Administrative Law Values VII: Institutional Considerations
I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here.
Various institutional considerations may be invoked from time to time to supplement administrative law values. For example, remedial discretion can be invoked against misconduct: “these writs should not be granted, even upon grounds otherwise legally sufficient, to applicants who in the matters before the Board have committed the fraud, trickery, and apparently perjury, found against the respondents here”. Mischievous conduct by litigants should be sanctioned, not because of any particular administrative law value as such, but because litigants should not be tempted to use judicial machinery for purposes that are legally frivolous.
In this vein, it is worth also recalling Lord Lowry’s comment on the public/private divide problem: “there is much to be said in favour of the proposition that a court having jurisdiction ought to let a case be heard rather than entertain a debate concerning the form of the proceedings”. It is plausible too that, sometimes, doctrinal rules will be chosen over doctrinal standards because the former are easier for courts to administer; for example, a bright-line rule disqualifying decision-makers from adjudicating on cases in which they have a financial interest may for institutional reasons be adjudged preferable to a standard.
Institutional considerations may also play a role complementary to that of administrative law values. R. (Cart) v. Upper Tribunal is a case in point. Under the regime created by the Tribunals, Courts and Enforcement Act 2007, an individual may appeal to a First-tier Tribunal and thence to the Upper Tribunal. Sometimes, however, the Upper Tribunal will refuse to grant permission to appeal. If the Upper Tribunal’s refusal is challenged, what criteria should a reviewing court apply in determining whether or not to grant a judicial-review remedy? Baroness Hale of Richmond put the point bluntly: “We all make mistakes…The question is, what machinery is necessary and proportionate to keep such mistakes to a minimum?”
Several means of resolving this issue were proposed. First, the courts could carry on as before and review refusals for compliance with the general principles of administrative law. Yet this ran into a fundamental objection, the “very fact” that Parliament had prescribed restrictive criteria for granting leave to appeal from the Upper Tribunal to the Court of Appeal “destroys any possibility of an absolutist argument to the effect that the rule of law requires post-Anisminic unrestricted judicial review over all unappealable decisions of courts or tribunals of limited jurisdiction to ensure that they are not permitted, unsupervised by the higher courts, to commit errors of law”. In short, the “status, nature and role” accorded to the Upper Tribunal by Parliament had to be taken into account. To this democratic concern could be added one of good administration: the tribunal structure gave “several occasions” to individuals to scrutinize an adverse decision, which reduced the need for vigorous judicial oversight. And also an institutional consideration: “floodgates arguments…cannot be ignored”. Second, the courts could limit the grounds of review by reviving the distinction between jurisdictional errors (which would be reviewable) and non-jurisdictional errors (which would not be reviewable even in egregious cases). Rule-of-law concerns counselled against this, however, because it left open the possibility “that serious errors of law affecting large numbers of people will go uncorrected”.
Third, the courts could adopt a set of limiting criteria, applying “by analogy” the statutory criteria for permission to appeal from the Upper Tribunal to the Court of Appeal. It was on this solution that the Supreme Court fastened, repeatedly invoking institutional considerations, most often in the guise of proportionality, but also allied to administrative law values. Indeed, institutional considerations appeared alongside the administrative law values of democracy and the rule of law in the following passage from the speech of Lord Phillips of Worth Matravers:
Where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the demands of the rule of law.
This approach was also said to safeguard both good administration – by resolving “important point[s] of principle affecting large numbers of similar claims” – and the rule of law – by taking account of the “compelling reasons presented by the extremity of the consequences for the individual”. In summary, institutional considerations joined administrative law values in resolving the issue presented.
 Cock v. Labour Relations Board (1960), 26 D.L.R. (2d) 127, at p. 129.
 Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee,  1 A.C. 624, at p. 655.
  UKSC 28,  1 A.C. 663.
  UKSC 28,  1 A.C. 663, at para. 38.
  UKSC 28,  1 A.C. 663, at para. 99, per Lord Brown of Eaton-under-Heywood.
  UKSC 28,  1 A.C. 663, at para. 123, per Lord Dyson.
  UKSC 28,  1 A.C. 663, at para. 123, per Lord Dyson.
  UKSC 28,  1 A.C. 663, at para. 126, per Lord Dyson.
  UKSC 28,  1 A.C. 663, at para. 44, per Baroness Hale of Richmond. See similarly  UKSC 28,  1 A.C. 663, at para. 110, per Lord Dyson.
  UKSC 28,  1 A.C. 663, at para. 129, per Lord Dyson. See Tribunals, Courts and Enforcement Act 2007, s. 13(6), which provides that permission shall not be granted unless: “(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reasons for the relevant appellate court to hear the appeal”.
 See e.g.  UKSC 28,  1 A.C. 663, at para. 41, per Baroness Hale of Richmond: “There must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case”. See also ibid. at para. 104, per Lord Clarke of Stone-cum-Ebony.
 See e.g.  UKSC 28,  1 A.C. 663, at para. 100, per Lord Brown of Eaton-under-Heywood: “The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”.
  UKSC 28,  1 A.C. 663, at para. 89.
  UKSC 28,  1 A.C. 663, at para. 57, per Baroness Hale of Richmond.
This content has been updated on July 9, 2014 at 09:10.