The Doctrine of Unreasonableness - Essay Example

? There is no point in having a doctrine of administrative unreasonableness Theoretical underpinnings of the doctrine of unreasonableness The issue at hand is to determine whether the doctrine of unreasonableness can be considered a legitimate ground for a review of a judicial decision. But prior to that one needs to understand what exactly the doctrine of unreasonableness purports to stipulate. An administrative action can be deemed to be unreasonable if it is capricious or arbitrary, manifestly unjust, made in bad faith, or oppressive. It might be further added that an administrative decision would be deemed as unreasonable if it is so unreasonable that no reasonable authority could have ever reached it.1 This sounds very pompous but in effect is nothing but a tautology that would make a lawyer feel proud of their linguistic expertise without clarifying one little bit the issue at hand. To begin with one must differentiate between unreasonableness and other grounds for review of an administrative decision. The other grounds for a review of an administrative decision are ‘irrelevant considerations’ and ‘improper purposes’. These two grounds are mainly concerned with administrative process and evaluate whether the administrative authority made specific mistakes in the course of the administrative process by considering irrelevant issues or by directing its attention to an improper purpose. But the review conducted on grounds of ‘unreasonableness’ does not examine the administrative process; it is more concerned with the end result. This means the court need not enquire whether any specific ‘mistake’ has occurred, instead it would deliberate on the reasonableness of the administrative decision. Thus, it transpires that according to the doctrine of unreasonableness a court might investigate into the reasonableness or otherwise of an administrative decision while not passing any comments or judgment on the propriety of the administrative procedures adhered to by the relevant authorities while they arrived at such a decision. Thus the doctrine of unreasonableness provides enough leverage to court of law to rectify administrative action that is prima facie wrong on undesirable from the larger perspective of social ethics. However, this doctrine is so intrinsically vague as it leaves the final decision of unreasonableness to the sensibilities of the judges without any support of undeniable evidence that courts are usually very cautious in employing this ground of review and will only in rarest of rare occasions strike down an administrative decision as unreasonable. Therefore, though the doctrine of unreasonableness is a very potent weapon in the hands of judiciary to correct the wrongs done by the administrative arm of the government, its rare use perhaps blunts a good deal of its potentiality. The issue should be examined from another perspective to get a better idea about its effectiveness in a civil society. Let us assume that a decision will never be unreasonable unless some mistake has occurred in the administrative process. If that be so, unreasonableness is not a defect by itself but a symptom of another defect. Such an apprehension may lead the court to issue an order of nisi (as it is done in Israel) or grant leave for a judicial review (as it is done in England). Subsequently, as the review progresses, it may be unearthed that the decision is flawed with irrelevant considerations or improper purposes. If that be the case, the administrative decision can be overturned on those grounds and not on grounds of unreasonableness. It might also be that the review would lead to the conclusion that the administrative decision is based on relevant considerations and proper purposes and therefore cannot be flawed on these grounds but it might come to light that the authority had given unnecessary importance and undue weight to an otherwise relevant consideration. It could, for instance, be that the authority has converted a marginally relevant consideration into a central and decisive issue. Though it cannot be denied that the administrative authority should and is vested with the power of discretion and is free to ascribe any weight to any consideration that it deems fit, the Supreme Court of Israel has held that such discretion is not without limits and each case will have its associated range of reasonableness. If the administrative authority has exercised their discretion within such limits the court would not interfere in the decision even if it disagrees with it but if in the opinion of the court such limits have been transgressed, the decision of thee administrative authority could be negated on grounds of unreasonableness. This approach to unreasonableness focuses on the administrative process rather than the outcome.2 A case in point is Ganor v. Attorney General3 where Supreme Court of Israel reviewed the decision of the Attorney General of not bringing criminal charges against officers of major banks of Israel. These officers were charged with illegally manipulating bank shares resulting in a near crash in Israeli stock exchange. The Attorney General took the stance that it was not only the bank officers but some public servants too that were party to this manipulation and therefore the entire blame could not put solely on these bankers. Further, the bankers had already been terminated from their jobs and a lot of time has elapsed since the collapse of the stock exchange so, not much purpose would be served by further prosecuting these ex-bankers. While the Supreme Court agreed that all these are relevant considerations it still felt that the Attorney General has attributed too much weight to these considerations while giving little weight to other considerations as the severity of the offence and the consequences that Israeli economy had to face due to the illegal activities of these bankers. The court also felt that the Attorney General had not given enough consideration that exemplary punishment was required in this instance to deter future potential attempts at such illegal manipulation of share prices. Thus, the court felt that the decision of the Attorney General is unreasonable and therefore invalid. Restrictive approach of courts While the Israeli courts have been rather liberal in applying the doctrine of unreasonableness, Irish courts have remained comparatively conservative in applying this doctrine. According to these courts an administrative decision would be considered unreasonable only if it satisfies the conditions laid down in The State (Keegan) v Stardust Victims Compensation Tribunal4 which concludes that for a review a decision has to be so unreasonable that no reasonable person would ever come to such a decision. In addition to such a rigid stricture, Irish courts have also routinely applied the yardstick that has been laid down in O’Keeffe v An Bord Pleanala5 which states that for a review it has to be conclusively proved that the decision maker has completely rejected the basic tenets of simple reasoning and did not exhibit any trace of common sense while arriving at such a decision. Thus, courts in Ireland will not overturn a decision by an administrative authority if they disagree with the decision, so much so that even if they feel that, given the available evidences and arguments of lawyers in this regard, they would have come to a different conclusion if the stringent test of unreasonableness can be proved beyond all reasonable doubt. Irish courts have set for themselves a very high bar that hardly any case would ever be able to cross so that it can merit a review on the grounds of unreasonableness. The inability or unwillingness of Irish courts to invoke the doctrine of unreasonableness was made more apparent in Aer Rianta cpt v Commissioner for Aviation Regulation6 where O’Sullivan J opined that court would not intervene or interfere with an administrative decision simply because it is wrong or even hopelessly wrong. The court would intervene only if it can be proved beyond doubt that the decision maker had gone completely mad while taking this decision. Now, that is perhaps impossible to prove and a decision maker need not be mad to take an unreasonable decision. It could be the underlying biases or wrong interpretation of the situation at hand that might be the reason why an unreasonable decision is taken; this has got no relation whatsoever with the mental balance of the decision maker. But Irish courts are insistent that it must be proved that the decision maker had gone completely insane while taking a decision before such a decision can be reviewed on grounds of unreasonableness. Thus, it seems that though Irish courts can invoke the doctrine of unreasonableness for reviewing administrative decisions, their unwillingness to do so unless certain very strict conditions are fulfilled renders this provision practically meaningless and ineffective in practice even though it retains a very eminent position in theory. Has there been a change in the attitude of courts? Though doctrine of unreasonableness has been rendered ineffective by Irish courts by raising the bar too high, they are not completely impervious to the fact that there might be administrative actions that might not be termed as totally fair and unbiased. Lord Cooke postulated that the European doctrine of ‘proportionality’ would probably lead to same conclusions as the doctrine of unreasonableness but whether the conclusions would exactly identical or not need to be closely examined. In R v Ministry of Defence; Exp. Smith7 the Court of Appeal postulated two tenets of redefining the doctrine of unreasonableness in the light of human rights and they marked a significant departure from the earlier lack of clarity and rigidity of applicability of this doctrine as exhibited time to time by courts. Those two postulates were; an administrative decision could be considered unreasonable if the court feels that the administrative decision did not reflect any of the probable decisions that could be reasonably expected from a rational decision maker, and, the decision could be considered unreasonable if some other tenet of human rights becomes more relevant and overbearing than the exact details of the case. In this case though the court was not quite ready to accept that the administrative decision was reasonable, it had to, somewhat unwillingly, declare that the administrative decision did not qualify to be unreasonable because the policy of the administration in this regard was also supported by the Parliament. This also brings us to the concept of anxious scrutiny. The basic idea behind the concept of anxious scrutiny is that courts of law should do an anxious scrutiny of administrative decisions in matters related to human rights. The anxious scrutiny can thus be considered as another means in which the doctrine of unreasonableness makes an entry in new avatar. However, this new concept did not have a smooth entry in Irish courts as judges raised pointed queries about how they would in their learned wisdom and also from the point of law be able to identify and differentiate between ‘scrutiny’, ‘careful scrutiny’, ‘heightened scrutiny’ or ‘anxious scrutiny’. The more pointed query was whether the threshold of unreasonableness be lowered in the instance of ‘anxious scrutiny’ especially if it related to human rights.8 The other concept that is gradually gaining an acceptance in courts of law is proportionality or balance of interests. Administrative decisions are usually the product of a balance of different interests. If the balance is patently wrong, the decision may be considered unreasonable, and invalidated as such. Indeed proportionality or balance of interests has lately become such a popular ground of review that it threatens to overshadow unreasonableness. Like unreasonableness, the balance of interests relates to the weight attributed by the administrative authority to relevant considerations. Unreasonableness examines the weights given to a specific consideration. Balance of interests, on the other hand, examines the relative weight given to various considerations, and thus better reflects the reality of the decision-making process, which necessarily involves the balancing of different interests. Usually, the weight to be given to a specific consideration in a case depends on the nature of the other considerations involved in that case. The decision ultimately depends on the relative weight given to all relevant considerations. Balance of interests is thus a more sophisticated and realistic version of unreasonableness. In some circumstances, the court has gone beyond merely declaring that the balance of interests in a given case is wrong, and has specified a criterion to be applied by the authority in balancing the conflicting interests in a given category of cases. Such a criterion may help to establish the proper relationship between the relevant interests in those cases. The main area in which the court has specified such a criterion is the field of human rights. For instance, in cases involving the restriction of freedom of speech or freedom of demonstration on the ground of public order or national security, the Supreme Court has repeatedly held that the freedom concerned, be it freedom of speech or another freedom, is a relevant consideration for the authority. The authority must weigh this consideration against other relevant considerations. Moreover, the Court has stated that the proper balance of free speech and the other considerations in this area allows for restriction of free speech only if there exists 'near certainty' that 'substantial damage' will result to public order or national security.9 A change in the attitude of courts is surely a good sign and though the doctrine of unreasonableness is rendered practically ineffective due to the high threshold fixed by courts for it to applicable, the concepts of anxious scrutiny and proportionality sure are bringing in winds of change. What is Court’s attitude in Meadows case? In Meadows -v- Minister for Justice Equality and Law Reform10 Irish Supreme Court had to deal with several issues that related to human rights, refugee and other issues. The appellant is a Nigerian national who had arrived in Ireland at the age of 17 and had applied for refugee status for permanent residence in the country. However, her appeal was rejected and the Minister decided to deport her. She sought a judicial review of the Minister’s decision and sought that the deportation order be quashed. Such a quashing of an administrative order is possible only if it can be proved that the said order has been unreasonable. This case generated attention since it was another instance when it could be observed whether Irish Supreme Court was willing to lower the bar for unreasonableness especially if the case concerned human rights of an individual. The High Court ruled that the appellant has been unable to prove unreasonableness in the administrative order and hence her appeal was quashed. She sought permission to appeal in the Supreme Court and High Court granted her that appeal. It is worthwhile to mention that High Court grants permission only to those cases that in its opinion are of exceptional public importance. The point of law that the Supreme Court was supposed to pass its judgment on was whether it is correct to apply the standards set out in O’Keeffe v An Bord Pleanala in reviewing an administrative decision that affects constitutional and fundamental rights of an individual. The appellant however could not prove beyond doubt that she would be persecuted if deported to Nigeria and the claims of female genital circumcision that would be forced on the appellant when she returned to Nigeria were also not well founded from the facts of the case and from the findings of the Refugee Tribunal. Thus the attempt by the appellant to project this case as a trial on constitutional and fundamental rights of an individual was ill founded and quite rightly the Supreme Court rejected her appeal. In this particular instance the test of unreasonableness based on the standards set out in O’Keeffe case was a right decision by the Supreme Court. It did not get drawn into the nuances of whether the administrative order impinged on an individual’s fundamental and constitutional right as the appellant could not prove beyond doubt that she indeed would be forcibly married off or would be subject to forcible female genital circumcision. Therefore, any feeling that the Irish Supreme Court has not yet been able to lower the bars for deciding unreasonableness of an administrative decision as it did not quash the deportation order of Meadows in spite of the highly emotive nature of her appeal is rather unfounded as this case did not have enough merit to be judged for violation of constitutional and fundamental rights of an individual. Read More