The Future of Substantive Review in English Administrative Law: R (Gallaher Group Ltd) v Competition and Markets Authority [2019] AC 96

The UK Supreme Court’s decision in R (Gallaher Group Ltd) v Competition and Markets Authority [2019] AC 96 has already spawned a large literature (for open-access commentary, see e.g. Mark Elliott and Joanna Bell). I noted the case when it was decided last summer but did not have much to say, treating it, first, as a welcome recognition of the unhelpfulness of mission statements such as “abuse of power” in organising administrative law (see paras. 31-41 and, generally my “The Language of Administrative Law“) and, second, as an equally welcome restatement of the principle that if there is an objective justification for a decision to treat similarly situated groups differently, the decision ought to be upheld on judicial review (at paras. 44, 55 and 63). The burgeoning Gallaher literature has, however, persuaded me that there is more to be said, particularly about the future of substantive review in administrative law.

The key issue in Gallaher was the status of equal treatment in English administrative law. The cornerstone of the applicants’ case was, indeed, that they had not been treated equally: one of the parties investigated for price-fixing was (more or less by accident) given a sweetheart deal by the regulator. Gallaher Group and others sought judicial review, complaining that their differential treatment was unlawful. In response, Lord Carnwath was quite blunt: “the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law” (at para. 24). Insofar as “issues of consistency” arise in English administrative law, they are “generally” to be treated “as aspects of rationality” (at para. 26). As Lord Sumption put it: “The common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities” (at para. 50). By contrast, “legitimate expectation” was, for Lord Carnwath, a distinct, cognisable and justiciable “principle” of English administrative law (at para. 41).

The reason Gallaher has provoked such attention is that the English law of judicial review is currently in a state of flux. For years, warring tribes of academics and judges have fought pitched battles, some flying the flag of Wednesbury, others hoising the standard of proportionality. Yet the Supreme Court seems to wish to broker an unlikely truce, by preferring neither Wednesbury nor proportionality but instead the concept of a range of rational outcomes, which seems set to become the organising concept of substantive review in English administrative law. According to the Supreme Court, it is the “classic judicial review investigation” (Michalak v General Medical Council [2017] 1 WLR 4193 at para. 21).

Where one stands on Gallaher indicates where one stands on broader issues. As the dust falls, there are three camps staking out their positions: those who would (a) return to the sharp divide between Wednesbury and proportionality; (b) develop new grounds of review (such as consistency and legitimate expectations) alongside context-sensitive Wednesbury and proportionality standards; and (c) crown the range of rational outcomes King in the aftermath of the long Wednesbury proportionality conflict. These camps can also be understood in terms of the schema developed by Dean Knight in his excellent book, Vigilance and Restraint in the Common Law of Judicial Review(CUP, 2018).

First, what about returning to Wednesbury and proportionality? To begin with, it is not clear what we would be returning to. The rise of the concept of the range of rational outcomes was occasioned in no small part by growing recognition that neither Wednesbury nor proportionality were monolithic — both can only be applied in a context-sensitive manner: “What matters is how the subject matter of the test is defined, and how intensively that test is then performed, and the clarity of the courts’ discussion of these issues” (Williams, “Structuring Substantive Review” [2017] PL 99 at 115).

Indeed, one can identify proportionality cases which, because of the nature of the interests at stake, approximated to low-intensity Wednesbury review. And, of course, many commentators over the years have noted the vast gulf between the language of Wednesbury unreasonableness, which suggests that this ground of review will hardly ever be made out, and the application of Wednesbury in practice, which has always been considerably more liberal than judicial statements of the principle would have observers believe. Nostalgic arguments for a return to a sepia-tinted past always sound warm and comforting but it is not clear that the heady days of pure Wednesbury ever existed and it is extremely doubtful that (knowing what we now know) we could turn back the clock.

Moreover, the strongest arguments for a bifurcation of administrative law into public wrongs (to be addressed by Wednesbury) and individual rights (to be protected by proportionality) run into equally strong objections: contemporary administrative law is best categorised by fluidity, not doctrinal rigidity, as across all areas of judicial review of administrative action courts correct public wrongs and vindicate individual rights.

Second, what about developing other grounds of review, whilst retaining the context-sensitive Wednesbury and proportionality standards? As Professor Elliott puts it:

[A]cknowledging consistency as a free-standing ground of review would enable a suitable doctrinal superstructure to develop around it, as occurred with legitimate expectation. This would enable courts to approach relevant questions — about, for instance, the circumstances in which a policy or practice should, in the first place, be regarded as sufficiently clear and settled as to render deviations from it prima facie‘inconsistent’ — more systemically and predictably, and would aid the necessary disaggregation of legitimate expectation and consistency cases.

See further [2018] CLJ 444

Professor Elliott is also a supporter of context-sensitive substantive review, using Wednesbury and proportionality as “starting points” to determine whether a given decision is justifiable or not, an analytical exercise which draws on similar underlying concerns.

Practitioners with whom I have spoken about Gallaher and the future of substantive review tend to have significant sympathy with this approach, in part because they consider that a free-standing ground of review would be more favourable to applicants for judicial review than the rationality review applied in Gallaher. With such academic and practical support, this is a plausible path for the future development of English administrative law. Nonetheless, there are obstacles along the way.

It is worth considering why Lord Carnwath and his colleagues were so evidently reluctant to confer the status of a free-standing ground of review on the principle of consistency. I suggest that the history of legitimate expectation might have operated as a cautionary tale. Almost 20 years since the seminal decision of the Court of Appeal in Coughlan, judicial and academic debates continue to rage about the scope of legitimate expectation. The best minds at the bar, on the bench and in the academy have struggled to develop a coherent and widely-accepted account of legitimate expectation as a ground of review. Launching the principle of consistency on a similar journey might lead to similar results: many more trees sacrificed to the cause of doctrinal coherence, but significant confusion about the scope of consistency as a ground of review.

Here there is an important contrast between legitimate expectation and consistency and the traditional grounds of review for abuse of discretion. Grounds of review such as non-fettering, sub-delegation, relevant considerations and improper purposes can be traced to a statutory source. Ultimately, these grounds of review have an in-built control mechanism, inasmuch as they are always bounded by statute. (I would say that their contours are also influenced by other considerations, such as judicial solicitude for individual interests and concern not to disrupt effective and efficient administrative decision-making.) Legitimate expectation and consistency are, by contrast, free-standing and unmoored to statute. Accordingly, the risk that they will drift (as legitimate expectation has) is greater.

In addition, legitimate expectation and consistency have a great deal in common with context-sensitive Wednesbury and proportionality standards. Legitimate expectation cases invariably involve a consideration of whether a promise, policy or practice can be relied upon by an individual to constrain the discretion of a decision-maker and, critically, a consideration of whether the decision not to follow the promise, policy or practice is justifiable. Similarly, the principle of consistency, as recognised in “free-standing” form by the UK Supreme Court in Mandalia v Home Secretary [2015] 1 WLR 4546, “require[s] the promise or practice to be honoured unless there is good reason not to do so” (at para. 29, citing R (Nadarajah) v Secretary of State for the Home Department[2005] EWCA Civ 1363, emphasis added). With the grounds of review of legitimate expectation and consistency, then, the ultimate question will be the same as the ultimate question in any Wednesbury or proportionality challenge, namely, can the aberration complained of be objectively justified.

Having said all that, there are significant commonalities between a grounds of review approach to substantive review and the present approach to procedural fairness. Although many procedural fairness cases emphasise (rightly) the context-sensitive nature of the contemporary duty of fairness, they can equally be understood as developing discrete tests for different procedural rights (oral hearings, legal representation and so on). Given the relative lack of controversy about procedural fairness in administrative law, the development (if my characterisation is accurate) of grounds of review might provide some succour to those who would develop new grounds of review to stand alongside Wednesbury.

Third, what about embracing context as King? As I have noted, substantive review around the common law world seems to be taking a contextual turn. This approach is not without its problems (especially in its most radical forms): it certainly needs to be cabined in some way, for otherwise judges will be set adrift on an ocean of context; and there are legitimate concerns about whether a context-sensitive approach would be sufficiently protective of fundamental rights. Assuming these concerns can be addressed (a large assumption, I grant you, but see here and here), there are strong reasons to embrace a context-sensitive approach to substantive review in which the concept of a range of rational or reasonable outcomes is central.

To begin with, it provides an umbrella under which legitimate expectation, consistency and many other important principles can shelter. Rather than being forced to develop a detailed ontological account of which “expectations” are “legitimate” and when “consistency” requires action or permits inaction, courts could use context-sensitive substantive review to vindicate the underlying normative concerns (for the protection of individuals and promotion of effective and efficient decision-making, for instance) and assess whether the decision-maker has offered an adequate justification for any aberrations in the decision under review. This would simplify and enhance coherence in English administrative law. One could even envisage a future in which other grounds of review for abuse of discretion, such as retention of discretion, relevancy and propriety, were folded into the concept of the range of rational or reasonable outcomes (as has happened in Canada: Dr. Q. v. College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226.

Furthermore, context-sensitive substantive review would permit English courts to give effect to their obligations under European human rights law and European Union law. Article 6 of the European Convention on Human Rights, which has been given an appropriately expansive scope by the Strasbourg Court (notwithstanding complaints from London) applies to a wide range of administrative decision-making and requires decisions to be taken by an independent and impartial tribunal. Many front-line decision-makers on welfare and housing entitlements do not enjoy the necessary independence and impartiality. This non-compliance with the strictures of Article 6 can be ‘cured’ by sufficiently robust judicial review. The effective remedy requirements of European Union law impose similar requirements. Put very simply, to live up to their European obligations, English courts have to vary the intensity of judicial review to take account of the decision-making context in question. Grounds of review are ill-suited to this task; retro-fitting them to take account of the exigencies of European human rights law and European Union law has proven difficult and is likely to increase complexity without any corresponding benefit in terms of clarity.

Finally, embracing context-sensitive substantive review paves the way for further simplification of English administrative law. In particular, the umbrella of context-sensitive substantive review could be extended to cover the notoriously difficult area of jurisdictional error. For is it not true that, as Professor Williams observes:

…in all instances substantive review must be undertaken in as articulate and structured a manner as possible, defining both what is being reviewed (whether this falls into necessity, suitability and fair balance or another concern) and how intensively that review should take place, regardless of the historical headings under which they would have fallen.

[2017] PL 99 at 123.

Quite what direction the English law of judicial review will now take is uncertain. Gallaher indicates, if anything, that the Supreme Court might be ready to follow a context-sensitive approach to substantive review. But who knows? We can leave the last word with Lord Kerr:

Final conclusions on a number of interesting issues that arise in this area must await a case where they can be more fully explored. These include whether irrationality and proportionality are forms of review which are bluntly opposed to each other and mutually exclusive; whether intensity of review operates on a sliding scale, dependent on the nature of the decision under challenge and that, in consequence, the debate about a ‘choice’ between proportionality and rationality is no longer relevant; whether there is any place in modern administrative law for a ‘pure’ irrationality ground of review ie one which poses the question, ‘could any reasonable decision-maker, acting reasonably, have reached this conclusion’; and whether proportionality provides a more structured and transparent means of review.

Keyu v. Foreign Secretary [2015] 3 WLR 1665, at para. 278.

This content has been updated on March 4, 2019 at 11:52.