Leading Works in Public Law: de Smith’s Judicial Review of Administrative Action — “The Work”

I am currently working on a chapter for “Leading Works in Public Law”, a collection edited by Ben Yong and Patrick O’Brien. My chapter is on SA de Smith’s Judicial Review of Administrative Action. Here is a draft of the first section, on “The Work”

The Work

Born in 1922, Stanley Alexander de Smith attended Southend High School and St Catharine’s College, Cambridge, where he graduated with a double first-class BA in 1942.[1] In each of his three years of undergraduate study, de Smith recorded a first in law, garnering also the George Long prize in jurisprudence along the way.

A period of military service (with honours) followed, before he took up a position as Assistant Lecturer at the London School of Economics in 1946. He was successively promoted to Lecturer, Reader and, in 1959, Professor of Public Law before returning to Cambridge in 1970 as the Downing Professor of the Laws of England and a fellow of Fitzwilliam College. In 1971, he became a fellow of the British Academy. During his time at the LSE he was an active member of Editorial Committee of the Modern Law Review from 1947 to 1959 and later joined the Cambridge Law Journal in 1959 before acceding to the role of editor in 1973.

Professor de Smith’s life was cut short by cancer at the early age of 51. That his ashes were scattered in Mauritius is suggestive of his great love of the Commonwealth. Indeed, although he is best known for Judicial Review of Administrative Action and Constitutional and Administrative Law – texts which have continued to thrive after de Smith’s death – he published important works on Commonwealth constitutional law. His The New Commonwealth and its Constitutions was “a wide-ranging and exceptionally well-informed approach to developments in the Commonwealth” and he was a part-time constitutional commissioner for Mauritius in the 1960s.[2]

On his death, the Modern Law Review described Professor de Smith as “a scholar and legal writer of exceptional quality,[3] Lord Diplock recounted his memories of a “brilliant young law don”,[4] the Cambridge Law Journal referred to his “encouraging [attitude towards] his students and younger colleagues”,[5] and by all accounts he was a gentle, quiet and helpful man. 

de Smith was best known during his life and after his death for Judicial Review of Administrative Action.This text began life as de Smith’s Ph.D. thesis at the London School of Economics. Parts of it were published as academic articles[6] before the whole appeared in 1959, published by Stevens & Sons.

Judicial Review of Administrative Action is a book about judicial review of public administration by the courts. Collecting more than 1,800 decisions from English and Commonwealth courts,[7] de Smith comprehensively laid out the landscape of judicial control of public administration. It contains three Parts. Part One, “Introductory” contains two chapters: one on the Place of Judicial Review in English Administrative Law and one on “Classification of Functions”. In Part Two, “Principles and Scope of Judicial Review”, there are five chapters on “Vires, Jurisdiction, Law and Fact”, “Natural Justice: the Right to a Hearing”, “Natural Justice: Interest and Bias”, “Review of Discretionary Powers” and “Statutory Restriction of Judicial Review”. The subject of Part Three is “Judicial Remedies” and it contains chapters on the historical origins of the so-called prerogative writs, the details of certiorari and prohibition (two of the most important writs), injunctions, declarations and remedies for failure to perform public duties. To these twelve chapters are appended material on the Tribunals and Inquiries Act 1958 and a discussion of the special statutory procedure for questioning the validity of certain orders relating to land.

As de Smith acknowledged, the issues in relation to public administration which arise for judicial decision “are likely to exclude many that are thought to be of paramount importance for the conduct of government”.[8] de Smith’s was not a study of public administration, as such, but rather a study of judicial oversight of public administration. In the common law tradition, such oversight is secured by the ‘ordinary’ courts, the same ones which adjudicate on matters of contract, crime, family, property and tort. Moving towards a civilian-style system, with entirely separate administrative courts is ruled out by “the common lawyer’s interpretation of constitutional history”:[9] “imitation is precluded by three centuries of tradition and myth”.[10] Although the role of the courts in common law jurisdictions in overseeing public administration is “inevitably sporadic and peripheral”, their role is “of paramount importance to the individual citizen who seeks to vindicate his own legal claims against the Administration”.[11] For this reason alone, de Smith’s project was worthwhile. But he also noted that despite the peripheral and sporadic nature of judicial review, the courts through their “fearless” enforcement of the “principle that government must be carried on strictly in accordance with the law…are capable of conditioning the whole ethos of public administration”.[12] It might be said, therefore, that de Smith was not concerned simply with the exposition of principles of judicial review but also with the elaboration of principles of good administration.[13]

In John Griffith’s review of Judicial Review of Administrative Action, he remarked (in terms made poignant by hindsight) on how the “spirit of the author of this book will surely be heartened in heaven by the appearance of ‘X on de Smith’, being, let us say, the twenty-third edition”.[14] Foronly three editions of de Smith’s Judicial Review of Administrative Action were published in his lifetime. After the progenitor’s untimely death in the early 1970s, John Evans took the reins. Evans was at that point a Lecturer at the London School of Economics and produced the fourth edition in 1980. By then, Evans had moved to Canada, to a Professorship at Osgoode Hall Law School (before eventually serving as a judge on the Federal Court, Federal Court of Appeal and the Court Martial Appeal Court). Judicial Review of Administrative Action lay dormant for a decade before Lord Woolf and Professor Sir Jeffrey Jowell set to work on a fifth edition, which was published as De Smith’s Judicial Review of Administrative Action in 1995 (with Andrew Le Sueur acting as assistant editor). Sixth (2007), seventh (2013) and eighth (2018) editions have followed, with the addition most recently of Catherine Donnelly and Ivan Hare QC to the authorial roster.

[1] This section draws on: “Professor S.A. de Smith” (1974) 37:3 Mod L Rev 241; “Professor S.A. de Smith” (1974) 33:2 Cambridge LJ 177; Williams, D.G.T., “Smith, Stanley Alexander de (1922-1974), jurist” Oxford Dictionary of National Biography online: <www-oxforddnb-com.proxy.bib.uottawa.ca/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-64544>; H W R Wade, “Stanley Alexander de Smith, 1922–1974” (1974) 60 Proceedings of the British Academy 477 at 477 and Lord Diplock, “Administrative Law: Judicial Review Reviewed” (1974) 33:2 Cambridge LJ 233.

[2] Williams, D.G.T., “Smith, Stanley Alexander de (1922-1974), jurist” Oxford Dictionary of National Biography online: <www-oxforddnb-com.proxy.bib.uottawa.ca/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-64544>

[3] “Professor S.A. de Smith” (1974) 37:3 Mod L Rev 241 at 241.

[4] Lord Diplock, “Administrative Law: Judicial Review Reviewed” (1974) 33:2 Cambridge LJ 233 at 233.

[5] “Professor S.A. de Smith” (1974) 33:2 Cambridge LJ 177 at 178.

[6]

[7] “In the age before electronic databases, this was a considerable achievement”. Lord Woolf and Jeffrey Jowell, De Smith, Woolf and Jowell’s Judicial Review of Administrative Action, 5^th ed. (Sweet and Maxwell, London, 1995), at p. viii.

[8] Judicial Review of Administrative Action, at p. 3.

[9] Judicial Review of Administrative Action, at pp. 5-6.

[10] Judicial Review of Administrative Action, at p. 6.

[11] Judicial Review of Administrative Action, at p. 3.

[12] Judicial Review of Administrative Action, at p. 3.

[13] DJ Galligan, “Judicial Review and the Textbook Writers” (1982) 2 Oxford Journal of Legal Studies 257.

[14] JAG Griffith, “Book Reviews” (1960) 18 Cambridge Law Journal 228, at p. 229.

This content has been updated on April 24, 2020 at 13:45.