Administrative Law Values V: Substantive Review
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.
In many jurisdictions it is now accepted that where an administrative decision-maker commits an error of law by interpreting a statute incorrectly, a reviewing court may intervene. Anisminic v. Foreign Compensation Commission was a watershed case. A majority of the House of Lords held that an error in interpreting an Order in Council justified judicial intervention, even in the face of a privative clause. Concern for democracy was paramount. As Lord Pearce put it, administrative decision-makers must “confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament”. When courts intervene to keep an administrative decision-maker within boundaries established by legislation, this represents “simply an enforcement of Parliament’s mandate to the tribunal”. That the “very effectiveness” of statute should be ensured by judicial review is underpinned by rule-of-law concerns: “By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law”.
Yet, as Lord Wilberforce acknowledged, determining the “extent of the interpretatory power conferred upon the tribunal” should not be done with “any necessary predisposition towards one that questions of law, or questions of construction, are necessarily for the courts”. Accordingly, in those jurisdictions where deference to administrative decision-makers is embraced, a broader view is taken of democracy: “Courts, while exercising their constitutional functions of judicial review, must be sensitive…to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures”. Statutes are treated as relevant information which carve out a space for administrative decision-makers or which inform the degree of deference courts ought to accord to administrative decision-makers. The authority thereby granted is not absolute, and rule-of-law and good-administration concerns ensure that the reasonableness of administrative decisions is policed by courts, but democracy – the legislative choice to grant authority to administrative decision-makers – is respected.
Moreover, to defer to administrative decision-makers is to defer to expert bodies which can deal efficiently with complex issues, sometimes relying on input from interested parties. Such bodies can exercise their functions with “cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject”. Both good administration and separation-of-powers concerns were expressed by the Supreme Court of the United States in its seminal Chevron decision:
Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
Competition between different conceptions of the values and between the values induces creative tension which may move the law in new directions.
Take factual error as an example. Common law courts have long been reluctant to recognize error of fact as a ground justifying judicial intervention. Consider a recent Irish case: Richardson v. Mahon. The applicant challenged a factual assertion in a report issued by the respondent tribunal. The factual assertion was based on the applicant’s alleged failure to account for a sum of money. But, as the applicant observed, counsel for the tribunal had never asked him to account for the sum of money in question. Dunne J. accepted that there was “undoubtedly” an error of fact. Nonetheless, she held that the error was within jurisdiction and thus not amenable to judicial review, stating simply: “It is not the function of the court in these proceedings to correct errors of fact made by the Tribunal…” Democracy seems to be the dominant concern here. Respect for the legislative choice to establish an administrative decision-maker counsels a restrained approach to matters falling within its bailiwick; the legislature has given responsibility for fact-finding to the administrative decision-maker, not the courts.
Yet courts have become increasingly reluctant to keep their hands resolutely off cases of factual error. Good administration has been mentioned, but the rule of law has been to the forefront. Lord Slynn of Hadley invoked rule-of-law concerns in A. v. Criminal Injuries Compensation Board, a case in which the Board rejected a claim by an alleged rape victim without having had regard to an important medical report. He would have quashed the decision on the ground of unfairness: “I do not think it possible to say here that justice was done or seen to be done”. And in E. v. Secretary of State for the Home Department, Carnwath L.J. justified the introduction of “a separate ground of review” of error of fact “on the principle of fairness”. It is surely significant that E was a case involving an asylum seeker, as is true of many of the modern cases on factual error. Error costs in this regime are extraordinarily high, as failed asylum seekers wrongly returned to their country of origin are at grave risk of physical danger. Concern for individual dignity and autonomy may well underpin the rapid rise of factual error.
Another site of creative tension under the heading of substantive review is review for fettering of discretion. It is trite law that an administrative decision-maker cannot fetter a discretionary power granted to it: “After all, the existence of a discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. Each case must be looked at individually, on its own merits”.
Adopting a general policy, however, is entirely appropriate, a laudable means of furthering the value of good administration: “The use of guidelines, and other ‘soft law’ techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions”. In this way “fruitless applications involving expense and expenditure of time might be avoided”.
This is tempered by rule-of-law concerns for the dignity and autonomy of individuals who come into contact with the administrative decision-maker. Not only will it be “helpful to applicants for permits to know in general terms what the policy and practice of the Minister will be”, but an administrative decision-maker cannot “shut its ears”: “What the authority must not do is to refuse to listen at all”. To so refuse would be to compromise the dignity and autonomy of the individual concerned.
The ultimate rule is a meld of rule-of-law and good-administration concerns:
[A] Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing…The respondent might at any time change his mind…
As long as an individual can be heard as to why a policy applies or does not apply to them, or as to why a policy should be revised, the efficiency and transparency gains from proceeding pursuant to guidelines are not outweighed by rule-of-law concerns.
 I include several of the traditional grounds of review for abuse of discretion under this head: e.g. using a power for an improper purpose (Padfield v. Minister of Agriculture, Fisheries and Food,  A.C. 997, at p. 1034, per Lord Reid: “I would infer that the discretion is not unlimited, and that it has been used by the Minister in a manner which is not in accord with the intention of the statute which conferred it”); and taking into account irrelevant considerations or failing to take into account relevant considerations (R. v. Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd.,  1 All E.R. 611 at p. 622: “It is common ground that a power exercised outside the statutory power is unlawful. This may be the consequence of an error of law in misconstruing the limits of the exercise of the power, or because the exercise is ultra vires, or because irrelevant factors were taken into account”). See further Paul Craig, “The Nature of Reasonableness Review” (2013), 66 Current Legal Problems 1.
  2 A.C. 147.
 It is now widely accepted that the logic of Anisminic means that errors of law will generally justify judicial intervention. See e.g. In re A Company,  A.C. 374, at p. 383, per Lord Diplock: “The break-through made by [Anisminic] was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished”; R. v. Hull University Visitor, ex parte Page,  A.C. 682, at p. 701, per Lord Browne-Wilkinson: “In my judgment the decision in [Anisminic] rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires”; R. (Cart) v. Upper Tribunal,  UKSC 28,  1 A.C. 663, at para. 18, per Baroness Hale of Richmond: “[In Anisminic] the House of Lords effectively removed the distinction between error of law and excess of jurisdiction”.
  2 A.C. 147, at p. 194. See similarly ibid. at p. 207, per Lord Wilberforce:
In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited. There is always an area, narrow or wide, which is the tribunal’s area; a residual area, wide or narrow, in which the legislature has previously expressed its will and into which the tribunal may not enter.
  2 A.C. 147, at p. 196. See similarly R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw,  1 K.B. 338, at p. 346.
 R. (Cart) v. Upper Tribunal,  EWHC 3052,  1 All E.R. 908, at para. 38, per Laws L.J.
 Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at para. 29.
  2 A.C. 147, at p. 209.
 Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at para. 27. Emphasis added.
 It may be said, for example, that clear statutory language must be enforced because “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”. Chevron v Natural Resources Defense Council, 467 U.S. 837 (1984), at pp. 842-843. Within these boundaries, but only within these boundaries, the administrative decision-maker is free to choose between competing interpretations.
 Peter L. Strauss, “‘Deference’ is Too Confusing – Let’s Call Them ‘Chevron Space’ and ‘Skidmore Weight’” (2012), 112 Columbia Law Review 1143.
 For example, the Supreme Court of Canada has emphasized that a deferential standard of review permits judicial intervention where the administrative decision does not bear the hallmarks of “justification, intelligibility and transparency” or fall within the “range” of possible, acceptable outcomes. Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at para. 47. These broad criteria comfortably accommodate various administrative law values by assuring certainty and equality of treatment, for example.
 Report of the Franks Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957), at p. 9.
 Chevron v Natural Resources Defense Council, 467 U.S. 837 (1984), at pp. 865-866. Separation-of-powers concerns may also have been relevant: “Alternative doctrines of jurisdictional error were rather based on differing views about the proper balance of power between courts and agencies when interpreting the conditions of jurisdiction”. Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998), 57 Cambridge Law Journal 63, at p. 76. See generally, Ivan Hare, “The Separation of Powers and Judicial Review for Error of Law” in in Christopher Forsyth and Ivan Hare eds., The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon, Oxford, 1998), p. 113.
 There is some evidence that the English courts have begun to accept the deference argument. See e.g. Jones (by Caldwell) v. First Tier Tribunal,  UKSC 19,  2 A.C. 48.
 At least not expressly:
There were numerous cases dealing with review and appeal for fact, but there was limited principled judicial guidance as to when facts ought to be susceptible to judicial scrutiny. This was in part because of the very malleability of the categories of judicial review, with the consequence that courts could on an ad hoc basis choose to catch factual error through a doctrinal category such as relevancy if they were so inclined.
Paul Craig, Administrative Law, 7th ed. (Sweet and Maxwell, London, 2012), at p. 512. See e.g. Paul Daly, “Judicial Review of Factual Error in Ireland” (2008), 30 Dublin University Law Journal 187.
  IEHC 118.
 See e.g. R. v. Governor of Brixton Prison, Ex parte Armah,  A.C. 192, at p. 234, per Lord Reid:
If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.
 See generally Christopher Forsyth and Emma Dring, “The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review” in Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne Scully-Hill eds., Effective Judicial Review: a Cornerstone of Good Governance (Oxford University Press, Oxford, 2010), p. 245.
 See e.g. Secretary of State for Education v. Tameside Metropolitan Borough Council,  AC 1014, at p. 1030, per Scarman L.J.
  2 A.C. 330.
  2 A.C. 330, at p. 347.
  Q.B. 1044, at para. 63.
 Paul Craig, “Judicial Review, Appeal and Factual Error”  Public Law 788.
 It bears mentioning that the first case to suggest that exercises of discretion should in some circumstances be subject to “anxious scrutiny” by reviewing courts was an immigration matter: R. v. Secretary of State for the Home Department, ex parte Bugdaycay,  A.C. 514, at p. 531, per Lord Bridge of Harwich.
 David P. Jones and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Thomson Reuters, Toronto, 2009), at p. 198.
 Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198,  1 F.C.R. 385, at para. 60, per Evans J.A.
 British Oxygen Co. Ltd. v. Minister of Technology,  A.C. 610, at p. 631, per Viscount Dilhorne.
 Maple Lodge Farms Ltd. v. Canada,  2 S.C.R. 2, at p. 7.
 R. v. Port of London Authority, ex parte Kynoch Ltd.,  1 K.B. 176, at p. 183.
 British Oxygen Co. Ltd. v. Minister of Technology,  A.C. 610, at p. 625, per Lord Reid.
 British Oxygen Co. Ltd. v. Minister of Technology,  A.C. 610, at p. 625, per Lord Reid. See similarly, Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198,  1 F.C.R. 385, at para. 55, per Evans J.A.:
Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact‑specific solutions on the other. Legislative instruments (including such non‑legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case-by-case basis.
This content has been updated on July 9, 2014 at 09:09.