provide fair compensation".71 None of the indicia of
unreasonableness had been established.
Justifying the presence of indicia of unreasonableness
But establishing the presence of indicia or an indicium of unreasonableness will
not automatically justifY a reviewing court in quashing the impugned decision.
The decision-maker may be able to explain how the decision is reasonable, despite
the presence of indicia of unreasonableness. It is not difficult to appreciate that
the decision-maker must be given an opportunity to explain. Per se, an illogicality,
disproportionality, or inconsistency (and so on) cannot destroy a decision. The
notion of, say, an explicable illogicality may be somewhat strange, but the
63 See also Anthony Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative
Law" [1987] P. L. 368.
64 Dr Q v College a/Physicians and Surgeons oJBritish Columbia [2003] 1 S.C.R. 226, 237, Canadian Union oj
Public Employees v Ontario (Minister Jar Labour) [2003] S.C.C. 29; [2003] 1 S.C.R. 539.
65 Moreau-Berube v New Brunswick (Judicial Council) [2002] 1 S.C.R. 249, National Labour Relations Board v
Kentucky River Community Care (2001) 532 U.S. 706, National Assoc oJHome Builders v DeJenders oJ Wildlife
(2007) 551 U.S. 644, 668-669.
66 National Corn Growers v Canada (Import Tribunal) [1990] 2 S.C.R. 1324, 1346--1354, Baker v Canada (Minister
oJCitizenship and Immigration) [1999] 2 S.C.R. 817, R. (on the application oJCorner House Research) v Director
oJthe Serious Fraud Office [2008] UKHL 60; [2009] I A.C. 756.
67 See, e.g. Barnhart v Walton (2002) 535 U.S. 212, Verizon Communications v Federal Communications Commission
(2002) 535 U.S. 467 (though in neither of these two cases was uncertainty established).
68 See also R. v Secretary oJStateJor Trade and Industry Ex p. Lonrho Pic [1989] 1 W.L.R. 525; [1989] 2 All E.R.
71 R v Investors Compensation Scheme Ltd, Ex p. Bowden [1996] A.C. 261, 281 per Lord Lloyd of Berwick.
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
248 Public Law Wednesb

underlying idea is that a slight dissonance between the means and the aim need force, the Chief Constable was only prepared
not vitiate an entire decision, as long as the dissonance can be explained by the satisfactory port was, as a result, used by
delegated decision-maker: eventually went out of business. Inter alia the a
the Chief Constable's actions were inconsistent
"In some circumstances a departure from strict logic may be permissible ...
the law.
without it being able to be said that the ensuing decision is unreasonable.'m
In upholding the Chief Constable's decisio
It is only an unjustifiable aberration that will vitiate a decision. This is entirely manpower and financial resources. First, it was
sensible: administrative decision-making is not a perfect science. Similarly, Chief Constable to detail more than one-third of
differential treatment or inconsistency may be justifiable: the applicant organisation. 76 Indeed, there was
"the objectives which had been given priority'
"A level of consistency that would be a virtue in adjudication, governed by
as a consequence of the increased numbers de
law, may be a vice in administrative, inhibiting action intended to further the
the money was simply not available and the v,
public good.""
impractical. Thus, although an inconsistency had
This too is entirely sensible: a foolish consistency is the hobgoblin ofthe mediocre Constable was not doing all he could to combat
mind. because of constraints on manpower and finane
A consideration of the case law demonstrates that indicia of unreasonableness, The applicants in R. (on the application of
although present, will not necessarily be fatal. It is important to stress that there challenged the quantum of compensation gr:
is nothing inherently wrong with a decision that contains indicia of guidelines. Under s.133 of the Criminal Justice
unreasonableness. However, once indicia of unreasonableness are identified, an miscarriages of justice are entitled to compe
onus, which might be described as a burden ofjustification, is then placed on the independent assessor. Three individuals had
decision-maker to demonstrate that the decision is not unreasonable. It may seem initial crime. A different assessor calculated
jarring to think of a decision-maker having to justify themselves, but as Thomas respect to the second pair of claimants. One part
Poole has observed: a deduction to reflect the applicants' previous c .
of 25 per cent and 20 per cent were made, whi!
"what else was 'traditional' judicial review but a mechanism for demanding
per cent deduction made with respect to the
from government (certain kinds of) justification for (certain kinds of)
individual was older and had a much more exte
impugned decisions?"7.
of Eaton-under-Heywood laid out the explanati,
Of course, the burden is not placed on the decision-maker in a literal sense, in the
"There is no question but that the respon
way that a burden of proof might be shifted during a criminal or civil trial: the
applying a far larger percentage deductio
question for the reviewing court will be whether sufficient justification exists in
because he did not think that he could reas
the record. Several English cases demonstrate how indicia of unreasonableness
consistently with his [statutory] duty ... It
may be relied upon to attack a decision, but also how their presence may be
regarded [his predecessor's] 10% reductio
justifiable.
been irrationally low or that he was adopti
A series of protests by animal rights groups resulted in major ferry companies
predecessor] also with regard to the initial
refusing to carry livestock across the Channel from England to France and led to
i.e. the assessments which then fell to b
the litigation at issue in R. v ChiefConstable ofSussex Ex p. International Trader So
claimants' criminal records."'o
Ferry.75 The applicant organisation was formed by a group consisting mainly of
farmers and hauliers who wished to continue transporting livestock. However, Thus, differential treatment had been es
their operations were also plagued by protests which often included such an extent unreasonableness was justified, perhaps surpris'
of illegal activity that the applicant organisation required significant police
protection. Because providing full protection for each sailing would have required 76 R. v ChiefConstable ofsussex Ex p.International Trader's Fe,

the presence of more than one-third of the members of his normally-available
72 Waitakere City Council v Lovelock [1997] 2 N.Z.L.R. 385, 405 per Thomas J. See also Paul Walker, "What's
Wrong with Irrationality?" [1995] P.L. 556, 557-565.
" T. R. S. Allan, "Doctrine and Theory in Administrative Law: the Elusive Quest for the Limits of Jurisdiction"
[2003] P.L. 429, 436.
7. "The RefOlwation of English Administrative Law" (2009) 68 C.L.J. 142. 147.
Environment Ex p. Nottinghamshire CC [I 986] A.C. 240, 246, Nat/,
75 R. v Chief Constable ofsussex Ex p. International Trader's Ferry [1999] 2 A.C. 418.
Life Insurance Co (1995) 513 U.S. 251, 262-263.
Hadley.
77 R. v ChiefConstable ofsussex Ex p. International Trader's Fe,
78 See also Chamberlain v Surrey School District No.3 [2002]4 S.'
79 R. (on the application ofO'Brien) v Independent Assessor [200
80 R (on the application of 0 'Brien) v Independent Assessor [200
81 See also Cartaway Resources, Re [2004] I S.C.R. 672 where B'
complaint about inconsistent treatment, holding that to make indivi
"unduly fetter the ... mandate" of the Ontario Securities CommissiOi

[20 II] P.L., April 20 II Thomson Reuters (Professional) UK Limited and Contributors [20 II] P.L., April 20 II Thomson Reuters (Professi~

t dissonance between the means and the aim need
as long as the dissonance can be explained by the
departure from strict logic may be permissible ...
said that the ensuing decision is unreasonable."n
tion that will vitiate a decision. This is entirely
ion-making is not a perfect science. Similarly,
istency may be justifiable:
at would be a virtue in adjudication, governed by
'nistrative, inhibiting action intended to further the
oolish consistency is the hobgoblin ofthe mediocre
aw demonstrates that indicia of unreasonableness,
ssarily be fatal. It is important to stress that there
with a decision that contains indicia of
ce indicia of unreasonableness are identified, an
as a burden ofjustification, is then placed on the
that the decision is not unreasonable. It may seem
aker having to justify themselves, but as Thomas
, judicial review but a mechanism for demanding
kinds of) justification for (certain kinds of)
ced on the decision-maker in a literal sense, in the
ght be shifted during a criminal or civil trial: the
will be whether sufficient justification exists in
es demonstrate how indicia of unreasonableness
'a decision, but also how their presence may be
. I rights groups resulted in major ferry companies
s the Channel from England to France and led to
'efConstable ofSussex Ex p. International Trader s
tion was formed by a group consisting mainly of
ed to continue transporting livestock. However,
.ed by protests which often included such an extent
plicant organisation required significant police
11 protection for each sailing would have required
-third of the members of his normally-available
7)2 N.Z.L.R. 385, 405 per Thomas J. See also Paul Walker, "What's
557-565.
Administrative Law: the Elusive Quest for the Limits of Jurisdiction"
've Law" (2009) 68 C.L.J. 142, 147.
Environment Ex p. NOllinghamshire CC [1986] AC. 240, 246, Nationsbank a/North Carolina v Variable Annuity
motional Traders Ferry [1999] 2 AC. 418.
Life Insurance Co (1995) 513 U.S. 251, 262-263.
on Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 249
force, the Chief Constable was only prepared to offer limited protection. A less
satisfactory port was, as a result, used by the applicant organisation, which
eventually went out of business. Inter alia the applicant organisation alleged that
the Chief Constable's actions were inconsistent with his statutory duty to uphold
the law.
In upholding the Chief Constable's decision, the House of Lords focused on
manpower and financial resources. First, it was "not realistically possible" for the
Chief Constable to detail more than one-third of his available officers to protecting
the applicant organisation. 76 Indeed, there was evidence that the achievement of
"the objectives which had been given priority in the policing plan"" had suffered
as a consequence of the increased numbers detailed to police the port. Secondly,
the money was simply not available and the various means of raising more were
impractical. Thus, although an inconsistency had been established, in that the Chief
Constable was not doing all he could to combat criminal activity, it was justified
because of constraints on manpower and financial resources. 78
The applicants in R. (on the application of 0 'Brien) v Independent Assessor79
challenged the quantum of compensation granted to them under Home Office
guidelines. Under s.133 of the Criminal Justice Act 1988, as amended, victims of
miscarriages of justice are entitled to compensation, which is calculated by an
independent assessor. Three individuals had been wrongfully convicted of the
initial crime. A different assessor calculated the amount of compensation with
respect to the second pair ofclaimants. One part ofthe assessment involved making
a deduction to reflect the applicants' previous criminal convictions. Here deductions
of 25 per cent and 20 per cent were made, which substantially exceeded the 10
per cent deduction made with respect to the third individual, even though that
individual was older and had a much more extensive criminal record. Lord Brown
of Eaton-under-Heywood laid out the explanation of the inconsistency:
"There is no question but that the respondent knew full well that he was
applying a far larger percentage deduction ... He was doing so, however,
because he did not think that he could reasonably make any lesser deduction
consistently with his [statutory] duty ... It necessarily followed either that he
regarded [his predecessor's] 10% reduction in Mr Robinson's case to have
been irrationally low or that he was adopting a different approach from [his
predecessor] also with regard to the initial non-pecuniary loss assessments,
i.e. the assessments which then fell to be reduced to take account of the
claimants' criminal records."so
Thus, differential treatment had been established, but the indicium of
unreasonableness was justified, perhaps surprisingly.s1
76 R. v Chie(Constable a/Sussex Ex p. International Trader s Ferry [1999] 2 A.C. 418, 431 per Lord Slynn of
Hadley.
" R. v Chie/Constable o/Sussex Ex p. International Trader s Ferry [1999] 2 A.C. 418, 443 per Lord Hotfman.
7S See also Chamberlain v Surrey School District No.3 [2002] 4 S.C.R. 71 O.
79 R. (on the application 0/0 'Brien) v Independent Assessor [2007] UKHL 10; [2007]2 A.C. 312.
so R. (on the application 0/0 'Brien) v Independent Assessor [2007] UKHL 10; [2007] 2 A.C. 312, 351.
81 See also Cartaway Resources, Re [2004] I S.C.R. 672 where Binnie J. somewhat more convincingly rejected a
complaint about inconsistent treatment, holding that to make individual settlements binding on other cases would
"unduly fetter the ... mandate" of the Ontario Securities Commission at 700. See also R. v Secretary a/State/or the
[20 II] PL., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
250 Public Law Wednesb

A case in which the justification for differential treatment was more convincingly Discharging the burden of justificatio
established is R. (on the application ofL (A Child)) v J School Governors." The
Once the presence of indicia or an indicium of
pupil who was the effective applicant had been permanently excluded from school
an explanation must be sought as to why the dec'
by his head teacher, but the decision to permanently exclude him was overturned
unreasonable. In a sense, a burden ofjustification
on appeal to an independent appeal paneL Under s.67 of the School Standards and
In the cases, two approaches have been taken to '
Framework Act 1998, the pupil had to be "reinstated" by the head teacher. Due to
be discharged. The first looks at the cogency of
strike threats by teachers, the pupil did not return to normal classroom activity and
The second assesses whether there was s
was educated under a special regime, initially on his own but later accompanied
decision-maker.
by another student. The regime was designed to keep the pupil out of mainstream
classes and thereby avert any strike action. Whether or not the pupil had been
reinstated was a question of degree: Cogent reasoning
"As to the formal reacceptance by the school ofresponsibility, that acceptance An example of reasoning being insufficient to ju
would certainly be necessary but would not be sufficient. The formal of unreasonableness is AT&T v Iowa Utiliti
reacceptance would have to be accompanied by treatment of the pupil that interpretation of the Telecommunications Act 1
was consistent with his or her status as a pupil of the schooL Otherwise the aimed to open up competition in local telephone '
reacceptance would be meaningless ... The 'reinstatement' of an expelled companies made various complaints about ho
pupil as a member of an organic body such a school may require the Commission had interpreted and implemented t:
relationship of the pupil with each of [the school's] constituent parts and the regulations, various provisions made it possible fo
expected or likely interaction between them to be taken into account.,,83 from incumbents. Inter alia, the statute required
with access to network elements where access
87
A number of factors, then, were relevant in determining whether a reinstatement "would impair the ability" to provide services.
had occurred, or, whether the decision of the head teacher was "unreasonable and effectively a blanket rule requiring access.
disproportionate" or not: "the need to 'reinstate' L required the head teacher to Scalia 1. held that the rule was unreasonable:
balance a number of different factors, pulling in different directions"."4 On the one
hand, the school resumed responsibility for the pupil, who was permitted to study, "the Act requires the FCC to apply some Ii
was supervised, received tuition and for whom travel arrangements to and from to the goals of the Act, which it has simply
school were made. On the other hand, there was no social contact with other It had effectively allowed the entrants to decid
students. However, given the disruption that might have been caused to the other would impair the provision of services and thus e
students had the special regime not been put in place; the threat of strike action, the entrant could provide the network element
with examinations imminent; and the need to keep the pupil from the victim of incumbent. But the real difficulty in the Co
the alleged assault which led to the permanent exclusion in the first place, the head premises were flawed:
teacher's decision was not unreasonable or disproportionate."5 Although the
discussion was not couched in these terms, it is clear that the allegedly unequal "In a world of perfect competition, in whic
treatment was at the root of the applicant's complaint. However, any inequity in service at marginal cost, the Commission's
treatment was amply justified by the desire to avoid industrial strife and its (or decreased quality) with 'necessity' and 'i
deleterious effects on the education of the other students. but it has not established the existence ols
Thus the departure from statutory language was
and the attempted justification contained a log
90
lacked sufficient cogency to be acceptable.

82 R. (on the application ofL (A Child)) vJ School Governors [2003] UKHL 9; [2003] 2 A.C. 633.
83 R. (on the application ofL (A Child)) v J School Governors [2003] UKHL 9; [2003] 2 A.C. 633, 655--{j56 per
Lord Scott 0 f Foscote. &6 AT&Tv Iowa Utilities Board (I 999) 525 U.S. 366.
&4 R. (on the application ofL (A Child)) v J School Governors [2003] UKHL 9; [2003]2 A.C. 633, 657 per Lord S7 Telecommunications Act 199647 USC 251(d)(2).
Scott 0 f Foscote. &S AT&T v Iowa Utilities Board (1999) 525 U.S. 366 (1999) 525 Uo'

R5 Although a Wednesbury challenge was not per se before the House of Lords, the rationality of the decision of &9 AT&T v Iowa Utilities Board (1999) 525 U.S. 366 (1999) 525 U.:
the head teacher was challenged. For his part, Lord Walker of Gestingthorpe assessed the rationality of the special 90 Where a delegated decision-maker has to pursue multiple statuto'
regime and concluded that it "was not so extreme or so disproportionate as to go beyond the limits of their managerial a decision which contains an indicium of unreasonableness may be
and pastoral discretion" R. (on the application ofL (A Child)) vJ School Governors [2003] UKHL 9; [2003] 2 A.C. Relations Board) [1996] I S.C.R. 369, Committee for the Equal Trea.
633, 661. Ontario (Securities Commission) [2001] 2 S.C.R. 132.
I
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (professio1
II

.on for differential treatment was more convincingly
ation ofL (A Child)) v J School Governors. 82 The
licant had been permanently excluded from school
ision to permanently exclude him was overturned
eal panel. Under s.67 of the School Standards and
had to be "reinstated" by the head teacher. Due to
pil did not return to normal classroom activity and
gime, initially on his own but later accompanied
was designed to keep the pupil out of mainstream
'strike action. Whether or not the pupil had been
ee:
ce by the school ofresponsibility, that acceptance
ssary but would not be sufficient. The formal
to be accompanied by treatment of the pupil that
her status as a pupil of the school. Otherwise the
eaningless ... The 'reinstatement' of an expelled
organic body such a school may require the
'th each of [the school's] constituent parts and the
'on between them to be taken into account.,,83
relevant in determining whether a reinstatement
cision of the head teacher was "unreasonable and
eed to 'reinstate' L required the head teacher to
ctors, pulling in different directions".84 On the one
sibility for the pupil, who was permitted to study,
and for whom travel arrangements to and from
er hand, there was no social contact with other
'sruption that might have been caused to the other
not been put in place; the threat of strike action,
d the need to keep the pupil from the victim of
the permanent exclusion in the first place, the head
easonable or disproportionate. 85 Although the
'these terms, it is clear that the allegedly unequal
. applicant's complaint. However, any inequity in
. by the desire to avoid industrial strife and its
tion of the other students.
School Governors [2003] UKHL 9; [2003] 2 A,C. 633,
School Governors [2003] UKHL 9; [2003] 2 A.C. 633. 655--656 per
School Governors [2003] UKHL 9; [2003] 2 A.C. 633,657 per Lord
per se before the House of Lords, the rationality of the decision of
Lord Walker of Gestingthorpe assessed the rationality of the special
e or so disproportionate as to go beyond the limits of their managerial
ofL (A Chi/d)) vJ School Governors [2003] UKHL 9; [2003] 2 A.C.
son Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 251
Discharging the burden of justification
Once the presence of indicia or an indicium of unreasonableness is established,
an explanation must be sought as to why the decision should not be deemed to be
unreasonable. In a sense, a burden ofjustification is placed on the decision-maker.
In the cases, two approaches have been taken to establishing how the burden is to
be discharged. The first looks at the cogency of the decision-maker's reasoning.
The second assesses whether there was sufficient evidence before the
decision-maker.
Cogent reasoning
An example of reasoning being insufficient to justify the presence of an indicium
of unreasonableness is AT&T v Iowa Utilities Board.'6 At issue was the
interpretation of the Telecommunications Act 1996, a deregulatory statute that
aimed to open up competition in local telephone markets. Incumbent local telephone
companies made various complaints about how the Federal Communications
Commission had interpreted and implemented the Act. Under the Commission's
regulations, various provisions made it possible for new entrants to lease equipment
from incumbents. Inter alia, the statute required incumbents to provide entrants
with access to network elements where access was "necessary" and its absence
"would impair the ability" to provide services.'7 The Commission issued what was
effectively a blanket rule requiring access.
Scalia 1. held that the rule was unreasonable:
"the Act requires the FCC to apply some limiting standard, rationally related
to the goals of the Act, which it has simply failed to do.,,88
It had effectively allowed the entrants to decide what was necessary and what
would impair the provision of services and thus excluded consideration of whether
the entrant could provide the network element itself or lease it from another
incumbent. But the real difficulty in the Commission's reasoning was that its
premises were flawed:
"In a world of perfect competition, in which all carriers are providing their
service at marginal cost, the Commission's total equating of increased cost
(or decreased quality) with 'necessity' and 'impairment' might be reasonable;
but it has not established the existence ofsuch an ideal world.,,89
Thus the departure from statutory language was an indicium of unreasonableness
and the attempted justification contained a logical flaw. Thus the justification
lacked sufficient cogency to be acceptable. 90
86 o4T&Tv Iowa Utilities Board (1999) 525 U.s. 366.
87 Telecommunications Act 199647 USC 251(d)(2).
88 o4T&Tv Iowa Utilities Board (\999) 525 U.S, 366 (1999) 525 U.S. 366, 388 (emphasis original).
89 o4T&Tv Iowa Utilities Boord (\999) 525 U.S. 366 (\999) 525 U.S, 366, 390 (emphasis added).
90 Where a delegated decision-maker has to pursue multiple statutory purposes. policies, duties or values, justifying
a decision which contains an indicium of unreasonableness may be easier. See Roval Oak Mines v Conada (Labour
Relations Board) [1996] I S.C.R. 369, Committee for the Equal Treatment ofAsbestos Minority Shareholders v
OntarIO (Securities Commission) [2001] 2 S,C.R, 132,
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
252 Public Law Wednesbu

Sufficient evidence Both approaches

An excellent example of an "evidence" case is presented by Bowen v American Both approaches can be perceived in the decisi
Hospital Assoc. 9l Section 504 of the Rehabilitation Act 1973 provided that Champion v Chief Constable of the Gwent Co
handicapped individuals should not: constable was elected to serve as a governor of a 1
appointed to the appointments sub-committee, w
"solely by reason of [their] handicap, be excluded from the participation in,
interviewing of candidates for teaching po
be denied the benefits of, or be subjected to discrimination under any
recommendations on appointments for ratification'
[federally-funded] programme."92
applied to the respondent for leave to attend meet'
Regulations promulgated under this section required hospitals, inter alia, to post on duty, but leave was refused on the ground that i!
informational notices specifying that handicapped infants should not be excluded
"activity likely to interfere with the impa .'
from treatment on the basis of their disability and to put in place procedures to
duties or likely to give rise to the impre
"prevent instances of unlawful medical neglect of handicapped infants".9]
public that it may so interfere ...,,99
Stevens J. quashed the regulations because of the absence of evidence to support
them. The Health Secretary's first reason was that refusal to reason treatment solely for two reasons.
by reason ofhandicap constituted discrimination. His second justification was that The first reason arose from the fact that a polie,
failure by hospitals to report suspected cases of medical neglect violated s.504. duty, learn sensitive information about a candidate
But in the regulations the Secretary had noted that the requirement of parental the respondent had suggested, a disappointed appl
consent to treatment could not be overridden: the police officer had used the sensitive informatio
public allegations would damage the force's re
"Now that the Secretary has acknowledged that a hospital has no statutory
Griffiths was unimpressed because:
treatment obligation in the absence of parental consent, it has become clear
that the [regulations] are not needed to prevent hospitals from denying "[a]n applicant for a teaching post must ... d
treatment to handicapped infants [because] the administrative record contains " . it is at least most unlikely that the local poH
no evidence that hospitals have ever refused treatment authorised either by information that reflects badly on an applic
the infant's parents or by a court order.,,9.
In terms of the indicia ofunreasonableness, illogic
Moreover, the parental interest in bringing attention to refusals of treatment would relevant. The reasoning adduced to justify the
adequately further the purpose of s.504. Critically, the supposed need for the unreasonableness was insufficiently cogent:
regulations was based on cases where parental consent had been refused: "they
"Suspicion of theft or, even worse, child ab
provide no support for [the Secretary's] claim that federal regulation is needed in
but is it likely that a person under such suspie
order to forestall comparable cases in the future".95 Equally, the other cases relied
ifhe fails to get it, that he will then spread abrl
on to support the procedural requirement imposed on hospitals failed "to disclose
for his failure to get the appointment, and f
any discrimination".96 In sum, "deference cannot fill the lack of an evidentiary
impression among the public that the po
foundation ... ,,97
sub-committee cannot discharge his duties i
event likely by adding one unlikely event to a,
Secondly, in the Chief Constable's view, a police
in public controversy as a result of a decisi
sub-committee. However, the respondent could n
the appointment of a teacher causing public con
jurisdiction:
91 Bowen v American Hospital Assoc (1986) 476 U.S. 610.
92 Rehabilitation Act 197329 USC 794.
93 45 CFR 84.55 (1985 J.
9' Bowen v American Hospital Assoc (1986) 476 U.S. 610. 631 (emphasis added).
95 Bowen v American Hospital Assoc (1986) 476 U.S. 610, 632.
96 Bowen v American Hospital Assoc (1986) 476 U.S. 610, 635.
97 Bowen v American Hospital Assoc (1986) 476 U.S. 610, 643. See also United States v Riverside Bayview Homes 98 Champion v Chie/Constable o/Gwent [1990J 1 WL.R. 1; [1990]
(1985) 474 U.S. 121, Bugdaycay v Secretarv ofS/ate/or the Home Department [1987] A.C. 514, R. v Chie/Constable 99 Police Regulations 1979 (SI 1979/1470) Sch.2 para. I.
ofSussex Ex p.lnternational Trader s Ferry [1999] 2 AC. 418, Mount Sinai Hospital Center v Quebec (Minister 0/ 100 Champion v Chie/Constable o/Gwenl [1990]1 WL.R. 1; [1990]
Health and Social Services) [2001]2 S.C.R. 281 (concurring reasons ofBinnie J.),Alaska Department o/Environmental LOI Champion v ChiefConstable ofGwent [1990]1 WL.R. 1; [1990]
102 . .
Conservation v Environmental Protection Agency (2004) 540 U.S. 461. Champion v ChiefCOilS table o/Gwelll [1990] 1 WL.R. 1; [1990]

[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professional'

vidence" case is presented by Bowen v American
, of the Rehabilitation Act 1973 provided that
d not:
] handicap, be excluded from the participation in,
f, or be subjected to discrimination under any
, e.,,'n
r this section required hospitals, inter alia, to post
g that handicapped infants should not be excluded
their disability and to put in place procedures to
'medical neglect of handicapped infants".93
tions because ofthe absence ofevidence to support
,'t reason was that refusal to reason treatment solely
discrimination. His second justification was that
spected cases of medical neglect violated s.504.
had noted that the requirement of parental
overridden:
acknowledged that a hospital has no statutory
absence of parental consent, it has become clear
not needed to prevent hospitals from denying
ts [because] the administrative record contains
have ever refused treatment authorised either by
, court order.,,94
in bringing attention to refusals of treatment would
relevant. The reasoning adduced to justifY the presence of these indicia of
of s.504. Critically, the supposed need for the
unreasonableness was insufficiently cogent:
,'. where parental consent had been refused: "they
, tary's] claim that federal regulation is needed in
, 'es in the future".9s Equally, the other cases relied
uirement imposed on hospitals failed "to disclose
"~~deference cannot fill the lack of an evidentiary
) 476 u.s. 610, 631 (emphasis added).
) 476 U.S. 610, 632.
) 476 U.S. 610, 635.
)476 U.S. 610, 643. See also United States v Riverside Bayview Homes
a/State/or the Home Department [1987] A.C. 514, R. v ChiejConstable
[1999]2 A.C. 418, Mount Sinai Hospital Center v Quebec (Minister oj
1 (concurring reasons ofBinnie J.), Alaska Department oJEnvironmental
ency (2004) 540 U.S. 461.
n Reuters (professional) UK Limited and Contributors
Wednesbury's Reason and Structure 253
Both approaches
Both approaches can be perceived in the decision of the House of Lords in
Champion v Chief Constable of the Gwent Constabulary.98 A serving police
constable was elected to serve as a governor of a local school and was subsequently
appointed to the appointments sub-committee, which had responsibility for the
interviewing of candidates for teaching positions and the making of
recommendations on appointments for ratification by the board of governors. He
applied to the respondent for leave to attend meetings ofthe sub-committee while
on duty, but leave was refused on the ground that it was an:
"activity likely to interfere with the impartial discharge of [the applicant's]
duties or likely to give rise to the impression amongst members of the
public that it may so interfere ... "99
for two reasons.
The first reason arose from the fact that a police officer may, in the course of
duty, learn sensitive information about a candidate for a particular position. Thus,
the respondent had suggested, a disappointed applicant might allege publicly that
the police officer had used the sensitive information in coming to a decision, which
public allegations would damage the force's reputation for impartiality. Lord
Griffiths was unimpressed because:
"[a]n applicant for a teaching post must ... declare any criminal convictions
... it is at least most unlikely that the local police will have further confidential
information that reflects badly on an applicant."loo
In terms of the indicia of unreasonableness, illogicality and disproportionality were
"Suspicion of theft or, even worse, child abuse were suggested in argument,
but is it likely that a person under such suspicion would apply for a post and,
ifhe fails to get it, that he will then spread abroad this suspicion as the reason
for his failure to get the appointment, and that this, in tum, will lead to an
impression among the public that the policeman on the appointments
sub-committee cannot discharge his duties impartially? You cannot make an
event likeZy by adding one unlikely event to another unlikely event. ,,101
Secondly, in the Chief Constable's view, a police officer might become embroiled
in public controversy as a result of a decision taken by an appointments
sub-committee. However, the respondent could not point to a "single instance of
the appointment of a teacher causing public controversy,,102 in the school or his
jurisdiction:
:: Champion v Chiej'Constabie oj'Gwent [1990] 1 WL.R. I; [1990] I All E.R. 116.
Police Regulations 1979 (SI 1979/1470) Sch.2 para. I.
100 Champion v ChieJConstableoJGwent [1990] I WL.R. I; [1990]1 AllE.R. 116, 119.
101 Champion v ChieJConstable oJGwent [1990] I WL.R. 1; [1990]1 All E.R. 116, 119 (emphasis added).
102 Champion v ChieJConstable oJGwent[1990] I WL.R. 1; [1990]1 All E.R. 116, 119.
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254 Public Law WednesbUl

"[T]here must be material on which the Chief Constable can reasonably Admittedly this requirement of justification doe
apprehend such public controversy and, in the circumstances of this case, T burden on the decision-maker in the same way
can find no material whatever to support the view that the appointment of a anxious scrutinio8 standards do, but as soon as a
teacher is likely to lead to public controversy. "IOJ is identified, its presence must be justified by the
absence of any indicia of unreasonableness woul
The absence of sufficient evidence to justify the illogicality and disproportionality
effect too, in that if nothing could be demonstrate,
vitiated the decision. Thus, both approaches can be relevant, sometimes in the
the decision must be justifiable. Murray Hunt's per
same case. The important point is that unreasonableness, when understood in this
of deference ... do not give any role to the quali
sense, does not require a judge to pronounce from on high a subjective view of
justify the decision" should accordingly, insofar
whether or not a decision is unreasonable. The considerations leading to a finding
context, be assuaged. 109 Because the requirement
of unreasonableness, and the reasons for rejecting the decision-maker's
idea of simply explaining decisions and "implie
explanations, will be brought into the open, where they can be parsed by the wider
decision must be 'good' reasons, and this, in tu
legal community.
determining what counts as a 'good' reason",110
considered "the antithesis of the rule ofreason".11
Implications Thirdly, unreasonableness, properly considered
The first and, in the light of the barrage of criticism which Wednesbury has been Lester and lowell termed "substantive principle
subjected to over the last several decades, most surprising implication is that indicia of unreasonableness. Indicia are norms w
unreasonableness has an intemallogic and structure. It is not necessarily the case from some source. They are immanent in the ca
that Wednesbury needs to be jettisoned in favour of the more "structured" and judges are drawing from a deeper normative we]
"reasoned" proportionality standard. lo4 It seems clear that a reviewing court's "judgment [that] will draw on a range of constit
determination ofwhether or not a decision is unreasonable proceeds in the following are prompted by the rule of law, particular c
manner, at least as a matter of theory. First, the applicant argues that one of the contentiously, by considerations of good adminisi
indicia of unreasonableness is present. The applicant will have to demonstrate the "If the courts understand their role as enSl
presence of an indicium of unreasonableness prima facie. It may be immediately 'reasonable' then what is understood as,
evident, or it may have to be developed at some length. On occasion, the applicant prescriptions about good public administran
will fail to establish that any indicium of unreasonableness is present. On other
occasions, indicia of unreasonableness will be established to be present. The Fourthly, unreasonableness is not static. If undj
presence of indicia of unreasonableness will, if established, have to be justified suggested, unreasonableness is a dynamic cd,
by the decision-maker. What amounts to a burden ofjustification can be discharged .
unreasonableness is not closed. According to chan4
by reference to cogent reasoning or sufficient evidence on the part of the to delegated decision-makers, indicia may be a1
decision-maker. identified above: 1
Secondly, a "culture of justification" is in fact hard-wired into
unreasonableness,05:
"The basic principle is that all decisions backed by the public force that goes
107 JefIrey Jowell. "Beyond the Rule of Law: Towards Constituti
with invoking the authority of 'the people' are legitimate only if they can be 108 See Tom Hickman, "The Reasonableness Principle: Reassessing
shown to be justifiable.",o6 166, 185-188. See, e.g. R. v Secretary olStatefor the Home Depar,
critique, see the dissenting judgment of Hardiman J. of the Irish Sup:
Equality and Law R~lorm [2010] I.E. S.C. 3.
109 Murray Hunt. "Against Bifurcation" in David Dyzenhaus, M
Common Lawyer: Essays in Honour ol Michael Taggart (Oxford: H
110 David Dyzenhaus. Murray Hunt and Michael Taggart, "The P .
Intemationalisation as Constitutionalisation" (2001) 1 Orford Univ.
111 Michael Taggart, "Reinventing Administrative Law" in Nichol
in a Multi-Layered Constitution (Oxford; Hart. 2003) p.324.
112 Anthony Lester and JefTrey Jowell, "Beyond Wednesbury; Sui
[1987] P.L. 368. They identified proportionality, legal certainty, co:
IUJ Champion v ChielConstabie olGwent [1990] I W.L.R. 1; [1990] I All E.R. 116, 120 (emphasis added). substantive principles. There is significant overlap between their su,
104 Paul Craig, Administrative Law, 6th edn (London: Sweet and Maxwell, 2008) p.637. unreasonableness, but 1 reject reliance on limdamental human rights
105 See Sian Elias, "Administrative Law for 'Living People'" (2009) 68 C.L.J. 47, 62--{)6; Etienne Mureinik, See also Philip Bryden, "Understanding the Standard of Review in A,
"Reconsidering Review; Participation and Accountability" [1993] Acta JUrldica 35. cf. Lord Steyn, "The New Legal Brunswjck "ow Journal 75, 92-99.
Landscape" [2000] E.H.R.L.R. 549. 113 T. R. S. Allan. "Constitutional Dialogue and the Justification 0
106 David Dyzenhaus, "Law as Justitkation: Etienne Mureinik's Conception of Legal Culture" (1998) 14 South 114 Elizabeth Fisher, Risk Regulation and Administrative Constitu,
Alrican Journal olHuman Rights, 11,35. 2007) p.92.

[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributurs [2011] P.L., April 2011 Thomson Reuters (Professi'

'al on which the Chief Constable can reasonably
ontroversy and, in the circumstances of this case, I
tever to support the view that the appointment of a
public controversy."I03
nce to justify the illogicality and disproportionality
th approaches can be relevant, sometimes in the
is that unreasonableness, when understood in this
e to pronounce from on high a subjective view of
easonable. The considerations leading to a finding
e reasons for rejecting the decision-maker's
to the open, where they can be parsed by the wider
e barrage of criticism which Wednesbury has been
.eral decades, most surprising implication is that
,. llogic and structure. It is not necessarily the case
~ettisoned in favour of the more "structured" and
dard. 104 It seems clear that a reviewing court's
a decision is unreasonable proceeds in the following
:theory. First, the applicant argues that one of the
ent. The applicant will have to demonstrate the
onableness prima facie. It may be immediately
Yeloped at some length. On occasion, the applicant
prescriptions about good public administration."1]4
uidicium of unreasonableness is present. On other
I ~- bleness will be established to be present. The
Fourthly, unreasonableness is not static. If understood in the way that I have
nableness will, if established, have to be justified
suggested, unreasonableness is a dynamic concept. The set of indicia of
~ ounts to a burden ofjustification can be discharged
unreasonableness is not closed. According to changes in judicial and social attitudes
, 'ng or sufficient evidence on the part of the
to delegated decision-makers, indicia may be added or subtracted from the set
is In fact hard-wired into
1 all decisions backed by the public force that goes
. of 'the people' are legitimate only if they can be
[1990]1 W.L.R. I; [1990] I All E.R. 116, 120 (emphasis added).
(London: Sweet and Maxwell, 2008) p.63 7.
'Living People'" (2009) 68 C.L.J. 47, 62--{j6; Etienne Mureinik,
untability" [1993] Acta Juridica 35. cf. Lord Steyn, "The New Legal
Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 255
Admittedly this requirement of justification does not go so far as to place the
burden on the decision-maker in the same way that the proportionality lo7 and
anxious scrutiny lo8 standards do, but as soon as an indicium of unreasonableness
is identified, its presence must be justified by the decision-maker. Moreover, the
absence of any indicia of unreasonableness would presumably have justificatory
effect too, in that if nothing could be demonstrated to be wrong with the decision,
the decision must be justifiable. Murray Hunt's pertinent fear that "[some] accounts
of deference ... do not give any role to the quality of the reasons relied upon to
justify the decision" should accordingly, insofar as it is relevant in the present
context, be assuaged. 109 Because the requirement of justification goes beyond the
idea of simply explaining decisions and "implies that the reasons supporting a
decision must be 'good' reasons, and this, in tum, requires norms or rules for
determining what counts as a 'good' reason", 1I OWednesbury need no longer be
considered "the antithesis of the rule of reason". 111
Thirdly, unreasonableness, properly considered, incorporates a number of what
Lester and Jowell termed "substantive principles"112; I have described these as
indicia of unreasonableness. Indicia are norms which must themselves be drawn
from some source. They are immanent in the case-law but the suspicion is that
judges are drawing from a deeper normative well: they seem to be exercising a
"judgment [that] will draw on a range of constitutional values".1l3 Perhaps they
are prompted by the rule of law, particular conceptions of justice, or, less
contentiously, by considerations of good administration:
"If the courts understand their role as ensuring that decisions are legally
'reasonable' then what is understood as reasonable will depend upon
identified above:
107 Jeffrey Jowell, "Beyond the Rule of Law: Towards Constitutional Judicial Review" [2000] P.L. 671, 680.
108 See Tom Hickman, "The Reasonableness Principle: Reassessing its Place in the Public Sphere" (2004) 63 c.L.J.
166, 185-188. See, e.g. R. v Secretary oJSlateJor the Home Department Ex p. Brind [1991] I A.C. 696. For a strong
critique, see the dissenting judgment of Hardiman J. of the Irish Supreme Court in Meadows v Minister Jor Justice
Equality and Law ReJorm [2010] I.E.S.C. 3.
109 Murray Hunt, "Against Bifurcation" in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds) A Simple
Common Lawyer: Essays in Honour oj Michael Taggart (Oxford: Hart, 2009) p.114.
110 David Dyzenhaus, Murray Hunt and Michael Taggart, "The Principle of Legality in Administrative Law:
Internationalisation as Constitutionalisation" (200 I) I OxJord University Commonwealth Law Journal 5, 29.
111 Michael Taggart, "Reinventing Administrative Law" in Nicholas Bamforth and Peter Leyland (eds) Public Law
in a Multi-Layered Constitution (Oxford: Hart, 2003) p.324.
112 Anthony Lester and Jeft'rey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law"
[1987] P.L. 368. They identified proportionality, legal certainty, consistency and fundamental human rights as the
substantive principles. There is significant overlap between their substantive principles and my indicia of
unreasonableness, but I reject reliance on fundamental human rights as an indicium of unreasonableness. See below.
See also Philip Bryden, "Understanding the Standard ofReview in Administrative Law" (2005) 54 University oJNew
Bmnswick Law Journa175, 92-99.
113 T. R. S. Allan, "Constitutional Dialogue and the Justification of Judicial Review" (2003) 23 OJ.L.S. 563, 570.
114 Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (Oxford: Oxford University Press,
2007) p.92.
[20 II] P.L., April 20 II Thomson Reuters (Professional) UK Limited and Contributors
 256 Public Law Wednes

"New principles emerge by a process of accretion reflecting a constitution's It is appropriate to note at this juncture that
changing imperatives and shifting settlements. These are based upon altering separate from the factors that determine the al
notions of the proper scope of governmental power as well as upon other example, although the complex nature of the
fundamental social values which become endorsed over time.,,115 expertise may be relevant in determining the
do not touch on the unreasonableness of the d,
Felix Frankfurter's advice, rendered in the context of statutory interpretation
more or less unreasonable because it was ren
generally, seems apposite:
or because it required the exercise ofjudgmenl
"In those realms where judges directly formulate law because the chosen An example should suffice to make the poi
3
lawmakers have not acted, judges have the duty of adaptation and adjustment Home Department Ex p. Launder (No.2r the
of old principles to new conditions.,,116 decision to extradite him to face trial on politi
Whether the rule oflaw, principles of good administration,1I7 or some conception Hong Kong. Although the relevant decision
before the handing-over of Hong Kong to the
of justice supplies the indicia is not especially important. What matters is that
unreasonableness is sufficiently flexible and dynamic to be responsive to changes that by the time of trial, Hong Kong would
in context. Accordingly, the applicant feared that he mi
Fifthly, if unreasonableness requires variable standards of review,1I8 such as basis challenged the decision to extradite.
sub- and super-Wednesbury, variability would best be accommodated by varying Lord Hope of Craighead held that the Min
the burden of justification. The sub-Wednesbury standard requires the "most "framework oflaw" put in place to govern the:
anxious scrutiny" to be applied to impugned decisions. 119 What anxious scrutiny minds" of the officials in charge of the syste
actually requires is that the burden of justification on the decision-maker be the decision required "the exercise of judgmel
120 expertise of the court".125 However, the presen
increased. But the super- Wednesbury standard dictates that certain grounds of
review will not be available. Hence the statement of Lord Bridge in the the court to apply "anxious scrutiny". 126 The
Hammersmith case that a Secretary of State's decision pertaining to the allocation two legitimate points of view could be held.
of central government funding to local authorities could be reviewed, but only for previous actions, "incapable of giving effect to
error of law, bad faith, improper purposes or manifest absurdity and not on the Law must depend"; the other that China had:
ground of Wednesbury unreasonableness. III At one end of the spectrum, then, the "good reason to make every effort in [Ho
focus is on the burden ofjustification; at the other end, the focus is on the available criminal justice system, in recognition
grounds of review. The distinction simply makes no sense, as an analytical matter. practice the socialist system and policies
A focus, however, on the burden ofjustification might permit variable standards
of review to be coherently developed. 122 A failure of the rule oflaw in this or other cases
for China, giving the Chinese an "obvious interl
received a fair trial. Thus a reasonable Mini:
115 Jeffrey Jowell, "Of Vires and Vacuums: the Constitutional Context of Judicial Review" [1999J P.L. 448, chances of the applicant receiving a fair trial.
455-456. Internal citation omitted. Analytically, the interests of the applicant
Ilfi Felix Frankfurter, "Some Reflections on the Reading of Statutes" (1947) 47 Columbia Law Review 527, 535.
117 The protagonists in the debate about the constitutional foundations ofjudicial review do agree that courts, in decision were factors to be taken into account in
fonnulating judicial review doctrine, have been engaged in the development of principles of good administration. If not in determining whether the decision was re,
Wednesbury's internal reason and structure is appreciated, another forum for development is provided, because courts
would be able to continue to hone the general grounds ofjudicial review.
demonstrated that a fundamental right was at
118 For arguments in favour of variable standards of review see Frank Iacobucci, "Articulating a Rational Standard indicia of unreasonableness. Anxious scrutiny
of Review Doctrine: a Tribute to John Willis" (2002) 27 Queens' LJ. 859, 872~873; Sir John Laws, "Wednesbury" him. Similarly, the Minister's expertise in re
in Christopher Forsyth and Ivan Hare (eds) The Golden Metwand and Crooked Cord: Essavs in Honour a/William
Wade (Oxford: Hart. 1998) p.185. question counselled a deferential approach on
119 As a metaphor, or descriptive label, the tenn is unfortunate. It suggests that judicial scrutiny may increase or
it did not affect the unreasonableness of the de
decrease, but a moment's reflection should suffice to make clear that the notion is problematic. A conscientious judge
will properly scrutinise the record and the arguments of the parties in all cases that come before her. To read a brief
only once, in an unreasonableness case, but twice, in an anxious scrutiny case, would plainly be ludicrous and probably
a breach ofjudicial ethics and standards offair procedure. cf. Mark Aronson, "Process, Quality, and Variable Standards:
Responding to an Agent Provocateur" in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds) A Simple Common
Lawyer: Essays in Honour 0/ Michael Taggart (Oxford: Hart, 2009) p.29: "So long as the requisite standard of 123 R. v Secretary a/State/or the Home Department Ex p. Laund.
unreasonableness equates to lunacy, it will usually be obvious; any less-demanding standard requires more work ... " 961.
"0 R. v Ministryo/De/ence Ex p. Smith [1996] Q.B. 517, 554 per Sir Thomas Bingham M.R. (adopting a submission 124 R. v Secretary 0/ State for the Home Department Ex p. LGUn
on behalf of the applicant by David Pannick QC).
125 R. v Secretary a/State/or the Home Department Ex p. LGUn,
121 R. v Secretary a/State/or the Environment Ex p. Hammersmith and Fulham LBC [1991] 1 A.C. 521.
126 Bugdaycay v Secretary a/State/or the Home Department [19:
122 For a consideration of the possible difficulties of such an approach, see the concurring reasons of LeBel J. in
:~: R. v Secretary a/State/or the Home Department Ex p. LGUn,
Toronto (City) v CUPE [2003] 3 S.C.R. 77.
- R. v Secretary a/State/or the Home Department Ex p. Laund.

[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professi

by a process of accretion reflecting a constitution's
shifting settlements. These are based upon altering
pe of governmental power as well as upon other
which become endorsed over time.",15
ndered in the context of statutory interpretation
judges directly formulate law because the chosen
judges have the duty of adaptation and adjustment
!' nditions."II.
.iples of good administration,1I7 or some conception
Hong Kong. Although the relevant decision and the challenge to it were made
~. is not especially important. What matters is that
before the handing-over of Hong Kong to the Chinese Government, it was clear
y flexible and dynamic to be responsive to changes
that by the time of trial, Hong Kong would no longer be under British control.
requires variable standards of review/ 18 such as
.ariability would best be accommodated by varying
e sub-Wednesbury standard requires the "most
to impugned decisions. 119 What anxious scrutiny
burden of justification on the decision-maker be
'dnesbury standard dictates that certain grounds of
~. Hence the statement of Lord Bridge in the
tary of State's decision pertaining to the allocation
to local authorities could be reviewed, but only for
purposes or manifest absurdity and not on the
bleness. 121 At one end of the spectrum, then, the
cation; at the other end, the focus is on the available
'on simply makes no sense, as an analytical matter.
en ofjustification might permit variable standards
:eloped.122
:the Constitutional Context of Judicial Review" [1999] P.L. 448,
on the Reading of Statutes" (1947) 47 Columbza Law Review 527, 535.
decision were factors to be taken into account in determining the standard ofreview,
constitutional foundations ofjudicial review do agree that courts, in
engaged in the development of principles of good administration. If
appreciated, another forum for development is provided, because courts
grounds ofjudicial review.
ofreview see Frank Iacobucci, "Articulating aRational Standard
is" (2002) 27 Queens' LJ. 859, 872-873; Sir John Laws, "Wednesbury"
him. Similarly, the Minister's expertise in reaching a decision on a complex
~ The Golden Metwand and Crooked Cord: Essays in Honour of William
e term is unfortunate. It suggests that judicial scrutiny may increase or
IUflice to make clear that the notion is problematic. Aconscientious judge
llIgUIIlenls of the parties in all cases that come before her. To read abrief
twice, in an anxious scrutiny case, would plainly be ludicrous and probably
procedure. cf. Mark Aronson, "Process, Quality, and Variable Standards:
'd Dyzenhaus, Murray Hunt and Grant Huscroft (eds) A Simple Common
art (Oxford: Hart, 2(09) p.29: "So long as the requisite standard of
usually be obvious; any less-demanding standard requires more work ..."
1996J Q.B. 517, 554 per Sir Thomas Bingham M.R. (adopting asubmission
124 R.
. QC).
t Exp. Hammersmith and FulhamLBC [1991J 1 A.C. 521.
12. Bugdaycay v Secretary ofState for the Home Department [1987J A.C. 514, 531.
'fficu1ties of such an approach, see the concurring reasons of LeBel J. in
127 R. v Secretary ofState for the Home Department Ex p. Launder (No.2) [1997J 3All E.R. 961, 978.
7.
~n Reuters (Professional) UK Limited and Contributors
Wednesbury's Reason and Structure 257
It is appropriate to note at this juncture that the indicia of unreasonableness are
separate from the factors that determine the appropriate standard of review. For
example, although the complex nature of the decision and the decision-maker's
expertise may be relevant in determining the appropriate standard of review, they
do not touch on the unreasonableness of the decision per se. A decision is not any
more or less unreasonable because it was rendered by an expert decision-maker
or because it required the exercise of judgment.
An example should suffice to make the point. In R. v Secretary ofState for the
Home Department Ex p. Launder (No. 2/ 23 the applicant challenged the Minister's
decision to extradite him to face trial on politically-sensitive charges of bribery in
Accordingly, the applicant feared that he might not receive a fair trial and on this
basis challenged the decision to extradite.
Lord Hope of Craighead held that the Minister had to consider not only the
"framework of law" put in place to govern the hand-over but also the "hearts and
minds" of the officials in charge of the system after the hand-over. I" Ultimately
the decision required "the exercise of judgment of a kind which lies beyond the
expertise of the court".125 However, the presence of a fundamental right required
the court to apply "anxious scrutiny".12. The House of Lords took the view that
two legitimate points of view could be held. One that China was, in view of
previous actions, "incapable of giving effect to the rule of law on which the Basic
Law must depend"; the other that China had:
"good reason to make every effort in [Hong Kong] to preserve the existing
criminal justice system, in recognition that it would not be appropriate to
practice the socialist system and policies there.,,127
A failure of the rule of law in this or other cases would have serious repercussions
for China, giving the Chinese an "obvious interest,,12s in ensuring that the applicant
received a fair trial. Thus a reasonable Minister could be confident about the
chances of the applicant receiving a fair trial.
Analytically, the interests of the applicant and the policy-infused nature of the
not in determining whether the decision was reasonable per se. While the applicant
demonstrated that a fundamental right was at stake, he could not identify any
indicia of unreasonableness. Anxious scrutiny was therefore of no assistance to
question counselled a deferential approach on the part of the reviewing court, but
it did not affect the unreasonableness of the decision per se.
123 R. v Secretary ofState for the Home Department Ex p. Launder (No.2) [1997] I W.L.R. 839; [1997J 3All E.R.
961.
[1997] 3All E.R. 961, 978.
v Secretarv ofState for the Home Department Ex p. Launder (No.2)
125 R. [1997] 3All E.R. 961, 978.
v Secretor>; ofState for the Home Department Ex p. Launder (No.2)
128 R. v Secretary ofState for the Home Department Ex p. Launder (No.2) [1997] 3All E.R. 961, 978.
[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors
258 Public Law

Conclusion Deciding whether reasoning is cogent or evi

judges to make difficult judgments, which wi
Review of an impugned decision for unreasonableness inevitably involves a
However, unreasonableness seems to have b
reviewing court in a consideration ofthe merits ofthe impugned decision. However,
grace has not yet fallen"I]3 on Wednesbury,
the consideration of matters which go to the merits of a decision, or its substance,
community to understand it properly. Fully.
is not particularly problematic. First, a consideration of the merits or substance is
remain a valuable component of the admini
inevitable in any review for unreasonableness:
century.
"Any adjudication upon the reasonableness of a decision must involve an
evaluation ofthe merits. Reasonableness is not a quality that exists in isolation.
When a court says that a decision under review is 'reasonable' or 'patently
unreasonable' it is making a statement about the logical relationship between
the grounds of the decision and premises thought by the court to be true.
Without the reference point of an opinion (if not a conclusion) on the merits,
such a relative statement cannot be made.,,129
Secondly, unless a standard of correctness applies, the reviewing court will never
stand in the shoes ofthe delegated decision-maker and re-take the original decision,
or impose its view of the correct decision:
"Review of the merits is a type of review on non-procedural grounds, but
there may be non-procedural grounds of review (such as those relating to the
reasoning or purposes supporting a decision) which do not necessarily require
a reviewing court to evaluate the decision itself. Nevertheless, this type of
review may be conducted by reference to standards which are substantive in
the sense that they are concerned with the value ofthe decision, action or rule
itself, albeit not with its correctness."IJO
A consideration of the merits is not the same as a decision on the merits. Thus, it
is not novel to suggest that the merits or substance of a decision should be
considered. Courts engaged in judicial review routinely do so.
Although my analysis suggests that Wednesbury need not and should not be
condemned, I do not suggest that my proposed redefinition of unreasonableness
will cure all ills:
"Since the precise way in which courts interfere with agency findings cannot
be imprisoned within any form ofwords, new formulas attempting to rephrase
the old are not likely to be more helpful than the old. There are no talismanic
words that can avoid the process ofjudgment. The difficulty is that we cannot
escape, in relation to this problem, the use of undefined defining terms.,,131

129 Canadian Assoc a/Industrial Mechanical andAllied Workers Local 14 v Paccar a/Canada Ltd [1989] 2 S.C.R.
983,1018 per Sopinka J. J
130 David Feldman, "Convention Rights and Substantive Ultra Vires" in Christopher Forsyth (ed) Judicial Review
alld the Constitution (Oxford: Hart, 2000) p.250 (emphasis added). Sec also p.257. 1
III Universal Camera Corp v National Labour Relations Board (1951) 340 U.S. 474, 489 per Frankfurter J.
Nonetheless, "a standard leaving an unavoidable margin for individual judgment does not leave the judicial judgment IJ2 For a particularly sceptical view, see Gerald Frog, "The IdCOIJ
at large even though the phrasing of the standard does not wholly fence it in". Sec also Final Report a/the Attorney Harv. L.R. 1276.
Gelleral:, Committee on Administrative Procedure (Washington DC: United States Government Printing Office, 133 William Wade and Christopher Forsyth, Administrative Law, I
1941) pp.90-92. p.314.

[2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professia
 Wednesbury's Reason and Structure 259

Deciding whether reasoning is cogent or evidence is sufficient will also require

judges to make difficult judgments, which will often be of a subjective nature.'J2
ISlon for unreasonableness inevitably involves a
However, unreasonableness seems to have been misunderstood. As the "coup de
'on ofthe merits ofthe impugned decision. However,
grace has not yet fallen,,13] on Wednesbury, it behoves members of the legal
hich go to the merits of a decision, or its substance.
community to understand it properly. Fully developed, unreasonableness may
. First, a consideration of the merits or substance is
remain a valuable component of the administrative law firmament in the 21 st
easonableness:
century.
the reasonableness of a decision must involve an
easonableness is not a quality that exists in isolation.
decision under review is 'reasonable' or 'patently
g a statement about the logical relationship between
ion and premises thought by the court to be true.
'nt of an opinion (if not a conclusion) on the merits,
cannot be made.,,129

correctness applies, the reviewing court will never

ted decision-maker and re-take the original decision,
ct decision:
a type of review on non-procedural grounds, but
al grounds of review (such as those relating to the
'Porting a decision) which do not necessarily require
uate the decision itself. Nevertheless, this type of
by reference to standards which are substantive in
ncemed with the value of the decision, action or rule
correctness. ,,130

is not the same as a decision on the merits. Thus, it

the merits or substance of a decision should be
judicial review routinely do so.
. ests that Wednesbury need not and should not be
that my proposed redefinition of unreasonableness

which courts interfere with agency findings cannot

form ofwords, new formulas attempting to rephrase
more helpful than the old. There are no talismanic
rocess ofjudgment. The difficulty is that we cannot
problem, the use of undefined defining terms.,,131

r
,i

~
.cal andAllied Workers Local 14 v Paccar ofCanada Ltd [1989] 2 S.C.R.

and Substantive Ultra Vires" in Christopher Forsyth (ed) Judicial Review

p.250 (emphasis added). See also p.257.
bour Relations Board (1951) 340 U.S. 474, 489 per Frankfurter 1.
. Ie margin for individual judgment does not leave the judicial judgment
[lImdard does not wholly fence it in". See also Final Report of/he Attorney
~edure (Washington DC: United States Government Printing Office,
132 For a particularly sceptical view, see Gerald Frog, "The Ideology of Bureaucracy in American Law" (1984) 97
Harv. L.R. 1276.
13J William Wade and Christopher Forsyth, Administrative Law, 10th edn (Oxford: Oxford University Press, 2009)
p.314.

Itwmson Reuters (Professional) UK Limited and Contributors [2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors

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