The Survival of Reasonableness Review: Confirming the Boundaries

Abstract

Predictions have been made about the inevitable demise of judicial review of executive action on the grounds of ‘reasonableness’ for some time. This is especially heightened as and when other substantive grounds of judicial review — for example, proportionality and review for material error of fact — emerge and gain traction. It is argued that these newer grounds are much better suited to the task of reviewing the substance of executive decision-making and they, therefore, reduce the appetite for reasonableness review. This paper considers judicial attempts to retain such review in England, Australia and Canada, notwithstanding the flourishing of other substantive grounds of review. It evaluates the reasons, particular to each jurisdiction, for retaining reasonableness review. In the English context, it could be a useful tool to slow down advances in the scope of review. In the Australian context, it could be a suitable vehicle for the incremental expansion of substantive review relative to proportionality, in a way that is not too disruptive of the relatively conservative approach to judicial review on questions of substance. In the Canadian context, it is the only counterpoint available to correctness as a standard of review in the area of substantive review. It could be argued that the retention of a standard of review — like reasonableness — that has a tendency towards deference is misplaced in an era where there appears to be a growing interest in strengthening a culture of justification in the executive through stronger judicial review. Here the aims of the paper are modest. It is not being suggested that reasonableness review should be the sole or primary ground for substantive review. Instead, the paper argues that there is some merit in retaining a tool that is more readily capable of a deferential application (relative to proportionality or correctness as standards of review). The merit of reasonableness review lies in its cautious approach rather than its potential to grow into a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in today’s substantive review landscape.