Putting the Genie back in the Bottle: the Growth of Substantive Review

In his plenary paper at the Public Law Conference, Mark Aronson discussed the growth of substantive review in Australia, a phenomenon that can be glimpsed in most common-law jurisdictions.

Mark gave three reasons for growth:

1. The rise of reasons (as a requirement imposed by statute or common law, or, I would add, self-imposed for reasons of good administration):

“Despite all the ritual warnings…courts engaged in judicial review are naturally disposed to reading statements of reasons, especially those made by tribunals, in much the same way as they read the reasons of a first instance judge”;

2. The judicialization of tribunals:

“the whole point of establishing merits review tribunals is to provide a greater degree of care than is typically provided at the first instance, bureaucratic level [such that] the courts have good warrant for intensifying their substantive scrutiny, to make sure that the tribunals are doing what is substantively expected of them”; and,

3. Legislative restrictions that have backfired:

“The attempts to oust the common law’s procedural fairness substantially failed…Paradoxically, however, it was in the drawn-out course of that particular failure that the High Court started propounding its requirements that the tribunals engage intellectually with the applicant’s case and evidence, and equally, that the tribunals allow applications to engage with the material that was worrying the tribunal.

The third came again to mind today as I read David Cameron’s pledge to enact a new ‘British Bill of Rights’. Despite the rhetoric, this new legislation (of which the details will apparently be released on Friday) may not ultimately lead to significant change. Indeed, if it cuts down on the remedies currently available under the Human Rights Act to individuals whose rights have been violated, it may have the paradoxical effect of causing English judges to ramp up the protections available at common law. A reinvigoration of the common law already seems to be on the cards, and if Mr. Cameron tries to deal from the bottom of the deck, he may well find that the judges play an aggressive game. As with substantive review, once the human rights genie is out of the bottle, it is very difficult to put it back in.

This content has been updated on October 1, 2014 at 10:37.