The inexorable rise of judicial review

To ask whether administrative law is working is legitimate, but avoid heavy-handed intervention

September 28, 2020
The UK Supreme Court. Photo: Aaron Chown/PA Wire/PA Images
The UK Supreme Court. Photo: Aaron Chown/PA Wire/PA Images

There is no doubt that judicial review of decisions by government bodies has increased significantly in breadth and depth over recent decades. Even leaving the politics of our current, extraordinary moment to one side, the establishment by the UK government of an Independent Review of Administrative Law is not altogether surprising.

Already in the mid-1980s Lord Diplock, one of the preeminent judges of the late 20th century, commented that the transformation of administrative law was one of the most significant developments of his lifetime. Since then, judges have developed more means by which to closely scrutinise the decisions of central government and other public bodies. There are ever-more grounds of review—error of fact, flouting legitimate expectations, breach of the duty of consultation—and they apply to any exercise of public power, broadly construed. And there are a great number of claims for judicial review: thousands every year.

The review, therefore, is an altogether legitimate undertaking, even if one might fear the underlying motivations of its progenitors. But the reviewers have an unenviable task, as the reasons for the expansion of administrative law are difficult to identify with any precision.

“Human rights” are often invoked as a driver of judicial review. Certainly, some of the cases modern courts address, in areas such as immigration and housing, often have a distinctly rights-based hue, with significant—sometimes existential—interests at stake. We are a long way from the battles about town and country planning and rent controls which defined administrative law after the Second World War. Immigration matters, moreover, account for the bulk of the increase since the 1980s (and unless the borders are hermetically sealed, that flow is unlikely to subside).

We should be cautious, though, about attributing all the ills of administrative law to human rights. For one thing, the breadth and depth of administrative law were already increasing before the Human Rights Act 1998 and even before immigration matters swelled courts’ dockets. The trilogy of 1960s cases widely understood to have prompted judicial reform of administrative law—Ridge, Padfield and Anisminic—concerned police employment, milk pricing and compensation for overseas expropriation during the Suez crisis respectively, not exactly fertile ground for the assertion of human rights.

For another thing, the leading comparative academic study of the growth of administrative law—Janina Boughey’s book The Newest Despotism—has revealed that Canada, where human rights are constitutionally entrenched, and Australia, where judicial enforcement of human rights is much more restrained, have advanced on similar tracks despite their very different human rights cultures.

I suggest that the reasons for the rapid changes in administrative law are more mundane and rather technical.

We should begin by noting that the period of development since the middle of the 20th century has been marked by procedural reforms with little political salience but great practical significance. To begin with, countries around the common law world (including Australia, Canada, England, Ireland and New Zealand) abolished the so-called “prerogative writs,” with impressive Latin names such as certiorari and mandamus. In time-honoured common law fashion these writs, first developed in the 16th century by the King’s courts in London to control local tribunals, were retrofitted to the rising administrative state. But the retrofit was uneasy, making procedural reforms necessary. By sweeping away the technicalities associated with the ancient writs, these reforms had the unintended effect of permitting judges to develop a body of general principles of administrative law. It is unsurprising that these general principles have since their untethering from the prerogative writs developed such impressive scope.

Moreover, since the 1980s, the English courts have imposed a “duty of candour” on ministers and public bodies defending judicial review claims. Long before the Human Rights Act, judges were insisting that the government must place its cards face up on the table in administrative law cases. With the decline of the potency of Crown privilege—which allowed the government to refuse to disclose sensitive information—occasioned by another 1960s classic, Conway v Rimmer, the result was that there was more for judges to get the teeth of the new general principles of administrative law into.

Allied to these developments, ministers and public bodies have generated more and more detailed reasons for their decisions. In part, the courts have required reasons in a wider range of cases than heretofore but mostly parliament has imposed thoroughgoing reason-giving requirements (sometimes pursuant to EU law obligations). In addition, modern technology, with its drop-down menus and templates, has facilitated the production of detailed reasons for all sorts of decision great and small.

The upshot is that we now have a body of general principles of administrative law which judges can apply to ever-more detailed decisions. The increased intrusiveness of administrative law—on view not just in the UK but in Australia, Canada, Ireland and New Zealand—may be largely attributable to technical and procedural developments.

For the purposes of the review, this technical and procedural toothpaste would be very difficult to put back in the tube. Tackling the duty of candour and Crown privilege might go some way to checking the growth of administrative law but doing so would be controversial—“what is the government trying to hide?”—and hardly a guarantee of success given the complex background described above.

And this assumes that the toothpaste should be put back in the tube. From my perspective, the developments in administrative law have mostly been salutary. The courts have struck a delicate balance between the protection of individual interests, effective and efficient public administration, statutory constraints imposed by parliament and the need to preserve a measure of autonomy for ministers and public bodies in their areas of competence. Judicial review is a backstop, not a “frontstop,” and notwithstanding some high-profile interventions, the judges overwhelmingly leave policy matters in the hands of elected officials. Indeed, given the fact that damages are not available as a remedy in administrative law, which reduces the incentives to bring a claim in the first place, it is perfectly plausible that there is too little judicial review, not too much.

If the reviewers decide nonetheless to tackle the increased breadth and depth of administrative law, their reforms are likely to be mostly symbolic. Contemporary administrative law is a common law creation, given life by judges and lawyers. They will be loath to give up this creative role in elaborating the general principles. Codification efforts in Australia, Canada and South Africa have not stemmed judicial creativity in administrative law. Indeed, in Australia legislative attempts to restrict judicial review of immigration decisions simply spurred more judicial creativity! In some areas, codification will increase uncertainty (thus prompting litigation), as has been true of Canadian statutory provisions on the issue of which types of decision are amenable to judicial review.

This is not to say that the review is, in any way, an illegitimate undertaking. Those who, like me, are supportive of the role the courts have played in elaborating general principles of administrative law should have nothing to fear from an objective study. It may even be that at the margins the review identifies areas where judges have indeed been too aggressive in imposing new requirements on ministers and other public bodies. Even here, however, the reviewers would be well advised to make their point and move on: if there are well-founded concerns about legal doctrines hampering effective and efficient public administration, the judges will no doubt adapt the law accordingly. Heavy-handed legislative intervention is likely to serve a symbolic purpose at best and, at worst, provoke needless litigation.