The Rise of Context and the Unity of Public Law?

Mark Elliott has a typically excellent post on the UK Supreme Court’s decision in the Pham case (my post). Proportionality now seems destined to emerge as a common-law ground of review in the UK, in at least some circumstances, a development partly justified on the family resemblance between reasonableness and proportionality. Mark writes:

Pham is important because it reconceives the way in which [judicial review] toolbox is organised. In particular, it rejects the compartmentalisation sketched above, according to which Wednesbury and proportionality are viewed as rigidly separate; it evidences a contextualist approach which echoes that which underpinned the diversification of Wednesbury; and it extends such contextualism such that proportionality (or something that is its functional equivalent) becomes available at common law where circumsatances warrant it. In this way, Pham eschews rigid distinctions between “domestic” and “European” cases, between “rights” and “non-rights” cases, and between Wednesbury and proportionality themselves. This approach is to be welcomed. Indeed, it is of a piece with an approach that I have advocated elsewhere, according to which substantive judicial review is to be understood as a contextualist endeavour that cannot be undertaken by reference to the sort of crude distinctions sketched above.

Sensibly deployed, such an approach is capable of forming the foundation of a mature, nuanced and sophisticated body of substantive-review doctrine — one that is the servant of principle, rather than a Procrustean bed based on bald categorisation, and one that reflects the full complexity of this area of the law in normative, institutional and constitutional terms. The risk, however, is that such contextualism may collapse into a chaotic regime of single instances that renders substantive review little more than a vehicle for dispensing palm-tree justice in an unpredictable fashion.

To my eye, Mark is right about the benefits and the dangers of resorting to a contextual approach. I have written a great deal about these in the past (especially here and here) and will not re-hash my thoughts here. Let me instead pose a question about the scope of a contextual approach. If we accept that substantive review is an over-arching, context-sensitive tool available to judges, how many “rigid distinctions” should we do away with?

Take, for instance, the grounds of review of improper purposes and relevant considerations. These have traditionally been treated as distinct from Wednesbury unreasonableness in the sense of a decision-maker who has acted irrationally. But if reasonableness is a “sliding scale” dependent on context, we can surely say that statutory purposes and statutory considerations form part of the context, limiting the range of potential outcomes. Indeed, the range may sometimes consist of only one reasonable answer.

Why not extend the contextual approach to questions of procedural fairness? Judge-made principles of fairness form part of the context that constrains administrative decision-makers just as fundamental rights or mandatory statutory considerations do, such that the range of reasonable procedural choices will often be narrow. In other cases, though, these choices are so suffused with general policy considerations or particular factual nuances that the range will be much broader.

And why limit ourselves to judicial review? Why not employ this contextual approach to reasonableness to the determination of public authority liability in tort, as has recently been proposed? And if we extend it to tort, why not public contracting? Whither The Unity of Public Law? Where to stop on the “sliding scale”?

This content has been updated on April 17, 2015 at 09:44.