Reconstructing Judicial Review — Sarah Nason

Today at the Centre for Public Law, we kicked off a new series of seminars, New Faces in Public Law, designed to bring to the Faculty emerging scholars who have produced interesting work on important issues of public law. to Dr Sarah Nason (Bangor University) introduced her new book, Reconstructing Judicial Review (Hart, 2016). Here is the abstract:

This book offers a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, as opposed to being concerned primarily with ultra vires or common law constitutionalism. It is developed both from examining the functions and values that ought to be served by judicial review, and from analysis of empirical ‘social’ facts about judicial review primarily as experienced in the Administrative Court. Based on ground-up case law analysis it constructs a new taxonomy on the grounds of judicial review: mistake, procedural impropriety, ordinary common law statutory interpretation, discretionary impropriety, relevant/irrelevant considerations, breach of an ECHR protected right or equality duty, and constitutional allocation of powers, constitutional rights, or other complex constitutional principles. It explains each of these grounds, what academic and judicial support there might be for them outside case law analysis, and their similarities and differences when viewed against popular existing taxonomies. It concludes that Administrative Court judges are engaged in ordinary common law statutory interpretation in approximately half of all cases, and that where discretionary judgement is involved on the part of the initial decision-maker, judges do indeed consider their task to be one of determining whether the challenged decision was justified by reasoning of adequate quality. It finds that judges apply ordinary common law principles of statutory interpretation with historical pedigrees, including assessing the initial decision-maker’s reasoning with reference to statutory purpose, and sifting relevant from irrelevant considerations, including moral considerations. The result is a ground-breaking reassessment of the grounds of judicial review in England and Wales and the practice of the Administrative Court.

To listen to Dr Nason’s presentation, you can click on the embedded link below, or click here.

I was due to give some comments but Dr Nason’s presentation prompted such a fascinating discussion that I simply stepped out of the way. Here are some brief thoughts on the book and the discussion that we had today.

One of the most interesting aspects of Reconstructing Judicial Review is the detailed treatment of methodology. Often public law scholars are not clear about the methodologies they are employing or the aims they are seeking to achieve, creating a dialogue des sourds, in which antagonists speak at each other increasingly loudly, to the mutual incomprehension of both parties. Dr Nason is laudably clear about her objective of providing an empirically grounded account of the social practice of judicial review; the rest of us would do well to follow her example.

Her book contains fascinating findings, based on a review of many first-instance decisions in the Administrative Court of England and Wales (part of the High Court), an analysis of court filings and surveys of practitioners. Two of her findings are particularly striking. First, there are few lawyers who are genuinely specialists in both substantive areas of law (such as environmental law, planning law, prison law and so on) and the general principles of judicial review of administrative action. Indeed, many lawyers who bring judicial review claims have only sporadic experience of the Administrative Court. Second, and perhaps relatedly, first-instance judicial review decisions do not involve detailed discussions of the doctrinal niceties that one finds in the textbooks or lectures on administrative law. Rather, they tend to turn on judicial judgement, informed by the judge’s experience and the arguments of the parties. In addition, a majority of judicial review claims are brought to resolve individualised grievances, not to set out timeless constitutional principles. The practice of judicial review in the Administrative Court is, it turns out, nothing like the judicial review that one finds in the library or the classroom.

This is not necessarily to say that those of us who conduct doctrinal, interpretive or theoretical analysis of appellate-level decisions are misguided. Coherence in the law, across domains of legal practice and between normative commitments and judicial doctrine are all important. But Dr Nason’s findings remind us that those of us who employ these methodologies should be humble. Equally, however, empiricists have to start from somewhere and their starting points are usually fixed by doctrinal, interpretive or theoretical inquiry. As Grant Gilmore observed in his Storrs Lectures, The Ages of American Law:

the part of wisdom is to keep our theories open-ended, our assumptions tentative, our reactions flexible…Like the blind man dealing with the elephant, we must erect hypotheses on the basis of inadequate evidence. That does no harm — at all events it is the human condition from which we will not escape — so long as we do not delude ourselves into thinking that we have finally seen our elephant whole.

Appreciating the importance of transparency in respect of methodologies and objectives will help public lawyers — empiricists, theoreticians and others — to ensure that they are engaged in the sort of mutually enriching dialogue that we enjoyed today.


This content has been updated on February 21, 2017 at 20:30.