Some Forthcoming Publications: A Comparative Study of Factual Error; Ireland’s Administrative State; and Materiality in Judicial Review

I should flag for readers three papers which I’ve recently uploaded to SSRN, a collection ranging from a comparative study of judicial review of factual error, through a critique of Irish judicial attitudes to the administrative state to an analysis of materiality in judicial review of administrative action.

First, my contribution to the Oxford Handbook of Comparative Administrative Law, entitled “Facticity: Judicial Review of Factual Error in Comparative Perspective“. Here is the abstract:

Judicial review of factual error is an aspect of the problem of allocating power between judges and the political branches of government. This problem is shared by so-called Commonwealth jurisdictions whose contemporary law of judicial review of administrative action has devolved from the prerogative writs developed by the English courts in the 16th and 17th centuries.

“Who decides?” is thus the common issue for the comparative inquiry in this paper, with “fact” taking the central role as a potential explanatory variable. For one way of answering the “who decides?” question is to label certain issues as “fact” and allocate the determination of such issues to administrative decision-makers, on an exclusive basis or near-exclusive basis. I will analyse, from a comparative perspective, the law of judicial review of administrative action as it relates to factual error, in four common law jurisdictions (Australia, Canada, England and Wales, and Ireland).

In Part I, I outline the traditional approach to judicial review of factual error in the four jurisdictions, characterised by limited judicial oversight of issues of fact (with the exception of those classified as jurisdictional). I also describe the underlying considerations which explain and justify the traditional approach, those of institutional and constitutional competence.

In Part II, I describe the recent evolution in the law of judicial review of factual error. Although the evolutionary path has not led to the same destination in each jurisdiction, there has been increased judicial willingness to examine alleged factual errors in judicial review proceedings. However, the factors which have influenced the evolution of the law are different in each jurisdiction: in Australia, struggles between the federal legislature and the judiciary have prompted changes in the common law relating to factual error; in Canada, the courts’ attempts to simplify the law of judicial review of administrative action; in England and Wales, the introduction of a statutory tribunal structure has affected the evolution of administrative law; and in Ireland (as well as in England and Wales), the influences of European Union law and European human rights law.

I will also note that the changes to the approach taken by common law courts to judicial review of factual error have occurred against the backdrop of a general shift towards a more context-sensitive approach to judicial scrutiny of the lawfulness of administrative action, which I attribute (albeit tentatively) to an increased emphasis on the justification of administrative decisions.

Download it here.

Secondly, another Oxford Handbook contribution, this time to the Oxford Handbook of Irish Politics, entitled, “The Irish Courts and the Administrative State“:

Everyone in Ireland is affected by the administrative state, in doing ordinary activities as varied as returning from abroad, applying for a driver’s licence, paying taxes, choosing a broadband internet package, or turning on the kettle. Hundreds of administrative agencies across the country churn out thousands upon thousands of decisions every day, about everything from social welfare claims to the quantity of turf that can be removed from rural bogs.

For the most part, these bodies are creatures of statute. As such, they may exercise only those powers granted to them by the Oireachtas. In their activities, Irish public bodies are subject to the law, as set down by the country’s superior courts (the High Court, Court of Appeal, Court of Criminal Appeal and Supreme Court).

My focus in this chapter will be on the constraints of public law. I will observe that Irish public law is highly centralised, with control of legal interpretation firmly vested in the judicial branch and, more particularly, in the High Court (with, of course, onward appeals to the Court of Appeal, the Court of Criminal Appeal and the Supreme Court). There is relatively little legal pluralism. This observation will be confirmed by contrasting the approach the Irish courts have taken to the decision of public law issues with the approaches taken in other jurisdictions, such as England and Wales, Canada, Australia and the United States.

In addition, Irish judges have adopted a traditionalist approach to the relationship between the judiciary and the administrative state. In Ireland, the courts control the articulation of legal norms, giving little or no weight to the views of non-lawyers about the meaning of law. They rely in addition on a formalistic distinction between questions of law, which are reserved to the courts, and questions of fact, discretion or policy, which are for non-lawyers. Again, bringing comparative perspectives to bear – particularly from Canada and to a lesser extent from England – will allow us to see more clearly how traditionalist Irish judges have been in this area, because in other jurisdictions non-lawyers have significant influence on the content of legal norms.

I consider these issues under the broad headings of: the supervisory jurisdiction of the superior courts; limited legal pluralism (both on matters of interpretation and institutional structure); and alternative dispute resolution.

Download it here.

Thirdly, “A Typology of Materiality” will appear in the next issue of the Australian Journal of Administrative Law. Here is the abstract:

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision has prompted some discussion and debate on the High Court of Australia in two important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34.

This is a difficult issue, which causes conceptual confusion and obscures important underlying issues.

By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality.

First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional.

Second, materiality can be used to denote a causal link between the error complained of and the decision under review.

Third, materiality can be used to denote judicial discretion to refuse relief.

I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.

Download a pre-publication version of the paper here.

This content has been updated on October 22, 2019 at 14:46.