To ask whether administrative law is working is legitimate, but avoid heavy-handed interventionby Paul Daly / September 28, 2020 / Leave a comment
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…