Abolishing legal unreasonableness is not undemocratic – it’s just absurd

Does the government think so little of its ability to make sound administrative decisions that it wants a license to make absurd or irrational ones? The answer, it seems, is yes.

“Legal unreasonableness” is a well-established ground for judicial review of administrative action in many countries. It stems from a decision of the English Court of Appeal in November 1947 which held that it is unlawful for a public body to make an administrative decision that is so unreasonable that no reasonable decision-maker could have made it. Such a decision is unlawful because a law authorizing a public body to make an administrative decision assumes that the administrator will not exercise the power absurdly or irrationally. Legal unreasonableness necessarily involves meeting a very high standard for a decision of a public body to be set aside by a court. To be set aside, an administrative decision must be manifestly unreasonable. It is not enough that a judge would prefer a different decision. Consequently, in practical terms, administrative decisions are rarely overturned by courts in Israel and other countries on the basis of legal unreasonableness. Nevertheless, the availability of this ground of judicial review is important to ensure good public administration and sound administrative decision-making. Not only does legal unreasonableness result in overturning manifestly unreasonable decisions in the rare cases where the principle is successfully applied, but the fact that it could be applied assists to ensure that in most cases public bodies make sound and rational administrative decisions.

I agree with the Justice Minister and the Chair of the Knesset Constitution, Law and Justice Committee that the Israeli courts appear to have taken the concept of legal unreasonableness well beyond what the English Court of Appeal envisaged and that the principle requires reform in this country. In particular, judges should not be empowered to decide whether political decisions (such as appointing a government minister) or security decisions (such as establishing a checkpoint to protect citizens from terrorism) are legally unreasonable. Political and security decisions are not administrative decisions properly subject to judicial review of administrative action. English or Australian courts, for example, would never rule on whether political or security decisions are legally unreasonable. Furthermore, legal unreasonableness should be defined by the Knesset as making an objectively absurd or irrational decision. This would avoid the perception held by some in Israel that the principle of legal unreasonableness enables judges to prefer one policy outcome over another or to apply their own value judgements in determining whether an administrative decision is legally unreasonable.

But the draft unreasonableness law currently being pushed through the Knesset doesn’t just exclude political and security decisions, and doesn’t define legal unreasonableness. Rather, it simply abolishes judicial review of administrative action on the ground of legal unreasonableness. This reform, therefore, empowers the government and other public officials to make objectively absurd or irrational administrative decisions. Both directly and indirectly, this reform will result in poor public administration and potentially harm every citizen who is affected by any administrative decision. The problem isn’t that abolishing legal unreasonableness is undemocratic – it’s just absurd.