Vavilov – a restatement of reasonableness – Adrienne Copithorne (2)
6 February 2020
In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,
These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.
The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.
In Vavilov, the majority briskly sets out that the presumption of reasonableness should apply in all judicial reviews, but it can be rebutted if (a) evidence of legislative intent indicates a particular standard should apply, such as the appellate standard for statutory appeals; (b) where the rule of law requires that correctness apply, namely for constitutional questions, “general questions of law of central importance to the legal system as a whole” and questions relating to the jurisdictional boundaries between two administrative bodies. There is, therefore, no longer any need to carry out a ‘contextual analysis’ to arrive at the standard of review, although contextual factors will assist in determining whether a decision is reasonable.
When applying the reasonableness standard, the Court placed fresh emphasis on the need to consider the reasons given by the administrative decision maker and the decision that has been made, not what might have been made. The Court stated,
…it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those whom the decision applies.
A reasonable decision is
…one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.
The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made”.
The Court makes a break with previous jurisprudence in its treatment of “deference” to the administrative decision maker. In acknowledging the very broad range of decisions and decision makers that will come before the Court, the majority stated,
Despite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case.
The Court also presents the quest for reasonableness as in part the responsibility of administrative decision makers. The majority writes,
…administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness.
This attention to the flip side of administrative decision making marks a change from previous cases, where the focus of the relationship was almost wholly on the role and duties of the court.
Vavilov should be welcomed as a restatement of the reasonableness standard which attempts to address the issues arising from application of that standard that arose following Dunsmuir. Whether the attempt is successful will be shown by subsequent decisions but it does present a simpler and more coherent basis for review than the previous “pragmatic and functional” approach.
Wednesbury and proportionality
In the UK, Wednesbury reasonableness has been the subject of considerable thought by the courts, but without the holistic intervention of a case like Dunsmuir or Vavilov. This may in part reflect the fact that in England and Wales, which is by far the largest jurisdiction in the UK, the majority of judicial reviews are heard only in the Administrative division of the High Court, with a single Court of Appeal acting as appellate body. Unlike in Canada, with superior courts and courts of appeal in every province and territory, in the UK there are simply fewer courts taking different attitudes to assessing claims and so greater judicial consensus in approach. However, as the cases below will demonstrate, this UK Supreme Court has nonetheless frequently been confronted with the question of the adequacy of Wednesbury reasonableness.
The issue began to emerge with the rise of British citizens successfully taking human rights claims to the European Court of Human Rights (“ECtHR”) in Strasbourg, where it became apparent that the Wednesbury reasonableness standard was not adequate to address these claims. Decisions which were held to be reasonable in the domestic courts nonetheless were rejected in the ECtHR as being disproportionate intrusions on the human rights of the applicant. Even outside of the ECHR context, in cases such as R v Secretary of State for the Home Department, ex parte Bugdaycay  UKHL 3, the Court found that within the scope of the Wednesbury standard, there must be room for greater or lesser intensity of review by the courts when it came to questions of fundamental rights:
The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.
While Lord Bridge’s concern was justified, it is not clear how a court should conduct a “more rigorous” review in a state of “anxious scrutiny” that nonetheless is faithful to Wednesbury. More rigorous attention to the claim will not alter whether it contains a fundamental error or is within the range of reasonable responses. In an extra-judicial lecture in 2014, Lord Sumption, at that time a judge of the UK Supreme Court (now retired) put this question in light-hearted terms,
The image of nail-biting anxiety as judges crouched in the road observing the oncoming headlights of a fundamental right was certainly calculated to show that the judiciary were on the case. But what did anxious scrutiny actually involve, and how did it differ from the presumably slapdash or casual scrutiny that was appropriate in less fundamental cases?
Lord Sumption took the view that “anxious scrutiny” added nothing of value to determination of cases and at worst, mask the court’s true analysis. It is notable that in Vavilov, the Canadian Supreme Court specifically rejected such an intensity of review approach, insisting that reasonableness remains a “single standard”.
Perhaps unsurprisingly the “anxious scrutiny” test was still not sufficient to pass muster in cases that went to the European courts. For example, in Smith and Grady v United Kingdom  ECHR 180 the ECtHR allowed a claim that had failed in the UK domestic courts on the basis that the Wednesbury standard, even when applied with “anxious scrutiny”, was inadequate to address the interference with the applicants’ rights to a private life under Article 8 of the ECHR. The ECtHR applied a proportionality test which considered whether the interference with the right was in accordance with the law, has a legitimate aim in light of the relevant public policy objectives and was “necessary in a democratic society” to achieve that aim. The divergence between the domestic and Strasbourg courts was resolved when the Human Rights Act 1998 was enacted, which allowed domestic courts to apply the proportionality test rather than Wednesbury in claims predicated on violations of the individual’s rights under the ECHR. However, the Act did not extend to claims arising only from questions of domestic law, where Wednesbury remained the appropriate standard.
Increasingly the domestic courts began to consider cases engaging issues of European Union law, which also required a proportionality standard of review under Article 5(4) of the Treaty on European Union. The article expressed proportionality in very general terms, namely “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”, and its application greatly depended on the issues before the court. Nonetheless, it became an additional source of pressure towards incorporating proportionality more generally in UK law.
In R v Daly  UKHL 26 Lord Steyn in the House of Lords described the proportionality criteria as ‘more precise and more sophisticated’ than the traditional grounds of review. Although the courts could not stray into the forbidden realm of judging the merits of a decision and the spheres of court and administrator were to remain separate, some greater nuance was required than by the Wednesbury standard. “In law, context is everything”, Lord Steyn memorably stated, in a phrase that calls to mind the Canadian administrative law jurisprudence of the time.
In R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence , the Court of Appeal went so far as to suggest that when viewed alongside proportionality, it was difficult to see the justification for retaining Wednesbury even in cases which did not raise issues of ECHR or European Community law. The main obstacle was the courts’ traditional fear of straying into judging the merits of the decision. Rather like showing a “lack of deference” in the Canadian context, “merits review” was shorthand for the court stepping into the shoes of the decision maker and making the decision itself. Proportionality, particularly in its assessment of the relationship between the interference with fundamental rights and the aim pursued by that interference and whether a less intrusive measure could be adopted, was seen as allowing judges to get too close to the substance of the decision to be compatible with the fundamental constitutional principle of Parliamentary sovereignty.
As a result, as of the date of this post, Wednesbury remains intact albeit subject to serious inroads. A series of recent cases in the Supreme Court have considered the relationship between Wednesbury and proportionality and have offered various views but no final resolution.
In Bank Mellat v HM Treasury (no 2) [ UKSC 38 &  UKSC 39] the UK Supreme Court struck down as unlawful a direction by the Treasury that forbade dealings with the claimant bank on the basis that it had connections with Iran’s nuclear and ballistic missile programme. The primary ground on which the Court made its decision was that the direction was ‘disproportionate’, upholding the appellant’s argument that the direction violated its rights under the ECHR.
In this decision, Lord Reed traced the development of proportionality as a check on executive power from the Enlightenment, through its adoption in the German courts as a ground of judicial review. In the case law of the European Court of Human Rights it was further developed as the principal test for the lawfulness of what were otherwise violations of human rights. From there it migrated to Canada, where, in Lord Reed’s words:
The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit.
Lord Reed set out the proportionality criteria as follows: (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter …In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.
It is striking that Lord Reed felt the need to invoke the common law Canadian conception of proportionality rather than simply referring to the ECtHR and EU traditions which already were in common currency in UK cases involving issues of ECHR rights or EU law. Perhaps the intended implication is that proportionality is not a ‘foreign’ transplant but rather an influence that can be found within the wider common law world and therefore less antagonistic to the domestic Wednesbury test.
In Kennedy v Charity Commission (Secretary of State for Justice intervening  UKSC 20 the UK Supreme Court considered the exemption for inquiries carried out in the public interest by the Charity Commission from the Freedom of Information Act regime for disclosure of documents. Lord Mance, delivering the lead judgment stated:
…[B]oth reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context.
Lord Mance went on to say,
In Pham v Home Department, [LINK] the Court considered a decision to strip a naturalized British citizen of his British citizenship on the grounds of his believed involvement with Al Qaeda abroad, which would have rendered him stateless. Although the claim raised issues of EU law, it did not turn on them, and the court clearly moved forward towards embracing proportionality as a common law standard of review. Lord Mance, relying on his own judgment in Kennedy, states that proportionality could be the appropriate standard in a common law claim, stressing that proportionality does not necessitate a more intense review, but rather a structure for that review, with the degree of judicial restraint still open to the court.
The right approach is now surely to recognise, … that it is inappropriate to treat all cases of judicial review together under a general but vague principle of reasonableness, and preferable to look for the underlying tenet or principle which indicates the basis on which the court should approach any administrative law challenge in a particular situation.
However, he then identifies the ‘tenet or principle’ in the case before him as the ‘principles of accountability and transparency’. This is undoubtedly correct, but such abstract principles are not sufficient to indicate how the lawfulness of the decision should be analysed. Both Lord Mance in Kennedy and Lord Reed in Bank Mellat identify the value of the proportionality test as a “heuristic tool”in providing a structure for assessing the lawfulness of a decision. Whilst an assessment for Wednesbury unreasonableness might also follow a structured chain of thought, proportionality requires each element to be independently addressed and assessed, leading to greater transparency in decision making. Lord Mance also noted that proportionality review does not always mean more intense scrutiny than when applying a test of reasonableness as it depends wholly on the context of the case what the court will consider to be proportionate.
Lord Reed distinguishes between proportionality as a “general ground of administrative action, confining the exercise of administrative power to means that are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights.”
The former readily lends itself to reasonableness since a disproportionate action will usually also be unreasonable. The latter form of proportionality is supported in a number of cases outside of the EU/ECHR context. Lord Carnwath and Lord Sumption preferred the view that proportionality and reasonableness form a sliding scale, with the more stringent scrutiny of proportionality applying in cases involving issues of fundamental rights, regardless of their legal origin.
In Keyu v Secretary of State for Foreign and Commonwealth Affairs,  UKSC 69 the appellants invited the court to find that proportionality should replace reasonableness in all domestic judicial review cases, including those that did not rely on rights derived from the ECHR or EU. Unfortunately, the Court declined to resolve the conflict between proportionality and reasonableness on the basis that to do so involved such profound constitutional implications it would only be appropriate for a nine member panel, not the five that was currently constituted.The majority also declined to find the decision not to hold an inquiry into past human rights abuses by the British army in Malaya was Wednesbury unreasonable.
In Keyu Lord Kerr queried whether it was right to assume the two standards could not co-exist peacefully as they had for decades and given that they are conceptually distinct, although similar at the margins. Lord Kerr also confessed difficulties with the Bank Mellat proportionality test being applied to administrative decisions where no violation of fundamental rights was alleged. He suggests a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance said in Kennedy, this involves a testing of the decision in terms of its “suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages”.’
The UK Supreme Court’s movement towards embracing proportionality in the wider context of cases not raising questions of EU or ECHR rights should be welcomed as it will improve judicial responsiveness to the issues raised in the case itself, regardless of the origins of the law underpinning the claim. At least in cases alleging violations of fundamental rights, no matter where those rights are found, surely more comprehensive scrutiny is required than whether the violation was “reasonable” in the Wednesbury sense. However, as Professor Mark Elliott has argued, it is necessary to ensure that a proportionality approach is tempered by judicial deference as advocated by Lord Mance in Kennedy and Pham and its reliance on contextual factors does not collapse into “palm tree justice”where each case is decided in terms of the court’s preferred outcome (see Professor Elliott’s post here: “Proportionality and contextualism in common-law review: The Supreme Court’s judgment in Pham”, blog post, Administrative Law Matters, 17 April 2015; and see his previous post for UKHRB here) It is also apparent from the variety of judicial opinions set out above that the Court is a long way from an agreed approach to any revision to the standard or standards of review to be applied in judicial review.
In the Canadian case of Doré v Barreau du Quebec,  1 SCR 395, the Supreme Court rejected the Oakes proportionality test for assessing administrative law decisions in the Charter context, preferring instead a reasonableness standard, which is taken to incorporate the need for the decision maker to exercise appropriate respect for “Charter values”. There has been much debate over what this decision means in practice, but the Court declined to address this question in Vavilov.
It is interesting to reflect that while in the UK context, the debate has centred on including proportionality considerations in claims not involving violations of fundamental rights, in Canada the court has apparently moved the other way, extending reasonableness to claims which do engage questions of fundamental rights. Both movements have been proposed on the basis that reasonableness can encompass proportionality considerations as well as the more traditional aspects of rationality or relevance of material considerations. The attraction of reasonableness remains with the deference that standard gives to the decision maker; the attraction of proportionality is that it provides the court with a more structured and responsive tool to address each claim. It is difficult to envisage a single test or approach that could do adequate justice to the benefits of each standard, without becoming so “open-textured” as to provide little guidance.
Both the UK and Canadian Supreme Courts have repeatedly referred to the need for structured and transparent decision making and both have found the concept of “reasonableness” as traditionally formulated as lacking that structure and transparency. As the cases above demonstrate, “reasonableness” is a protean concept that can be grappled with in a myriad of ways. The difficulty in settling on a comprehensive and effective approach to assessing the reasonableness of a decision arises from the enormous variety of administrative decisions and decision makers, but also from the constitutional delicacy of ensuring decisions are made lawfully but not simply redetermined by the court. However, it must be possible to formulate an analytical template for standard of review which is not either an overly specific multi-stage test or a myriad of unrelated contextual factors.
It was correct for Vavilov to maintain methodologically separate approaches for correctness and reasonableness. Collapsing all tests into one on a spectrum invites vagueness and “palm tree justice”, in the words of Professor Elliott. Vavilov also should be welcomed for setting a clear presumption of reasonableness as the standard of review and the indicia for recognizing a reasonable decision. The Court has also struck a new note inemphasizing the importance of high standards for administrative decision making in order to maintain public confidence in public administration and the justice system as a whole. While it will take time for the influence and effectiveness of Vavilov to be assessed, it should be seen as a positive development, even if it does not seek to answer every question.
Although the UK Supreme Court has yet to attempt a comprehensive reformulation of reasonableness and the standard of review for judicial review, it is likely to come soon given the judicial discussion on the relationship between reasonableness and proportionality that has animated cases in the past decade. The Conservative government in the UK has signalled on multiple occasions that it wishes to withdraw the UK from the ECHR, even though that is not an instrument of the European Union and does not arise as a consequence of Brexit. Should it do so, the requirement for proportionality review of claims arising from the Human Rights Act would fall away. Brexit is also likely to deprive the UK courts of claims predicated on EU law and its proportionality standard, although it is still highly unclear what the precise relationship between the domestic and EU law will be, post-Brexit. Depending on what, if anything, is put in place of these sources of jurisprudence it may become pressing for the Court to assert proportionality as a full participant in the domestic common law tradition. Its relationship with reasonableness and the status of that standardwould then require definitive, and hopefully illuminating,consideration by the Court.
These cases show the highest courts both in the UK and in Canada to be engaged fully in exploring the central issues raised in administrative law and seeking practical but principled solutions. Given the importance of this body of law to the lives of individuals and to the proper functioning of our society, these decisions and their future refinements should be welcomed.
Adrienne Copithorne is counsel with the Canadian Government Department of Justice. Views expressed are purely personal and not those of the Department of Justice or the government of Canada.