The Nature of Reasonableness Review

(2013) Current Legal Problems 1

Oxford Legal Studies Research Paper No. 78/2013

38 Pages Posted: 27 Jul 2013  

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: July 26, 2013

Abstract

While there is a voluminous literature on proportionality, there is considerably less on reasonableness as a test for judicial review of discretionary determinations. This paper examines the nature of reasonableness as a test for judicial review of discretion in UK law. The paper is not predicated on the assumption that reasonableness always bears the same meaning whenever it is used in constitutional and administrative law in any legal system.

Subject to this caveat, it is argued that reasonableness as a test for judicial review of discretion in UK law is concerned with review of the weight and balance accorded by the primary decision-maker to factors that have been or can be deemed relevant in pursuit of a prima facie allowable purpose; that this is borne out through examination of the case law; that insofar as incommensurability is perceived to be a problem in the context of proportionality then this is also true in relation to reasonableness review; that the incommensurability problem is less problematic than is commonly perceived; and that a proper appreciation of reasonableness review has implications for the debate concerning reasonableness and proportionality as tests for judicial review in administrative law.

Keywords: administrative law, discretion, reasonableness, proportionality, incommensurability, balance

Suggested Citation

Craig, Paul P., The Nature of Reasonableness Review (July 26, 2013). (2013) Current Legal Problems 1; Oxford Legal Studies Research Paper No. 78/2013. Available at SSRN: https://ssrn.com/abstract=2298612

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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