Wednesbury's Reason and Structure

Paul Daly
University ofOttawa
Judicial decision-making; Justification; Wednesbury unreasonableness Criticising Wednesburyl is de rigeur in legal circles. I want to suggest, however, that a proper consideration of unreasonableness in the judicial review contexe leads to some surprising conclusions. The criticisms of Wednesbury can be addressed and Wednesbury itself can be cast in a new light. Unreasonableness does not necessarily lack intemallogic and structure. Nor is it necessarily an invitation to judicial subjectivity and value judgments. In fact, unreasonableness properly understood requires both judges and administrative decision-makers to explain their decisions in a coherent manner. It is a repository of important values that may change over time. I will argue that a redefinition of unreasonableness is not only possible, but desirable.

What's wrong with Wednesbury?

Under the standard of Wednesbury unreasonableness' a reviewing court may strike a decision down only where the decision is "so unreasonable that no reasonable authority could ever have come to it" :Wednesbury has been under sustained attack for several decades. Lord Lester and Jeffrey Jowell argued in a seminal articleS 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

I Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948]1 K.B. 223. 'I exclude consideration of unreasonableness in the tort context. But see Tom Hickman, "The Reasonableness Principle: Reassessing its Place in the Public Sphere" (2004) 63 C.LJ. 166 for a discussion ofhow similar conceptions of unreasonableness might be appropriate in private and public law. 1 Wednesbury unreasonableness has typically had two connotations. It can be used to refer to the general grounds of judicial review, such as failure to consider relevant factors, fettering discretion, error oflaw, exercising a power 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. where the decision-maker has acted so unreasonably that the decision is unlawful. See Carol Harlow and Richard Rawlings, Law and Admini.Hration, 3rd edn (Cambridge: Cambridge University Press, 2009) pp.42-44. I am using it here in the latter sense. 4 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] I K.B. 223, 230. Sometimes this sense of WednesbUlY has been termed irrationality: "By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury umeasonableness'''. Council o/Ol'il Service Unions v Minister/or the Civil Sen'ice [1985] A.C. 374, 410 per Lord Diplock. I generally prefer the term unreasonableness, because irrationality has pejorative connotations. See Robert Camwath, "The Reasonable Limits of Local Authority Powers" [1996] P.L. 244, 253-255; Paul Walker, "What's Wrong with Irrationality?" [1995] P.L. 556, 569; William Wade and Christopher Forsyth, Administrative Law, 10th edn (Oxford: Oxford University Press, 2009) p.296. 5 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987] P.L. 368. 6 Lord Lester and Jeffrey Jowell, "Beyond Wednesbury: Substantive Principles of Administrative Law" [1987] P.L. 368, 372.

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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

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should perform the "burial rites"." However, it has survived ifnot thrived. 18 Reports of its demise have been greatly exaggerated, as some sceptics have graciously appreciated. 19

What does unreasonableness actually mean?

Because the pipes have not yet begun to play for Wednesbury, it seems prudent to 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 is: what does unreasonableness actually mean? To describe a decision as unreasonable tells us nothing of why the decision is unreasonable: "The incantation ofthe word 'unreasonable' simply does not provide sufficient justification for judicial intervention. Intellectual honesty requires a further and better explanation as to why the act is unreasonable.,,20 Even if one were to say that a decision would be unreasonable if: "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"" it would still be necessary to ask why the decision defied logic or accepted moral standards: "Rationality requires that decisions be made for reasons which are rational in terms of our understanding of the world. But of course rationality is an extremely complex notion; decisions can be more or less rational from different points of view, and indeed what constitutes a rational decision may itself depend upon the objects to be achieved and the means available."" A New Zealand judge has stated the problem in a more positive manner: "Ultimately, the Court must exercise a judgment in assessing the reasonableness or unreasonableness of the authority's action, and what is required is assistance in the way that judgment is to be exercised."23 In an attempt to provide some assistance in the exercise of such judgment, I have analysed a set of cases where an unreasonableness standard was imposed. I have analysed all of the Wednesbury decisions reached by the House of Lords. I have also analysed applications of unreasonableness standards by the Supreme Court
"William Wade and Christopher Forsyth, Administrative Law, 9th edn (Oxford: Oxford University Press, 2004) p.371. 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). 21 Council of Civil Service Unions v Minister for the Civil Service [1985] A.c. 374, 410 per Lord Diplock. 22 Denis Galligan, Discretionary Powers: a Legal Study of Official Discretion (Oxford: Clarendon, 1986) p.5. 23 Waitakere City Council v Lovelock [1997] 2 NZLR 385, 403 per Thomas J. See also Royal Oak Mines v Canada (Labour Relations Board) [1996]1 S.C.R. 369,409 per Cory L My approach is thus at odds with that of Evan Fox-Decent, who argues that administrators should be held to a general standard ofreasonableness, met by adherence to a variety of principles."The Internal Morality of Administration: the Form and Structure of Reasonableness" in David Dyzenhaus (ed.) The Unity of Public Law (Oxford: Hart, 2004) p.l43. In my view Fox-Decent's approach, though normatively attractive, tilts the balance too far in favour of the individual. [2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors

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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.

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out by the time they reach the highest tribunal in a jurisdiction, but because I sought simply to trace the contours of unreasonableness, this does not present a great difficulty. An important caveat is that most of the cases addressed by the Supreme Court of Canada, and all of the Chevron step 2 cases of the Supreme Court of the United States, concern judicial review of interpretations of law, whereas the Wednesbury standard applies to judicial review of exercises of discretion. 31 If one doubts the utility of a distinction between law and discretion," or thinks that interpretations of law should also in some circumstances be reviewed on a standard of unreasonableness,33 the caveat is not of great importance. Even if one wishes to retain the distinction, the contours of unreasonableness seem similar in both contexts, although different factors may be more or less relevant depending on whether an interpretation of law or exercise of discretion is being reviewed. Certainly, my analysis has suggested that the formal difference between law and discretion does not affect how courts determine whether a decision was reasonable or not.

Indicia of unreasonableness
The case law is (almost) resolutely opaque. Mysterious references by reviewing courts to unreasonableness, multiple factors, judgment, and balancing are commonplace. Therefore it was necessary to examine the case-law closely to ascertain what reviewing courts take into account in determining whether or not 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 decision is, or might be, unreasonable. One indicium is illogicality: where the means chosen by a delegated decision-maker to achieve a particular aim are not apt to achieve the aim, the inaptness points towards the decision being unreasonable. An excellent example is Zenner v Prince Edward Island College of Optometrists," Several conditions 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 a requirement that Z sit an ethics exam where "at the relevant time [no ethics course was] accredited or offered by the College or prescribed in the Regulations... ".]6 A clearer illogicality than a purported imposition of the impossible is hard to imagine. 37
31 It may al80 apply to an application oflaw to fact (B. Smythe and C. T. Emery. "Error of Law in Administrative Law" (1984) 100 L.Q.R. 612) by a decision-maker. See. e.g. Edwards (inspector o[Taxes) v Bairstow [1956] A.C. 14. R. v Monopolies and Mergers Commission Ex p. South Yorkshire Transport Ltd [1993] 1 WL.R. 23. "See e.g. Baker v Canada (Minister[or immigration and Citizenship) [1999] 2 S.C.R. 817.853-854; Peter Hogg. "The Jurisdictional Fact Doctrine in the Supreme Court ofCanada: Bell v Ontario Human Rights Commission" (1971) 9 Osgoode Hall LJ. 204. 216; David Mullan. Admimstrative Law, 2nd edn (Toronto: Irwin Law, 2001) p.108; Michael 'The Tub of Public in David Dyzenhaus (ed.) The Unity o[Public Law (Oxford: Hart, 2004) p.469. .. See Paul CraIg, Admlllistrative Law, 6th edn (London: Sweet and Maxwell, 2008) pp.467-473. 34 Canada (immigration and Citizenship) v Khosa [2009] I S.C.R. 339, 360. 35 Zenner v Prince Edward island College o[Optometrists [2005] 3 S.C.R. 645. 36 Zenner v Prince Edward Island College o{Optometrists [2005] 3 S.C.R. 645, 661. 37 See also Allentown Mack and Sales v National Labour Relations Board (1998) 522 U.S. 359; Fawcett Properties Ltd v Buckingham CC [1961] A.C. 636. 674 (where a planning condition did not "become invalid because some persons may creep under the umbrella of the condition who may not have been contemplated as normal [beneficiaries]"); Pension Benefit Guaranty Corp v LTV Corp (1990) 496 U.S. 633. 646.

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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 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.
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A third indicium is inconsistency with statute. Various types of inconsistency may be alleged, each of which is an indicium ofunreasonableness. I describe them in order of specificity. First, departure from the apparently plain meaning of the statute is an indicium of unreasonableness" s Secondly, a statutory duty may be expressly provided for by the relevant statute and failure to fulfil it is also an obvious indicium of unreasonableness,, 6 The third, fourth and fifth types of inconsistency refer to purpose, policy and value respectively. A purpose, policy 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 decision-maker may have developed a policy to help achieve the aim ofthe statutory scheme under which it operates. 48 It is appropriate to consider such matters because of: "the importance of the scheme and purpose of an Act in construing the particular words used by the legislature to disclose its true intent.''''' In Giguere v Chambre des notaires du Quebec,sO F was the notary to an elderly lady whose mental capacities were in decline. In one transaction, a valuable property was transferred for $1. G became the lady's curator and in that capacity made various claims from the respondent's indemnity fund. Seeking reimbursement from F was not possible, because he had been declared bankrupt, and F's professional insurance did not extend to fraudulent acts. The relevant statute provided that the indemnity fund should be used: "to reimburse the sums of money or other securities used by a notary for purposes other than those for which they had been delivered to him in the practice of his profession."5l

4S See esp. National Labour Relations Board v Kentucky River Community Care (2001) 532 U.S. 706 and Whitman 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 v Sweel Home Chapter ofCommunities for a Great Oregon (1995) 515 U.S. 687, 697-700, Smiley v Citibank (North 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 d'acces a I'information) [2002] 3 S.C.R. 661, Alberta Union ofPublic Employees v Lethbridge Community College [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. 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 CC [1986J A.C. 240, Japan Whaling Assoc v American Cetacean Sociery (1986) 478 U.S. 221, George v Devon CC [1989]1 A.C. 573, 604, Pauley v Bethenergy Mines (1991) 50 I U.S. 680, 706, Arkansas v Oklahoma (1992) 503 U.S. 91, Ill, Edelman v Lynchburg College (2002) 535 U.S. 106, 122. Barnhart v Walton (2002) 535 U.S. 212, 219, Chevron v Echazabal (2002) 536 U.S. 73, 84-85. For policies cases, see R. v Secretary ofStatefor Trade and Industry 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, Yellow Transportation v Michigan (2002) 537 U.S. 36, 46-47, Giguere v Chambre des notaires du Quebec [2004] 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 Authority [2010] S.C.C. 14 [46-47]. For a values case. see Baker v Canada (Minister ofCitizenship and Immigration) [1999] 2 S.C.R. 817, 859-860 48 1 leave aside the question whether it may frustrate a legitimate expectation. 49 Canadian Union ofPublic Employees v Ontario (Minister for Labour) [2003]1 S.C.R. 539, 589 per Binnie 1. so Giguere v Chambre des notaires du Quebec [2004] I S.C.R. 3. 5\ Regulation respecting the indemnity fundofthe Chambre des notaires du Quebec, R.R.Q. 1981 c. N-2, r.8 s.2.01.

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The respondent's Indemnity and Administrative Committees decided that this was a personal act, not a professional act, and that G could thus not be reimbursed from the indemnity fund. The Supreme Court of Canada quashed the decision of the Administrative Committee. Inter alia, Gonthier 1. held that the purpose of the indemnity fund was to reimburse individuals when professional insurance will not apply and that the Committee had failed to take the purpose ofthe fund into account when rendering its decision: "by characterising the transaction as personal, the two Committees took [the] fraud outside the scope ofthe fund, thus revoking the very protection the fund is intended to give. ,,52 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 unreasonable.53 Closely related to differential treatment is a fifth: unacknowledged or unexplained changes in policy. Although it is legitimate for delegated decision-makers to change their policies, because they need to be flexible in response to changing circumstances, if a particular change is not justified, it will be illegitimate. Thus, although policy changes are legitimate, a change in policy is nonetheless an indicium of unreasonableness and legitimate only ifjustifiable. In Federal Communications Commission v Fox Television Stations,54 the Supreme Court ofthe United States considered the issue ofchanges in policy. Under statute, television licensees are not permitted to broadcast material containing utterances which contain "any obscene, indecent, or profane language".55 Certain aspects of the Commission's interpretation of the prohibition had evolved over the years. 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 between literal and non-literal expletives; feared that categorical exemption of once-off non-literal expletives would lead to more widespread use; and noted that technological advances made the "bleeping out" ofexplicit language easier. Instead of the distinction between literal and non-literal expletives, it announced its intention to prefer a context-based inquiry into all uses of expletives to determine whether they fell within the prohibition. 56

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.

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The court rejected the possibility of a heightened standard for review ofchanges in policy. Generally, Scalia 1. held, it would be necessary only for an agency to "display awareness that it is changing position" without giving a detailed explanation of why it decided to change: "it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates."" A more detailed justification would only be necessary where a previous policy was based on prior factual findings which had changed, or there had been reliance on the previous policy. Here, the Commission "forthrightly acknowledged that its recent actions have broken new ground".58 This may have been enough to dispose of the case,59 but Scalia J. went on to consider the substance of the new policy.60 Indeed, it seems inevitable that a consideration of a new policy will involve some consideration ofthe delegated decision-maker's rationale for changing its position: it will in many cases be impossible to explain a particular decision without explaining the context, of which the previous decision will form a part. Breyer J., although dissenting as to the outcome, adopted an approach which did not differ greatly from Scalia 1.'s approach to the substance of the new policy: "To explain a change requires more than setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, 'Why did you change?' And a rational answer to this question typically requires a more complete explanation than would prove satisfactory were change itself 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'. But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right-side to left-side, 25 years later."61 Thus the new policy does not have to be justified as better than the old policy. It has to justified in its own terms; some explanation of the new policy's relation to the old policy will inevitably be required, but it will not be necessary to explain why the new policy is better than the old policy. A wholly unexplained and unacknowledged change of policy will be unreasonable, but where a rational explanation can be made of the new policy, it should be upheld. 62

"Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1811 (emphasis original). 58 Federal Communications Commission v Fox Television Stations (2009) 129 S. Ct. 1800, 1812. 59 Kennedy J., although joining most of Scalia J.'s opinion, concurred to emphasise that the Commission "demonstrate that the new policy rests upon principles that are rational, neutral, and in accord with the agency's proper understanding of its authority" Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1823. It is possible that Scalia J.'s extended discussion of the substance of the policy was included in response to Kennedy J.s concurrence. 60 Federal Communications Commission v Fox Television Stations (2009) 129 s. Ct. 1800, 1812-1819. 61 Federal Communications Commission v Fox Television Stations (2009) 129 S. Ct. 1800, 1830--1831 (emphasis oriSinal). See also American Hospital Assoc v National Labour Relations Board (1991) 499 U.S. 606. See generally Cass Sunstein, "Is Tobacco a Drug? Administrative Agencies as Common Law Courts" (1998) 47 Duke LJ. 1013, 1055-1068. [2011] PL., April 2011 Thomson Reuters (Professional) UK Limited and Contributors

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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. 609, R. (on the application ojMullen) v Secretary oJStateJor the Home Department [2004] UKHL 18; [2005] 1 A.C. 1, National Cable and Telecommunications Association v Brand X Internet Services (2005) 545 U.S. 967. 69 R. v Investors Compensation Scheme Ltd, Ex p. Bowden [1996] A.C. 261. 7" Financial Services (Compensation oflnvestors) Rules 1990 (SI1990/2967) r.2.04. 71 R v Investors Compensation Scheme Ltd, Ex p. Bowden [1996] A.C. 261, 281 per Lord Lloyd of Berwick.
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underlying idea is that a slight dissonance between the means and the aim need not vitiate an entire decision, as long as the dissonance can be explained by the delegated decision-maker: "In some circumstances a departure from strict logic may be permissible ... without it being able to be said that the ensuing decision is unreasonable.'m It is only an unjustifiable aberration that will vitiate a decision. This is entirely sensible: administrative decision-making is not a perfect science. Similarly, differential treatment or inconsistency may be justifiable: "A level of consistency that would be a virtue in adjudication, governed by law, may be a vice in administrative, inhibiting action intended to further the public good."" This too is entirely sensible: a foolish consistency is the hobgoblin ofthe mediocre mind. A consideration of the case law demonstrates that indicia of unreasonableness, although present, will not necessarily be fatal. It is important to stress that there is nothing inherently wrong with a decision that contains indicia of unreasonableness. However, once indicia of unreasonableness are identified, an onus, which might be described as a burden ofjustification, is then placed on the decision-maker to demonstrate that the decision is not unreasonable. It may seem jarring to think of a decision-maker having to justify themselves, but as Thomas Poole has observed: "what else was 'traditional' judicial review but a mechanism for demanding from government (certain kinds of) justification for (certain kinds of) impugned decisions?"7. Of course, the burden is not placed on the decision-maker in a literal sense, in the way that a burden of proof might be shifted during a criminal or civil trial: the question for the reviewing court will be whether sufficient justification exists in the record. Several English cases demonstrate how indicia of unreasonableness may be relied upon to attack a decision, but also how their presence may be justifiable. A series of protests by animal rights groups resulted in major ferry companies refusing to carry livestock across the Channel from England to France and led to the litigation at issue in R. v ChiefConstable ofSussex Ex p. International Trader So Ferry.75 The applicant organisation was formed by a group consisting mainly of farmers and hauliers who wished to continue transporting livestock. However, their operations were also plagued by protests which often included such an extent of illegal activity that the applicant organisation required significant police protection. Because providing full protection for each sailing would have required 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. 75 R. v Chief Constable ofsussex Ex p. International Trader's Ferry [1999] 2 A.C. 418.

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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

s Ferry [1999] 2 A.C. 418, 443 per Lord Hotfman. 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 Environment Ex p. NOllinghamshire CC [1986] AC. 240, 246, Nationsbank a/North Carolina v Variable Annuity Life Insurance Co (1995) 513 U.S. 251, 262-263.
" R. v Chie/Constable o/Sussex Ex p. International Trader
7S

Hadley.

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A case in which the justification for differential treatment was more convincingly established is R. (on the application ofL (A Child)) v J School Governors." The pupil who was the effective applicant had been permanently excluded from school by his head teacher, but the decision to permanently exclude him was overturned on appeal to an independent appeal paneL Under s.67 of the School Standards and Framework Act 1998, the pupil had to be "reinstated" by the head teacher. Due to strike threats by teachers, the pupil did not return to normal classroom activity and was educated under a special regime, initially on his own but later accompanied 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: "As to the formal reacceptance by the school ofresponsibility, that acceptance would certainly be necessary but would not be sufficient. The formal reacceptance would have to be accompanied by treatment of the pupil that was consistent with his or her status as a pupil of the schooL Otherwise the reacceptance would be meaningless ... The 'reinstatement' of an expelled pupil as a member of an organic body such a school may require the relationship of the pupil with each of [the school's] constituent parts and the expected or likely interaction between them to be taken into account.,,83 A number of factors, then, were relevant in determining whether a reinstatement had occurred, or, whether the decision of the head teacher was "unreasonable and disproportionate" or not: "the need to 'reinstate' L required the head teacher to 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, was supervised, received tuition and for whom travel arrangements to and from school were made. On the other hand, there was no social contact with other students. However, given the disruption that might have been caused to the other students had the special regime not been put in place; the threat of strike action, with examinations imminent; and the need to keep the pupil from the victim of the alleged assault which led to the permanent exclusion in the first place, the head 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 treatment was at the root of the applicant's complaint. However, any inequity in treatment was amply justified by the desire to avoid industrial strife and its deleterious effects on the education of the other students.

82

83

R. (on the application ofL (A Child)) vJ School Governors [2003] UKHL 9; [2003] 2 A.C. 633. 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. &4 R. (on the application ofL (A Child)) v J School Governors [2003] UKHL 9; [2003]2 A.C. 633, 657 per Lord Scott 0 f Foscote. R5 Although a Wednesbury challenge was not per se before the House of Lords, the rationality of the decision of the head teacher was challenged. For his part, Lord Walker of Gestingthorpe assessed the rationality of the special regime and concluded that it "was not so extreme or so disproportionate as to go beyond the limits of their managerial and pastoral discretion" R. (on the application ofL (A Child)) vJ School Governors [2003] UKHL 9; [2003] 2 A.C. 633, 661. [2011] P.L., April 2011 Thomson Reuters (Professional) UK Limited and Contributors

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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,

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Sufficient evidence
An excellent example of an "evidence" case is presented by Bowen v American Hospital Assoc. 9l Section 504 of the Rehabilitation Act 1973 provided that handicapped individuals should not: "solely by reason of [their] handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any [federally-funded] programme."92 Regulations promulgated under this section required hospitals, inter alia, to post informational notices specifying that handicapped infants should not be excluded from treatment on the basis of their disability and to put in place procedures to "prevent instances of unlawful medical neglect of handicapped infants".9] 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 by reason ofhandicap constituted discrimination. His second justification was that failure by hospitals to report suspected cases of medical neglect violated s.504. But in the regulations the Secretary had noted that the requirement of parental consent to treatment could not be overridden: "Now that the Secretary has acknowledged that a hospital has no statutory treatment obligation in the absence of parental consent, it has become clear that the [regulations] are not needed to prevent hospitals from denying treatment to handicapped infants [because] the administrative record contains no evidence that hospitals have ever refused treatment authorised either by the infant's parents or by a court order.,,9. Moreover, the parental interest in bringing attention to refusals of treatment would adequately further the purpose of s.504. Critically, the supposed need for the regulations was based on cases where parental consent had been refused: "they provide no support for [the Secretary's] claim that federal regulation is needed in order to forestall comparable cases in the future".95 Equally, the other cases relied on to support the procedural requirement imposed on hospitals failed "to disclose any discrimination".96 In sum, "deference cannot fill the lack of an evidentiary foundation ... ,,97

91

92 Rehabilitation Act 197329 USC 794.

93
95

Bowen v American Hospital Assoc (1986) 476 U.S. 610.

45 CFR 84.55 (1985 J.

v American Hospital Assoc (1986) 476 U.S. 610. 631 (emphasis added). 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 (1985) 474 U.S. 121, Bugdaycay v Secretarv ofS/ate/or the Home Department [1987] A.C. 514, R. v Chie/Constable ofSussex Ex p.lnternational Trader s Ferry [1999] 2 AC. 418, Mount Sinai Hospital Center v Quebec (Minister 0/ Health and Social Services) [2001]2 S.C.R. 281 (concurring reasons ofBinnie J.),Alaska Department o/Environmental Conservation v Environmental Protection Agency (2004) 540 U.S. 461.
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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 relevant. The reasoning adduced to justifY the presence of these indicia of unreasonableness was insufficiently cogent: "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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"[T]here must be material on which the Chief Constable can reasonably apprehend such public controversy and, in the circumstances of this case, T can find no material whatever to support the view that the appointment of a teacher is likely to lead to public controversy. "IOJ The absence of sufficient evidence to justify the illogicality and disproportionality vitiated the decision. Thus, both approaches can be relevant, sometimes in the same case. The important point is that unreasonableness, when understood in this sense, does not require a judge to pronounce from on high a subjective view of whether or not a decision is unreasonable. The considerations leading to a finding of unreasonableness, and the reasons for rejecting the decision-maker's explanations, will be brought into the open, where they can be parsed by the wider legal community.

Implications
The first and, in the light of the barrage of criticism which Wednesbury has been subjected to over the last several decades, most surprising implication is that unreasonableness has an intemallogic and structure. It is not necessarily the case that Wednesbury needs to be jettisoned in favour of the more "structured" and "reasoned" proportionality standard. lo4 It seems clear that a reviewing court's determination ofwhether or not a decision is unreasonable proceeds in the following manner, at least as a matter of theory. First, the applicant argues that one of the indicia of unreasonableness is present. The applicant will have to demonstrate the presence of an indicium of unreasonableness prima facie. It may be immediately evident, or it may have to be developed at some length. On occasion, the applicant will fail to establish that any indicium of unreasonableness is present. On other occasions, indicia of unreasonableness will be established to be present. The presence of indicia of unreasonableness will, if established, have to be justified by the decision-maker. What amounts to a burden ofjustification can be discharged by reference to cogent reasoning or sufficient evidence on the part of the decision-maker. 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 with invoking the authority of 'the people' are legitimate only if they can be shown to be justifiable.",o6

Champion v ChielConstabie olGwent [1990] I W.L.R. 1; [1990] I All E.R. 116, 120 (emphasis added). Paul Craig, Administrative Law, 6th edn (London: Sweet and Maxwell, 2008) p.637. 105 See Sian Elias, "Administrative Law for 'Living People'" (2009) 68 C.L.J. 47, 62--{)6; Etienne Mureinik, "Reconsidering Review; Participation and Accountability" [1993] Acta JUrldica 35. cf. Lord Steyn, "The New Legal Landscape" [2000] E.H.R.L.R. 549. 106 David Dyzenhaus, "Law as Justitkation: Etienne Mureinik's Conception of Legal Culture" (1998) 14 South Alrican Journal olHuman Rights, 11,35.
IUJ

104

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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 prescriptions about good public administration."1]4 Fourthly, unreasonableness is not static. If understood in the way that I have suggested, unreasonableness is a dynamic concept. The set of indicia of unreasonableness is not closed. According to changes in judicial and social attitudes to delegated decision-makers, indicia may be added or subtracted from the set identified above:

Jeffrey Jowell, "Beyond the Rule of Law: Towards Constitutional Judicial Review" [2000] P.L. 671, 680. 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.
107

108 See

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"New principles emerge by a process of accretion reflecting a constitution's changing imperatives and shifting settlements. These are based upon altering notions of the proper scope of governmental power as well as upon other fundamental social values which become endorsed over time.,,115 Felix Frankfurter's advice, rendered in the context of statutory interpretation generally, seems apposite: "In those realms where judges directly formulate law because the chosen lawmakers have not acted, judges have the duty of adaptation and adjustment of old principles to new conditions.,,116 Whether the rule oflaw, principles of good administration,1I7 or some conception of justice supplies the indicia is not especially important. What matters is that unreasonableness is sufficiently flexible and dynamic to be responsive to changes in context. Fifthly, if unreasonableness requires variable standards of review,1I8 such as sub- and super-Wednesbury, variability would best be accommodated by varying the burden of justification. The sub-Wednesbury standard requires the "most anxious scrutiny" to be applied to impugned decisions. 119 What anxious scrutiny actually requires is that the burden of justification on the decision-maker be 120 increased. But the super- Wednesbury standard dictates that certain grounds of review will not be available. Hence the statement of Lord Bridge in the Hammersmith case that a Secretary of State's decision pertaining to the allocation of central government funding to local authorities could be reviewed, but only for error of law, bad faith, improper purposes or manifest absurdity and not on the ground of Wednesbury unreasonableness. III At one end of the spectrum, then, the focus is on the burden ofjustification; at the other end, the focus is on the available grounds of review. The distinction simply makes no sense, as an analytical matter. A focus, however, on the burden ofjustification might permit variable standards of review to be coherently developed. 122

115 Jeffrey Jowell, "Of Vires and Vacuums: the Constitutional Context of Judicial Review" [1999J P.L. 448, 455-456. Internal citation omitted. 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 fonnulating judicial review doctrine, have been engaged in the development of principles of good administration. If 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. 118 For arguments in favour of variable standards of review see Frank Iacobucci, "Articulating a Rational Standard of Review Doctrine: a Tribute to John Willis" (2002) 27 Queens' LJ. 859, Sir John Laws, "Wednesbury" in Christopher Forsyth and Ivan Hare (eds) The Golden Metwand and Crooked Cord: Essavs in Honour a/William Wade (Oxford: Hart. 1998) p.185. 119 As a metaphor, or descriptive label, the tenn is unfortunate. It suggests that judicial scrutiny may increase or 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 unreasonableness equates to lunacy, it will usually be obvious; any less-demanding standard requires more work ... " "0 R. v Ministryo/De/ence Ex p. Smith [1996] Q.B. 517, 554 per Sir Thomas Bingham M.R. (adopting a submission on behalf of the applicant by David Pannick QC). 121 R. v Secretary a/State/or the Environment Ex p. Hammersmith and Fulham LBC [1991] 1 A.C. 521. 122 For a consideration of the possible difficulties of such an approach, see the concurring reasons of LeBel J. in Toronto (City) v CUPE [2003] 3 S.C.R. 77.
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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 Hong Kong. Although the relevant decision and the challenge to it were made before the handing-over of Hong Kong to the Chinese Government, it was clear that by the time of trial, Hong Kong would no longer be under British control. 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 decision were factors to be taken into account in determining the standard ofreview, 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 him. Similarly, the Minister's expertise in reaching a decision on a complex question counselled a deferential approach on the part of the reviewing court, but it did not affect the unreasonableness of the decision per se.

961.

123

R. v Secretary ofState for the Home Department Ex p. Launder (No.2)

v Secretarv ofState for the Home Department Ex p. Launder (No.2) v Secretor>; ofState for the Home Department Ex p. Launder (No.2)

[1997] I W.L.R. 839; [1997J 3All E.R.

[1997] 3All E.R. 961, 978. [1997] 3All E.R. 961, 978. 12. Bugdaycay v Secretary ofState for the Home Department [1987J A.C. 514, 531. 127 R. v Secretary ofState for the Home Department Ex p. Launder (No.2) [1997J 3All E.R. 961, 978. 128 R. v Secretary ofState for the Home Department Ex p. Launder (No.2) [1997] 3All E.R. 961, 978.
124 R. 125 R.

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Conclusion
Review of an impugned decision for unreasonableness inevitably involves a reviewing court in a consideration ofthe merits ofthe impugned decision. However, the consideration of matters which go to the merits of a decision, or its substance, is not particularly problematic. First, a consideration of the merits or substance is inevitable in any review for unreasonableness: "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. 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. 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 at large even though the phrasing of the standard does not wholly fence it in". Sec also Final Report a/the Attorney Gelleral:, Committee on Administrative Procedure (Washington DC: United States Government Printing Office, 1941) pp.90-92.

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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 However, unreasonableness seems to have been misunderstood. As the "coup de grace has not yet fallen,,13] on Wednesbury, it behoves members of the legal community to understand it properly. Fully developed, unreasonableness may remain a valuable component of the administrative law firmament in the 21 st century.

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.
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