Substantive Review: Categories, Context, Controversy

Here is a snippet of a piece to be published in the inaugural volume of the Irish Supreme Court Review: “Substantive Review in the Common Law World: AAA v Minister for Justice [2017] IESC 80 in Comparative Perspective” (full version available on request).

How intensively courts on judicial review should scrutinise administrative decisions is a question that has bedevilled courts and commentators for decades. In contemporary parlance, this area of administrative law is known as “substantive review”. Those reared in earlier eras will be more familiar with terms such as “Wednesbury unreasonableness” and “irrationality”, but today’s watchwords are “scope” and “intensity”.[1] The shifting terminology reflects the rapid evolution of the law of judicial review of administrative action, reflects common law judges increased willingness to countenance close scrutiny of the substance of administrative decisions.[2] Contemporary courts and commentators are preoccupied with:

…the extent to which review of the merits, traditionally limited to Wednesbury unreasonableness, should be expanded into more intensive reasonableness review, or new substantive grounds of review, or both.[3]

Four general points are worth emphasising about the contemporary state of administrative law in Australia, England and Wales, Ireland and New Zealand.

First, the long-running debate about the relative merits of Wednesbury unreasonableness and proportionality has been resolved in favour of neither. Courts have apparently come to recognise that Wednesbury unreasonableness and proportionality both vary in intensity according to context. In England, for instance, “[w]hether under EU, Convention or common law, context will determine the appropriate intensity of review”.[4] Under the banner of proportionality as much as under the banner of Wednesbury, context is a distinctive and distinctively important feature.

Second, contemporary reasonableness review in the common law world is contextual in nature. Exactly how it operates in any given case depends on a variety of contextual factors, such as the nature of the statutory scheme and the individual interest at question. It is worth noting that distinctions familiar to earlier generations – between jurisdictional and non-jurisdictional error; and between questions of law and questions of fact – are much less prominent in contemporary jurisprudence.

Third, the intensity of judicial review varies from case to case, depending on the interaction of the contextual factors. In cases involving broad statutory grants of discretionary authority to regulate economic activity, on the one hand, the intensity of review is more relaxed; whereas on the other hand in cases involving detailed statutory schemes with little room for interpretive manoeuvre and fundamental individual interests, judges will engage in exacting review of the administrative action in question. Sometimes, the range of possible, acceptable outcomes will be so constrained by the relevant contextual factors as to admit of only one reasonable outcome.[5]

Fourth, there remains a fundamental distinction between ‘appeal’ and ‘review’ in the common law world. Judicial review of administrative action is concerned not with the merits of the decision under review but with whether it was reached in a lawful manner. Recent developments have, however, undermined the old appeal/review distinction. Contemporary courts are more willing than their predecessors to scrutinise administrative action, making clear that there is no area of decisional autonomy free from judicial oversight – even on matters of high policy, arbitrariness will not be tolerated.[6] This is to be contrasted with the traditional judicial reluctance to interfere with matters of fact and impression[7] and the old doctrine (which still occasionally bares its teeth) of error of law within jurisdiction.[8] Accordingly, Lord Mance was quite rightly careful in Michalak not to “circumscribe the development of judicial review or its ability to cater, in appropriate circumstances, for close examination of a claim on its merits”.[9] In many cases, a review will approximate an appeal. A review may even, where there is only one possible, acceptable outcome, have the same result as a successful appeal, namely, substitution of judgement by the hierarchical superior of the first-instance decision-maker.

On one view, the recent trends revealed by this comparative analysis signify a “slide towards an open-ended, ‘contextual’ balancing approach to judicial review, particularly in the field of substantive review”,[10] which “will free judges from the traditional discipline and constraint imposed by a pre-existing framework of rules and principles and lead to decision-making based on instinct and subjective preference”.[11]

Plainly, there is significant risk associated with purely contextual approaches to substantive review. They may undermine legal certainty by reverting to “that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th’ol’ ‘totality of the circumstances’ test”.[12] Lawyers will find it difficult to advise clients – public and private – if the boundaries of substantive review are too fluid. Moreover, as the legal realists taught us and jurists of common sense readily appreciate, where broadly-drawn decisional criteria are used there is a constant risk that judges’ personal policy preferences will fill the gaps. Courts might thus find themselves “assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ”.[13]

Equally, however, moving away from context to develop categorical distinctions and watertight compartments into which different types of decision can be slotted[14] carries its own difficulties. Administrative law was plagued for decades by rigid categories: jurisdictional/non-jurisdiction; rights/privileges; administrative/judicial/quasi-judicial. Where contemporary common law courts have relied on categorical distinctions to structure substantive review, the results have been disastrous.[15] Indeed, the most common complaint about the rigid categories of previous eras – neat and pleasingly Cartesian as they were – was precisely that they masked the judicial value judgements on which individual cases turned.[16] Turning the clock back to the 1950s (and earlier) ignores the lessons of history.

Moreover, judicial review of administrative action only cast off the shackles of the prerogative writs in the late 20th century, a full century after the law of tort and contract were liberated from the forms of action in which they had been encased. Only three decades ago – the blink of an eye in historical terms – Lord Diplock noted how “the English law relating to judicial control of administrative action has been developed upon a case to case basis which has virtually transformed it over the last three decades”.[17]  Administrative law is a relatively young subject, whose foundational principles are still emerging. To preserve in aspic only those which have only recently crawled haltingly and half-formed into the light risks retarding the development of judicial review of administrative action.

A wiser approach is available, one which is alive to: the risks of unbounded judicial discretion in picking and choosing contextual factors to suit the preferences of individual judges; which is cognisant of the lessons of the history of administrative law; and which appreciates where contemporary developments in substantive review fall in the broad sweep of history. Courts can identify foundational criteria from which contextual considerations can be drawn. The Supreme Court of Canada, for instance, has identified the rule of law and democracy as the principles that underpin the law of judicial review[18] and academic commentators have identified sets of principles[19] or purposes[20] or values[21] revealed by the decided cases. Judges in identifying the relevant context in any given case could have regard to such principles and values to structure and justify their choice of contextual considerations. The charge of free-wheeling judicial discretion could be met by the firm response that the contextual nature of substantive review is cabined by respect for principles, purposes and values drawn from sources – constitutional provisions, statute and precedent – of unimpeachable validity.

[1] See generally Hanna Wilberg and Mark Elliott eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart, 2015).

[2] I use “apparently” advisedly, because empirical assessment of the deference shown by courts to administrative decision-makers is notoriously difficult. For an excellent recent discussion, see Pablo Ibanez Colomo, The Shaping of EU Competition Law (Cambridge: Cambridge University Press, 2018), chapter 2.

[3] Hanna Wilberg and Mark Elliott, “Introduction” in The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart, 2015), at 1.

[4] [2015] 1 WLR 1591 at [96] [Pham].

[5] See e.g. In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173, para 144; McLean v British Columbia (Securities Commission) 2013 SCC 67, [2013] 3 SCR 895, at para. 38; Michalak v General Medical Council [2017] UKSC 71, [2017] 1 WLR 4193, at para. 37.

[6] See especially Minister for Immigration and Citizenship v Li [2013] HCA 18, at para. 28, per French CJ. For a recent example from Canada, see Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) 2018 ONSC 5062.

[7] See e.g. Ryanair Ltd v Flynn [2000] IEHC 36, [2000] 3 IR 240; Richardson v Mahon [2013] IEHC 118.

[8] See e.g. Mone v An Bord Pleanála [2010] IEHC 395.

[9] [2017] UKSC 71, [2017] 1 WLR 4193, at para. 37.

[10] Jason Varuhas, “Taxonomy and Public Law” in Mark Elliott, Jason Varuhas and Shona Wilson Stark eds., The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Oxford: Hart, 2018), 39 at 51

[11] Ibid. at 54-55. See also Christopher Forsyth, “‘Blasphemy Against Basics’: Doctrine, Conceptual Reasoning and Certain Decisions of the UK Supreme Court” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds., Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart, 2016).

[12] United States v Mead Corporation 533 US 218 (2001), per Scalia J.

[13] Attorney General (NSW) v Quin (1990) 170 CLR 1 at xxx, per Brennan J.

[14] See e.g. James Grant, “Reason and Authority in Administrative Law” (2017) 76 Cambridge Law Journal 507; Jason Varuhas, “In Search of a Doctrine: Mapping the Law of Legitimate Expectations” in Matthew Groves and Greg Weeks eds., Legitimate Expectations in the Common Law World (Oxford: Hart, 2016); Jason Varuhas, “Taxonomy and Public Law” in Mark Elliott, Jason Varuhas and Shona Wilson Stark eds., The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Oxford: Hart, 2018).

[15] See e.g. David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42 Queen’s Law Journal 27.

[16] See e.g. Paul Craig, Administrative Law, 8th ed. (London: Sweet and Maxwell, 2016), at 496-497.

[17] Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, at 407.

[18] Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190, at para. 27.

[19] David Feldman, “Error of Law and Flawed Administrative Acts” (2014) 73 Cambridge Law Journal 275.

[20] Mark Elliott, “Judicial Review’s Scope, Foundations and Purposes: Joining the Dots” (2012) New Zealand Law Review 75.

[21] Paul Daly, “Administrative Law: A Values-Based Approach” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds., Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart, 2016); Dawn Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999); Sarah Nason, Reconstructing Judicial Review (Oxford: Hart, 2016).

This content has been updated on February 22, 2019 at 09:33.