Convergence and Divergence in English and Canadian Administrative Law II: Convergence
Part 2! This is a long post. Those familiar with the details of recent developments in England and Canada should skip to the last section, “Explaining Convergence”. For Part I, see here.
The period of post-Anisminic divergence had by the 2000s created two markedly different systems of judicial review of administrative action. Since then, however, the systems have begun to converge. On the one hand, Canada’s pragmatic and functional approach has evolved towards a one-size-fits-all reasonableness standard, which applies to almost all administrative interpretations of law, to exercises of discretionary power and even to some questions of constitutional law. On the other hand, European influences have prompted English judges to grapple with the framework for review of discretionary powers, wrestling in particular with the suggestion that Wednesbury unreasonableness could be supplanted by a proportionality test. As we shall see, English judges seem tempted by a one-size-fits-all reasonableness standard. The convergence to be charted in this section should not be overstated: it is at best halting, it covers only discretionary powers, and it only portends future developments in respect of error law in England. But it nonetheless underscores how convergence and divergence can be prompted and subsequently explained by historical happenstance.
England
Several eminent scholars have advocated replacing Wednesbury with proportionality. The impetus here comes from the introduction to domestic law of proportionality through, first, European Union law (via the European Communities Act 1972) and, subsequently, the Human Rights Act 1998 (which incorporates many of the rights protected, at the international level, by the European Convention on Human Rights). It is variously said that the more structured methodology of proportionality is superior to the methodology of Wednesbury;[1] that the law would be simplified if proportionality, already used in European Union law cases and human rights adjudication, were adopted as the general common law ground of review;[2] and (more recently) that proportionality has deep historical roots in the common law.[3] It has been said in response that properly understood Wednesbury has its own structure;[4] that Wednesbury preserves an appropriate balance between decision-making autonomy and judicial intervention, which would be upset by the introduction of more intrusive proportionality review[5]; and that deferential Wednesbury review and less deferential proportionality review serve different functions.[6]
The judges have tended to equivocate.[7] Lord Steyn’s discussion in R (Daly) v Secretary of State for the Home Department[8] remains influential. In his obiter comments on the difference between common law review and proportionality review, Lord Steyn took the view that although there was “some overlap” between the two, “the intensity of review is somewhat greater under the proportionality approach” than under Wednesbury.[9] Yet although he suggested that, in general, proportionality review will be of greater intensity than Wednesbury review, he emphasised the role of context. He approved of Laws LJ’s comment in R (Mahmood) v Secretary of State for the Home Department to the effect that “that the intensity of review in a public law case will depend on the subject matter in hand”,[10] before adding: “In law context is everything”.[11] Indeed, there are less-intense and more-intense variants of Wednesbury,[12] so-called super-Wednesbury review reserved for matters of high policy[13] and so-called sub-Wednesbury review requiring “anxious scrutiny” of decisions having an impact on important rights.[14] As Lord Mance pithily summarised in Pham v Home Secretary: “Whether under EU, Convention or common law, context will determine the appropriate intensity of review”.[15]
Interestingly, however, although partisans in the substantive review debate typically advocate either that proportionality should sweep the board or that proportionality and Wednesbury (usually in a modified form) should both be retained and kept distinct, the United Kingdom Supreme Court seems poised to sanction a merger of Wednesbury and proportionality.
The catalyst is the apparent acceptance by the Supreme Court of Professor Craig’s view of the conceptual similarity between Wednesbury and proportionality.[16] Consider the following dictum of Lord Mance in Kennedy: “Both 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”.[17] This was taken further in Pham where it was said of Lord Mance’s reasons in Kennedy that “a majority of this court endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake”.[18] Lord Mance himself (writing for a group of four judges on a seven-judge court) found it, in the context of a decision stripping a British national of citizenship (with the corollary that he would also lose the benefits of being a European Union national), “improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law”.[19]
Lord Sumption, with whom three other judges agreed, was even more expansive. He noted that the use of proportionality in cases involving human rights and EU law but not domestic law produced “some rather arbitrary distinctions between essentially similar issues”.[20] Here, for instance, the citizenship decision would be reviewed on domestic judicial review grounds, but if it had an EU law aspect would fall to be considered in accordance with the EU principle of proportionality. Nonetheless, despite the failure to embrace proportionality, English law “has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law”.[21] In commenting on Lord Steyn’s discussion of Wednesbury and proportionality in Daly, Lord Sumption said:
It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.[22]
What will ultimately matter, Lord Sumption seems to suggest, is “the strength of the justification or the breadth of the decision-maker’s margin of judgment”.[23] On this emergent view – on which no “[f]inal conclusions” have been reached[24] – there is no great difference between Wednesbury and proportionality. Both involve questions of weight and balance, which fall to be assessed in the context of particular factual and legal matrices that create broader or narrower ranges of possible outcomes, depending on the circumstances. It is clear from the recent cases that the Supreme Court finds significant attraction in the concept, most clearly advocated by Lord Sumption, of a ‘range of rational outcomes’ which will be broader or narrower depending on all the circumstances.[25]
Canada
It has justly been said that Canadian administrative law resembles an on-going construction site.[26] By 2003, the pragmatic and functional approach featured four factors (noted above) and three distinct standards of review: correctness, reasonableness simpliciter and patent unreasonableness. No sooner had the Supreme Court of Canada forged an apparent consensus on the structure of the pragmatic and functional approach, however, than cracks began to appear in the façade.[27] Faced with mounting unhappiness in the legal profession about the complexity of the pragmatic and functional analysis,[28] the Court took the opportunity presented by Dunsmuir v New Brunswick to renovate Canadian administrative law doctrine.[29] The four factors, with their unerringly substantive focus, were replaced by a set of categories.[30] Of most interest for present purposes is the Court’s move from three standards of review to two. Correctness remained, but Binnie and LeBel JJ introduced a new definition of the reasonableness 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.[31]
Reasonableness has become the dominant standard of review in Canada.[32] It applies even to administrative decisions involving constitutional matters.[33] The details of the rise of reasonableness are not important for present purposes.[34] What matters is that the concept of a “range” of reasonable outcomes is now central to Canadian administrative law. Cases subsequent to Dunmsuir teach that reasonableness “takes its colour from its context”;[35] and that the “range will necessarily vary”,[36] which is to “be assessed in the context of the particular type of decision making involved and all relevant factors”.[37]
Much of the post-Dunsmuir jurisprudence, especially the decisions of lower courts, and the academic literature has been concerned with fleshing out the concept of a “range” and better understanding the importance of context.[38] It seems to be the case that context can be cabined by reference to the principles said in Dunsmuir to underlie Canada’s law of judicial review: the rule of law and democracy.[39] These are very broad principles, of course, but in Canadian administrative law they tend to equate with, respectively, the protection of constitutional fundamentals (including rights) and giving effect to legislative intent. Accordingly, in cases involving fundamental constitutional values or important individual interests, the range of reasonable outcomes will be narrower.[40] Prior judicial decisions on matters subsequently considered by an administrative tribunal will tend also to narrow the range of reasonable outcomes,[41] as will, potentially, the need to give effect to international obligations.[42]
Legislative intent also plays a role in setting the range of reasonable outcomes. The range of reasonable outcomes may be “circumscribed” by reference to “the rationale of the statutory regime”,[43] or the legislature might have specified “a recipe of factors to be considered”, narrowing “the range of options the decision-maker legitimately has”.[44] Equally, however, powers might have been granted in broad terms,[45] to a democratically accountable or expert decision-maker, such that the range of reasonable outcomes will be relatively large.[46] As a result, “reviewing courts can afford the administrative decision-maker hardly any margin or no margin of appreciation, a moderate margin, or a broad margin”.[47]
The Canadian courts have also provided guidance about how to determine when a decision falls outside the permissible range. Briefly, there is a two-step process, involving the identification of a “badge of unreasonableness”,[48] which then must be assessed in light of the reasons and evidence contained in the record before the reviewing court:
Where a decision is indelibly tainted by a badge or badges of unreasonableness, judicial intervention will be more or less appropriate depending on the range of reasonable outcomes. For instance, the narrower the range, the more that will be required by way of explanation of the badge(s) of unreasonableness tainting the decision. Conversely, the wider the range, the less a reviewing court should require by way of explanation.[49]
Explaining Convergence
Just as historical happenstance provides the best explanation of the divergence between English and Canadian, accidents of history best explain the recent convergence. On the Canadian side, unhappiness in the legal community with the overly complex approach to administrative law developed by the Supreme Court of Canada led the Court to renovate Canada’s law of judicial review of administrative action. Reasonableness has since become the central organising principle of Canadian administrative law. Given its centrality, it is unsurprising that Canadian courts and commentators have sought to develop their understanding of reasonableness. It can now fairly be said that reasonableness is an analytically robust feature of Canada’s legal landscape. But there was nothing inevitable about the rise of reasonableness: the Court developed a new definition of reasonableness when decomplexifying its approach to administrative law in response to criticism from the legal community.
English judges and scholars’ hesitant embrace of the concept of a range of rational outcomes can also be understood as having been prompted by complexity. With the interrelationship of European Union law, European Human Rights Law and the common law, English administrative law has come to resemble a “spaghetti junction”.[1] Anyone who has encountered the famous roundabout in Swindon will happily (or perhaps grudgingly) testify that it is very difficult to navigate – English judges have found the legal equivalent just as challenging. In cases such as Pham, where citizenship was at issue, it is quite possible that an applicant will be able to claim EU-law rights (to which the doctrine of proportionality applies), Convention rights (to which proportionality also applies, subject to the additional limitation of the “margin of appreciation” at the European level and, perhaps, to a “discretionary area of judgment” domestically[2]) and the protection of the common law (certainly Wednesbury unreasonableness and, in some circumstances, the principle of legality[3]). Categorising these different types of claim is difficult and the obvious overlaps create a significant risk that a claim will be assigned incorrectly, leading to the application of a more or less intrusive standard of review than appropriate. Advocates of a one-size-fits-all proportionality test have as yet been unable to convince other members of the legal community to adopt proportionality across the board. Recent judicial experience suggests that wide application of the protean concept of proportionality would require the development of additional doctrinal tools (such as deference) in order to ensure that the proportionality test is applied with appropriate intensity across the wide spectrum of administrative law cases, ranging from fundamental rights on one end to purely economic interests at the other extreme. This, I submit, explains the recent interest in the concept of a range of rational outcomes.
Again, it is difficult to identify a deep-seated, historically rooted institutional distinction between the English and Canadian systems that would account for the halting convergence between the two over the last decade. Rather, in responding to complexity – judicially-created in Canada, legislatively-created in England – courts and commentators in each jurisdiction have found it useful to rely upon a range of rational outcomes.
[1] Jeffrey Jowell and Anthony Lester, “Proportionality: Neither Novel nor Dangerous” in Jeffrey Jowell and Dawn Oliver eds., New Directions in Judicial Review (London: Stevens and Sons, 1988); Paul Craig “Unreasonableness and Proportionality in UK Law” in Evelyn Ellis ed., The Principle of Proportionality in the Laws of Europe (Oxford: Oxford University Press, 1999) at 99-100
[2] Paul Craig, Administrative Law 8th ed. (London: Sweet and Maxwell, 2012).
[3] Paul Craig, “Proportionality and Judicial Review: a UK Historical Perspective” SSRN, June 16, 2016. ,
[4] Paul Daly, “Wednesbury’s Reason and Structure” [2011] Public Law 238.
[5] Lord Irvine of Lairg, “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] Public Law 59.
[6] Jason Varuhas, “Against Unification” in Mark Elliott and Hanna Wilberg eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing, 2015), though see Paul Craig’s rejoinder in UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge: Cambridge University Press, 2015) at 260-271. See also Mark Elliott, “The Human Rights Act 1998 and the Standard of Substantive Review” (2001) 60 Cambridge Law Journal 301 at 305, suggesting that the “defining feature” of Wednesbury review is that a court “may simultaneously conclude that a decision which infringes an individual’s human rights is incoherent and lacking in adequate justification, but that it is not unlawful”.
[7] In R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence, the Court of Appeal appeared to think that Wednesbury’s days were numbered, but that the House of Lords would have to perform Wednesbury’s “burial rites”. [2003] QB 1397 at [35], per Lord Dyson MR. But the Supreme Court recently refused to perform the burial rites when invited to do so in Keyu v Foreign Secretary [2015] 3 WLR 1665 [Keyu].
[8] [2001] 2 AC 532 [Daly].
[9] Daly at [27].
[10] [2001] 1 WLR 840 at [18].
[11] Daly at [28]. See also at [32], per Lord Cooke of Thorndon.
[12] See generally Sir John Laws, “Wednesbury” in Christopher Forsyth and Ivan Hare eds, The Golden Metwand and the Crooked Cord (Oxford: Oxford University Press, 1998) at 186-187.
[13] See e.g. R v Environment Secretary, ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521.
[14] R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 at 531, per Lord Bridge; R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696 at 748-749, per Lord Bridge; R v Ministry of Defence, ex parte Smith [1996] QB 517; Paul Craig, “Judicial review and anxious scrutiny: foundations, evolution and application” [2015] Public Law 60.
[15] [2015] 1 WLR 1591 at [96] [Pham].
[16] “The Nature of Reasonableness Review” (2013) 66 Current Legal Problems 131.
[17] Kennedy v Charity Commission (Secretary of State for Justice intervening) [2015] AC 455 at [54], [Kennedy].
[18] Pham at [60].
[19] Pham at [98].
[20] Pham at [104].
[21] Pham at [105].
[22] Pham at [107. Emphasis added.
[23] Pham at [109]. This chimes with Lord Neuberger of Abbotsbury MR’s (as he then was) comment, made in the EU law context, that “[t]he breadth of the margin of appreciation in relation to any decision thus depends on the circumstances of the case and, in particular, on the identity of the decision-maker, the nature of the decision, the reasons for the decision, and the effect of the decision”. R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394 at [200], cited by Lord Carnwath in R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6.
[24] Keyu v Foreign Secretary Keyu at [278], per Lord Kerr. See also Youssef v Foreign Secretary [2016] 2 WLR 509 at [55], per Lord Carnwath, expressing his desire for an “authoritative review” of academic and comparative material before reaching a final conclusion.
[25] Note, however, that in Kennedy, Lord Carnwath, one of the Court’s leading public lawyers and someone with significant experience of European law and public law as a practitioner and judge, confessed himself “unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under…the HRA”. Kennedy at [267]. See also Lord Reed’s doubts in Pham, “that the Wednesbury test, even when applied with “heightened” or “anxious” scrutiny, is identical to the principle of proportionality as understood in EU law, or as it has been explained in cases decided under the Human Rights Act 1998”. Pham at [115].
[26] David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42 Queen’s Law Journal 27.
[27] Toronto (City) v Canadian Union of Public Employees, Local 79 [2003] 3 SCR 77 at [60-135]. For discussion, see Paul Daly, “The Language of Administrative Law” (2016) 94 Canadian Bar Review 519
[28] My evidence here is anecdotal only. Interestingly enough, private criticism rarely manifested itself in the reasons of lower courts or the writings of scholars.
[29] [2008] 1 SCR 190 [Dunsmuir].
[30] Smith v Alliance Pipeline [2011] 1 SCR 160 at [26]:
The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires”. On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity”; (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues.
Citations omitted.
[31] Dunsmuir at [47]. They also wrote that a reviewing court must inquire into the “justification, transparency and intelligibility” of the decision-maker process, but this language has subsequently been significantly qualified, such that it requires only a comprehensible basis for the decision. See Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708.
[32] John Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014) 27 Canadian Journal of Administrative Law & Practice 101.
[33] Doré v Barreau du Québec [2012] 1 SCR 395. Save where the constitutional validity of a law is frontally attacked, in which case the administrative tribunal’s conclusions will be subject to correctness review, as in Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467.
[34] See generally Paul Daly, “Unreasonable Interpretations of Law” in Joseph T Robertson, Peter Gall and Paul Daly, Judicial Deference to Administrative Tribunals in Canada: Its Past and Future (Toronto: LexisNexis, 2014); Paul Daly, “The Scope and Meaning of Reasonableness Review” (2015) 52 Alberta Law Review 799.
[35] Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339 at [59].
[36] Wilson v Atomic Energy Agency of Canada [2016] 1 SCR 770 at [22] [Wilson].
[37] Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5 at [18] [Catalyst Paper].
[38] It must be noted that the Supreme Court of Canada has resolutely avoided taking a position on the attempts of lower courts and commentators to firm up the analytical structure of reasonableness review. But see Wilson, where Abella J expressed some openness towards the possibility of applying reasonableness review in all circumstances; four other judges expressed their appreciation for her “efforts to stimulate a discussion on how to clarify or simplify our standard of review jurisprudence to better promote certainty and predictability” (at [70]).
[39] Dunsmuir at [27].
[40] Loyola High School v Quebec (Attorney General) 2015 SCC 12 at [38].
[41] Canada (Attorney General) v Canadian Human Rights Commission 2013 FCA 75 at [16] and [18].
[42] Canada (Attorney General) v Igloo Vikski Inc 2016 SCC 38 at [58], per Côté J, dissenting.
[43] Catalyst Paper at [25].
[44] Canada (Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha 2014 FCA 56 at [91] [Farwaha].
[45] See e.g. Re:Sound v Canadian Association of Broadcasters 2017 FCA 138 at [40].
[46] Id. See also Forest Ethics Advocacy Association v Canada (National Energy Board) 2014 FCA 245 at [69].
[47] Canada v Kabul Farms Inc 2016 FCA 143 at [24].
[48] Delios v Canada (Attorney General) 2015 FCA 117 at [27].
[49] Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law: Recent Cases on Standard of Review and Reasonableness” (2016) 62 McGill Law Journal 527 at 558. See also Workplace Health, Safety and Compensation Commission v Allen 2014 NLCA 42 at [41], explaining (in the context of an interpretation of law) that the applicant has an “onus in the present case to point to some reason, whether stemming from the facts or the words of the statute to question the reasonableness” of the decision; and Delios at [21-27].
[1] Carol Harlow and Richard Rawlings, Law and Administration, 3rd ed. (Cambridge: Cambridge University Press, 2009) at 677, Fig. 15.5 “Spaghetti junction”.
[2] R (Nicklinson) v Ministry of Justice [2015] AC 657 at [296], per Lord Reed.
[3] R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131.
This content has been updated on October 31, 2017 at 14:53.