(2013) Current Legal Problems 1
38 Pages Posted: 27 Jul 2013
Date Written: July 26, 2013
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: 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