Reconstructing Judicial Review

In her just published book, Reconstructing Judicial Review, Sarah Nason (Bangor University) uses legal theory and empirical research to explore the extent to which the nature of judicial review has changed since 2007. Here she discusses the research behind the book and sets out key features of judicial review as a tool for the advancement of justice and good governance.

By Sarah Nason

The ‘reformation’ of administrative law and judicial review?

Judicial review is one of the most constitutionally contentious aspects of administrative justice, not least following attacks from the Coalition Government, continued in the policy of the more recent administrations, and echoed in some quarters of the press. Much of the broader negative commentary, and in large part the practical reforms, can be seen as a politically motivated response to the apparent reformation or constitutionalisation of administrative law and judicial review.

The reformation is associated with the evolution of the UK constitution from one marked by explicit parliamentary supremacy to a more balanced system based on the values of liberalism and democracy and the twin or bi-polar sovereignties of Parliament and the courts. This sits alongside a growing culture of justification under which public power must be exercised in accordance with some coherently reasoned justification and the apparent growth of rights-based reasoning and associated concepts of proportionality and balancing.

In Reconstructing Judicial Review I use a method of constructive interpretation combining traditional tools of legal theory with those of empirical legal research to conclude that there are empirical and normative reasons to be skeptical about the extent of the reformation, constitutionalisation and culture of justification, and the role of the Administrative Court within it. This has important implications for administrative justice.

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 has been seen as a good thing. Conversely it has been argued that since the number of judicial review applications 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 substantive win for the claimant at final hearing, there must be a large-scale abuse of the system. Presently we can add to this mistrust of judges at the highest level by some sections of the mainstream media, and an occasional failure by government to explicitly defend the rule of law and the judges tasked with safeguarding it.

Previous research

Research has already shed light on the apparently explosive growth of judicial review and its merits. Varda Bondy and Maurice Sunkin have largely debunked the notion of any significant growth in civil (non-asylum and immigration) judicial review in the last few years. Whatever the empirical reality, the perception of expanding judicial review stubbornly persists, more recently alongside a distrust of those judges engaging in it.

Both Bondy and Sunkin, and Robert Thomas (the latter in relation specifically to asylum and immigration cases), have also challenged the ‘myth’ that most claimants are ‘unsuccessful’ and that much judicial review lacks merit. They do so by expanding the meaning of ‘success’ beyond just a substantive win for the claimant at final hearing, and by cataloging what proportion of claims (and potential claims) do not make it to final hearing, often because negotiations have led to resolution in favour of the claimant.

My research gives added weight to their findings; but further to this I question, in light of these empirical circumstances and the perennial debate over the constitutional basis for judicial review, what exactly is it that distinguishes judicial review in the Administrative Court in the current climate? This climate includes a relatively new statutory judicial review function for the Upper Tribunal and an increased desire by government to enumerate, sometimes by statute and sometimes by executive measures, specific and limited grounds on which public power may be challenged.

What is the role of the Administrative Court?

Empirically, the proportion of Administrative Court claims that can be characterised as constitutional in some way has increased over the years of my study (from roughly 2007 to 2015). This includes 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, have formed an increasingly large proportion of claims issued in the Administrative Court (a good 50% on my analysis) but this is not sufficient in itself to support the reformation of judicial review. Approximately half of all Administrative Court judicial review claims continue to turn on their own facts, are relatively non-complex, and concern individual grievances against ‘street-level bureaucratic’ decision-makers in particular subject areas – the daily bread of administrative justice. I argue that none of our existing theories of judicial review (alone) can provide a complete account of this seemingly janus-faced position where judicial review is split roughly down the middle between more overtly constitutionalised cases (fitting with the reformationist vision) and non-complex own fact cases that might actually fit better with a Victorian private rights account of judicial review, or with some forms of political constitutionalism.

Access to judicial review also remains patchy, despite reforms to ‘regionalise’ the Administrative Court; from an initial boost immediately following the reforms, the number (and proportion) of claims issued outside London has fallen and there is evidence to suggest that regional judicial review activity is even lower now than it was before the Administrative Court was de-centralised in 2009. It is still the case, as Harlow and Rawlings put it, that ‘judicial review in England and Wales has a secret dimension; the expansion of parameters runs alongside a large-scale exclusion of people’ (Law and Administration (CUP 2009) 669).

Justification and expanding doctrinal complexity

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 (or even primarily) with administrative efficiency, for then whatever it takes for a public body to achieve its stated aims can be capable of justification. It is also undermined by increasingly intricate doctrinal conceptual tests, especially in relation to proportionality and deference. On the one hand, such tests risk becoming a proxy for reasoning rather than an aid to it, and on the other there is, I believe, some truth to the charge of excessive legalism (formalism) in an area where the broader values of good administration must be properly accounted for.

In Reconstructing Judicial Review I question whether the expansion of parameters (in terms of the substantive legal doctrines relied on in the Administrative Court) really has been as extensive as commonly perceived.

Judicial review for the advancement of justice and good governance

From seven years of Administrative Court data and a sample of nearly 500 substantive Administrative Court judgments I develop a reconstructed account of judicial review concluding that a revitalised version of the 18^th-century notion of judicial review for the advancement of justice and good governance both fits best with and justifies current practice. Key conclusions include:

• There are distinctions between individual (street-level) or own-fact claims and higher-level constitutional claims, and between topic specialisation (based on substantive areas of administrative law such as planning, education or police and prisons) and constitutional specialisation. It is these (admittedly non-exhaustive) distinctions that characterise social practice (including from evidence about how legal practice is organised and how judges are deployed) and which should therefore characterise conceptions of judicial review and approaches to reforming its procedures.

• There are six operative headings under which grounds of review fall: mistake, procedural impropriety, ordinary common law statutory interpretation, relevant/irrelevant considerations (otherwise known as discretionary impropriety or lack of justification), HRA 1998 and Equality Act claims, and claims of wider public importance and/or constitutional principle. This is a more fitting taxonomy than the traditional approach (illegality, irrationality, procedural impropriety) and modern tripartite plus approaches adding legality, proportionality and legitimate expectations to the traditional classification.

• Sir John Laws has put it that public law is based on logic, precedent, consequences and ideals (‘Judicial review and the Meaning of Law’ in C. Forsyth (ed) Judicial review and the Constitution (Hart 2000)). Human beings do indeed strive for ideals, but the standards which guide our striving must be accessible and improvable. I promote an account of rationality that utilises formal and non-formal reasoning, observation, creativity and systematic critical appraisal, anchored in an understanding of balance as ‘situation sense’ including practical knowledge as well as technical knowledge, and marked by the importance of moral judgement. This constructivist account of rationality is deployed not only to develop my theory of judicial review, but also to characterise the method of judicial reasoning I endorse. We can strive towards right answers in balancing or reconciling competing interpretations of values, including the parties’ competing interpretations of the value of justice in individual claims. Success in legal theory, judicial reasoning or in litigation is not consequent upon conclusively establishing these right answers, but rather on reaching an acceptable counterpoint solution in all the circumstances of the case. Judicial review for the advancement of justice and good governance is sufficiently abstract to acknowledge the central role of the individual (individualised administrative justice) without being vulnerable to the charge that it prioritises liberal individualism at the expense of other valid (and potentially more collective) values. This is especially important when working with seemingly conflicting legal and administrative values.

• Judicial review performs a range of purposes, all of which can be harmonised under one pluralistic theory anchored in multiple values, extending from rule of law values (i.e., certainty, consistency and impartiality) to broader political values of democracy, equality and liberty, to more administratively flavoured values such as administrative justice, and to values less often stressed by theories of judicial review such as expertise and rationality. It includes all those values relevant to answering the question of how is political and legal power to be exercised in order to justifiably lay claim to our allegiance? Courts do not have a monopoly over answering this question and due regard should be shown to the rational capacities, legitimate authority and institutional characteristics of other state actors.

• Judicial review for the advancement of justice and good governance is not based on supposed distinctions between rights, wrongs and goods. It takes little ingenuity to categorise some kind of harm to the public – a wrong – as a failure to confer a positive good, or to categorise failure to confer a good as an abuse of power in specific contexts. The Administrative Court is concerned with rights, wrongs and goods but in a manner that is constrained by its institutional characteristics and the nature of common law judicial rationality. Neat conceptual demarcations between administrative law, constitutional law, and human rights law are not evident in social practice and should therefore not characterise our theory or approach to reform.

About the author:

Sarah Nason is Lecturer in Law at Bangor University.

A launch event for Reconstructing Judicial Review is being held at the Institute of Advanced Legal Studies, London, on 20 February 2017.