Reconstructing Judicial Review

Sarah Nason

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509904631
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book offers a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, as opposed to being concerned primarily with ultra vires or common law constitutionalism. It is developed both from examining the functions and values that ought to be served by judicial review, and from analysis of empirical 'social' facts about judicial review primarily as experienced in the Administrative Court. Based on ground-up case law analysis it constructs a new taxonomy on the grounds of judicial review: mistake, procedural impropriety, ordinary common law statutory interpretation, discretionary impropriety, relevant/irrelevant considerations, breach of an ECHR protected right or equality duty, and constitutional allocation of powers, constitutional rights, or other complex constitutional principles. It explains each of these grounds, what academic and judicial support there might be for them outside case law analysis, and their similarities and differences when viewed against popular existing taxonomies. It concludes that Administrative Court judges are engaged in ordinary common law statutory interpretation in approximately half of all cases, and that where discretionary judgement is involved on the part of the initial decision-maker, judges do indeed consider their task to be one of determining whether the challenged decision was justified by reasoning of adequate quality. It finds that judges apply ordinary common law principles of statutory interpretation with historical pedigrees, including assessing the initial decision-maker's reasoning with reference to statutory purpose, and sifting relevant from irrelevant considerations, including moral considerations. The result is a ground-breaking reassessment of the grounds of judicial review in England and Wales and the practice of the Administrative Court.

1

Introduction: Reconstructing Judicial Review

I.The Reformation of Administrative Law and Judicial Review

Judicial review is a constitutionally contentious procedure. From 2012 onwards the Coalition Government then in power mounted what has been described as a major attack on judicial review and with it the rule of law. It proposed a now infamous set of reforms, some of which have since been enacted, each designed to limit access to judicial review.¹ The reforms can be seen, at least in large part, as a politically motivated response to the apparent reformation² or constitutionalisation³ of administrative law and judicial review.

The BBC’s history website describes the fifteenth-century religious Reformation⁴ as, ‘one of those thing’s that everybody’s heard about but nobody really understands’.⁵ Perhaps the same could be said of the reformation of administrative law.⁶ It is associated with the evolution of the UK constitution from one marked by parliamentary sovereignty to a more balanced system based on the values of liberalism and democracy, and the twin or bipolar sovereignties of Parliament and the courts.⁷ This constitutionalisation sits alongside a growing culture of justification under which public power must be exercised in accordance with some coherently reasoned justification.⁸ The culture is one of open governance and the centrality of rule of law values including clarity, consistency and openness. It is also aligned with the apparent growth of rights-based reasoning and associated concepts of proportionality and balancing.⁹

Judicial review in the Administrative Court is important to constitutionalisation and the culture of justification as it provides a route for vindicating constitutional values and rights that some see as prior to Parliament’s sovereignty.¹⁰ However, there are empirical and normative reasons to be sceptical about the true extent of the reformation, constitutionalisation and culture of justification and the role of the Administrative Court within it.

Empirically, the reformation, constitutionalisation and culture of justification include a perception of judicial review expanding in terms of caseloads, substantive legal doctrine and practical impact; for reformationists this is a good thing. Conversely it has been argued that since the number of Applications for Judicial Review (AJRs)¹¹ has expanded alongside anecdotes of tactical litigation and so-called left-wing pressure group activity, and since the majority of claims do not result in a win for the claimant at final hearing, there must be a large-scale abuse of the system.¹²

The proportion of Administrative Court claims that can be categorised as constitutional in some way has increased. This can include claims involving the exposition of public law legal principles in light of constitutional values and rights, claims with wider impacts on the public good, and claims that address the balance of powers between institutions of state. Applications classed as constitutionally important in these ways, by litigants if not always by judges, form an increasingly large proportion of claims issued in the Administrative Court; but this is not sufficient in itself to support the reformation of judicial review. Approximately half of all Administrative Court AJRs can be said to turn on their own facts,¹³ are relatively non-complex, and concern individual grievances against ‘street-level bureaucratic’¹⁴ decision-makers.

Access to judicial review also remains patchy, despite reforms to ‘regionalise’¹⁵ the Administrative Court and improve local access to judicial review, it is still the case that ‘judicial review in England and Wales has a secret dimension; the expansion of parameters runs alongside a large-scale exclusion of people’.¹⁶

Whilst the reformation may not provide a complete fit with social practice there is moral value to the view that public power requires justification, and that the greater the impact on individual rights the more compelling this justification must be. However, this moral value is undermined if justification is equated exclusively with efficiency, for then whatever it takes for a public body to achieve its stated aims can be capable of justification.¹⁷ The reformation and culture of justification may then be neither empirically accurate nor especially morally attractive.

II.Interpretations of Judicial Review

Justification can also fit with an interpretation of judicial review under which the courts are concerned only to ensure that power is exercised in good faith and for purposes within the decision-maker’s jurisdiction. A jurisdictional error can be classed as rendering a decision incapable of justification. However, it is generally agreed that this jurisdictional or strict ultra vires interpretation is not able to explain much of the social practice of judicial review litigation.¹⁸

There is a broader (modified) interpretation of ultra vires under which vires is equated to constitutional authority and any exercise of public power that offends liberal-democratic constitutional values may be beyond the decision-maker’s jurisdiction.¹⁹ On this account Parliament’s powers are granted and circumscribed by values.

In general, so-called common law constitutionalism fits better with the reformation and culture of justification. Modified ultra vires and common law constitutionalism accept a special role for judges in articulating grounds of review in accordance with rule of law values. However, on most interpretations of ultra vires this role has to be linked back to a social rule under which Parliament has accepted some delegation of power to the judiciary; and what Parliament delegates it can also take away.

On the other hand some common law constitutionalists argue that judicial power stems from the common law’s authority as a site of community justice developing over time to express societal values. The common law may then have a greater claim to democratic legitimacy than parliamentary politics.²⁰ This interpretation does not fit well given evidence that significant sections of the population of England and Wales have difficulty accessing and navigating judicial review and that the procedure is not addressing the broader needs of local communities.

Against common law constitutionalists and those who support modified ultra vires is an interpretation I shall call ‘political constitutionalism’.²¹ Political constitutionalists argue that judicial review can be undemocratic because it allows moral decisions about the proper extent and exercise of public power, over which reasonable people disagree, to be taken by an unelected ‘juristocracy’.²² It is argued that the judicial role should be limited to literal interpretation of statute, strict ultra vires, and protecting the right to vote. Outside resolving non-complex individual grievances through literal statutory interpretation, the task of supervising the administrative state should be reserved to Parliament. However, there is a sense in which political constitutionalists may be attacking a straw man as there is limited evidence of activist human rights-based reasoning, at least in Administrative Court judicial review, or of explicit moves towards stronger form constitutional review (where judges purport to strike down primary legislation as unconstitutional).

In this book I purport to test a number of conflicting interpretations of judicial review, including the reformation, its nemesis political constitutionalism, and more traditional accounts of ultra vires, against a range of empirical evidence and moral argument. I reconstruct judicial review from the ground up by analysing social practice in the Administrative Court.²³ My approach is interpretive, laying principle over practice to make the best moral sense of the purposes served by judicial review litigation.

III.The Dual Nature of Law and The Methodology of This Study: Constructive Interpretation

In chapter two I explain why it is important that our understanding of judicial review is anchored in social practice and I challenge the popular view that theoretical studies ought to be largely separated from empirical research.²⁴ One of my concerns is that such separation can lead to the production of legal theories that are based on misconceptions about day-to-day experiences of law, and to social research that is underpinned by partisan commitments to legal and political theories (positivism and idealism especially)²⁵ that are not made clear and that are therefore not capable of being properly analysed.

My particular concern with some doctrines of judicial review is that they prioritise descriptive conceptual analysis over normative methods that directly address the contested nature of relevant values. Concepts function as mediating devices between the real world and our understanding of it by constituting an attempt to render explicit what is already implicit in our common understanding of social practice.²⁶ Descriptive concepts purport to achieve this without any reference to values (moral or otherwise). Whilst supposedly descriptive concepts (in the form of particular doctrines including jurisdiction, ultra vires and more recently proportionality) may be useful in helping to structure judicial and administrative decision-making there is little empirical evidence to suggest that doctrines are regularly used or relied on in this way by judges and administrators. One extreme response to this is to reject conceptual doctrines entirely. A more moderate proposition is that such doctrines may provide useful tools in the judicial and administrative armoury, but that they provide only a partial aid to judgment and their usefulness should remain subject to continuing critical analysis. I take this latter more moderate view.

In any event the process of conceptual analysis is based on intuitions of the mind and it may be that concepts have no existence independent of human intuition; the very process of conceptualising alters the subject matter. On this basis those who champion apparently value-free, generalisable conceptual tests in judicial review litigation have no greater claim to supply accurate conclusions than those who advocate reasoning based on interpreting relevant values in context.

Alongside conceptual analysis, duelling pairs are also characteristic of legal theory and doctrines of judicial review. Many of these dualisms, such as fact/law, merits/legality, correctness/reasonableness and jurisdictional/non-jurisdictional errors, have parallels with basic philosophical dualisms²⁷ in that it may be impossible to achieve resolution (or reconciliation) of these dichotomies in any particular context unless we adopt a methodology going beyond those of descriptive conceptual analysis and social-scientific empiricism.

In this book I develop a method of constructive interpretation that combines the traditional tools of legal theory with those of empirical legal research. I argue that we should not rely on categories such as fact/law, jurisdictional/non-jurisdictional, correct/reasonable, proportionate/disproportionate when they are based on generalisable formulae that exist independent of sensory experience and contested interpretations of value. Instead we can contrive or construct categories depending on our interests and ingenuity and what we find useful in a particular context. Categories are useful, but only when they continue to reflect social practice and moral values and when they are capable of being applied flexibly.

I adopt a three-stage methodology for reconstructing judicial review.²⁸ The first is to outline ‘manifest’ interpretations of judicial review—these are interpretations based on informed intuition that form part of the social practice if anything does. The second stage is to develop an ‘operative’ interpretation using empirical methods, including an assessment of which manifest theory fits best with the operative interpretation. The final stage is to develop a ‘target’ inter...

Table of contents

• Cover
• Title Page
• Contents
• 1. Introduction: Reconstructing Judicial Review
• 2. The Dual Nature of Law and the Methodology of this Study: Constructive Interpretation
• 3. Judicial Review and Values
• 4. An Operative Interpretation of Judicial Review: Social Practice and the Administrative Court’s Caseload
• 5. An Operative Interpretation of Judicial Review: Community Justice
• 6. An Operative Taxonomy of Grounds of Review: Part One
• 7. An Operative Taxonomy of Grounds of Review: Part Two
• 8. A Target Interpretation of Judicial Review and Judicial Rationality
• 9. Judicial Review for the Advancement of Justice and Good Governance
• Bibliography
• Index
• Copyright Page