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

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 third section, on “The Significance”

The Significance

Judicial Review of Administrative Action was “the first cab off the rank”.[1] It was, as de Smith noted on the very first page, “the first book of its kind to have been written by an English author”.[2] Other authors had tackled the broad area of the law of public administration.[3] None of these, however, had de Smith’s laser-like focus on the “acts, omissions, orders, decisions and determinations of Ministers, local authorities, other public corporations, public officials and administrative tribunals”.[4] It is no exaggeration to say that de Smith brought a distinct field of study into being, filling “one of the most serious gaps in legal literature”.[5] For contemporary public lawyers, the phrase “judicial review of administrative action” trips off the tongue, but de Smith’s contemporaries noted that his focus and phrase were entirely novel.[6]

But de Smith’s ‘first-mover’ advantage is not enough, on its own, to explain the immediate and enduring success of his text. For that, one must turn to the structure and quality of de Smith’s analysis.

In terms of structure, the introductory chapters served to define de Smith’s field of study and to lay out the tripartite – “legislative”, “administrative”, “judicial” – classification which dominated the decided cases. Then, in Part 2, de Smith turned to the scope of judicial review – the question, as thorny then as it is now, of “jurisdiction” – and the principles governing the exercise of discretionary powers and the procedures to be respected by decision-makers. Only then, with this work of general exposition complete, did de Smith turn in Part 3 to the prerogative writs. What is immediately striking, even to the modern reader, is that remedies are addressed at the end of the book, not at the beginning. This even though the case law de Smith addressed in the other Parts of Judicial Review of Administrative Actionhad grown up around the prerogative writs. As one reviewer commented, “the bones of the subject are not principles but remedies, and they are extraordinarily loosely jointed”.[7] de Smith, clearly, disagreed. Resisting the temptation to develop a remedy-led account of the area, de Smith instead structured his book around general principles;[8] the “elucidation of principle” was his “hallmark”.[9]

As for quality, Judicial Review of Administrative Action is characterised by the clarity and concision of de Smith’s exposition of his subject-matter. For one thing, de Smith wrote at a relatively high level of abstraction, concerned to tease out general principles without becoming stuck in the mire of exegesis of reported cases; he avoided, as Oliver Hood Phillips observed, “[t]he common temptation to read too much into individual cases…”.[10] For another thing, de Smith wrote “with style as well as clarity”:[11] “The subject is clearly presented in attractive language which it is a pleasure to read”.[12] As Gabrielle Ganz remarked of the second edition: “Its depth of analysis, breadth of scholarship, unfailing accuracy and fluency of style are beyond praise”.[13]

Although Judicial Review of Administrative Action was widely reviewed and very well received, there were some sceptics. Professor Abel accepted that de Smith had rendered a “fine summary and appraisal of current English law”, having “opened the doors to all the closets and revealed the contents in all their present confusion” but lamented that “he has not straightened them up nor suggested how that might be done”.[14] The underlying issue here, however, was not so much that de Smith had failed to bring order to the chaos, but that there was so much chaos that bringing even a semblance of order to it was a significant contribution.[15] If anything, de Smith’s plaintive acknowledgement of the “striking inconsistencies in decided cases, absence of authority or judicial equivocation on some points”[16] served to distract from his considerable achievement in mapping out the scope of judicial review of administrative action and a set of general principles of administrative law. The better view is that de Smith’s task “was not just that of scribe but of sculptor and cabinet-maker, and with pretty unpromising materials at that”.[17]

Indeed, by the time the fourth edition appeared, de Smith’s seminal text was already being described as “a giant in its field”.[18] To appreciate the influence Judicial Review of Administrative Action exerted on the development of administrative law, it is best to start with one of the sceptical comments on the first edition.In his review Professor Jaffe of the Harvard Law School seemed flummoxed by the English approach to legal scholarship generally and to administrative law in particular:

In the United States there has been a pronounced emphasis, furthered by lawyer-practitioners, legal scholars, judges, and legislators, to work out a few general concepts to govern judicial review without regard to [prerogative writs] or the exact character of the administrative act in question. As a consequence reviewability and scope of review are not notably different whether the act be “legislative”, “administrative”, “ministerial” or “judicial”, or whether the proceeding be mandamus, certiorari, injunction, declaratory action, or simply “review”.[19]

Judicial Review of Administrative Action left Professor Jaffe cold. But subsequent developments demonstrated that, in fact, de Smith had produced a groundbreaking text. For just a few decades after its publication, Professor Jaffe’s criticism would already ring hollow. Whereas Lord Reid could safely say in the 1960s that England knew no developed system of administrative law, just twenty years later – the blink of an eye in common law terms – Lord Diplock confidently stated: “[T]he 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”.[20] There were, by then, the “general concepts” and “coherent framework” which Jaffe had found lacking.[21] And Judicial Review of Administrative Action played a key role in this transformation, not just in England but in the wider common law world.

As de Smith’s treatise teased out principles which were common to the remedies which had previously driven the development of the subject, common lawyers were able to free themselves from the shackles of the prerogative writs. It became possible, first, to conceive of the procedural reforms that swept the common law world in the 1960s, 1970s and 1980s and, second, to think of “administrative law” or “judicial review of administrative action” as a coherent whole.

The goal of procedural reform was “to substitute for [the prerogative writs] a single simplified procedure for obtaining all forms of relief”,[22] accomplished sometimes by rules of court (as in England and Wales, with the development of a new “Order 53”[23]) and sometimes by legislation (as in New Zealand and Australia[24] and the Canadian provinces[25]).  These reforms created a unified application for judicial review, abolishing the intricacies of the prerogative writs and (along with de Smith’s work) paving the way for the development, most notably from the 1980s onwards of a bespoke set of principles for judicial control of public administration. The emergence in the 20th century of the declaration as a remedy in administrative law cases should also be noted as a factor which contributed to the impetus for procedural reform. Unhindered by the technicalities of the prerogative writs, it was already clear in 1959 that “the advantages of the action for a declaration as an instrument of judicial review in administrative law are manifest”.[26] That courts began to deploy it with enthusiasm – most famously in Anisminic v Foreign Compensation Commission – suggested that the declaration could swallow the prerogative writs whole.

Once one appreciates the general background against which the wave of procedural reform washed over the common law world, one also comes to appreciate that the effect was to decouple judicial review remedies from the scope of the prerogative writs, allowing a reviewing court to  “grant any order or orders it considers appropriate” in the circumstances of a given case.[27]

This decoupling had more dramatic effects. Just as the abolition of the writ system in the late 19th century had the effect of allowing “tort” and “contract” to rise from the ashes of “trespass” and “assumpsit”, the demise of the prerogative writs meant that administrative law could no longer be organised around them. This is not to suggest that “tort”, “contract” or “administrative law” owe their very existence to procedural reforms. Nonetheless, with the procedural reforms eliminating or reducing the importance of the prerogative writs, thereby increasing demands for “internal coherence” of this area of legal doctrine,[28] it has become much more natural to speak of “administrative law” or “judicial review of administrative action” rather than of “the law of the prerogative writs”.

In recent decades, administrative law has blossomed as a result of judicial creativity. In the early 20th century, administrative action could be reviewed only in a narrow set of cases, where officials exercising statutory authority had determined, by a judicial process, the rights of an individual.[29] Yet by the mid-1980s, it was safe to say that any governmental decision affecting the rights, interests, property, privileges, or liberties of any person was reviewable by the courts to ensure the legality and rationality of the decision and the fairness of the decision-making process.[30] Lord Diplock’s comment about the transformation of administrative law was entirely justified. Where once administrative decision-makers could gaily err within jurisdiction[31] (especially when sheltered by a privative clause), now they must accord significant participatory rights to individuals whose legal position may be modified by their decisions,[32] which in turn are subject to searching review for the robustness of the legal analysis,[33] the evidentiary basis of the underlying findings[34] and the reasons given (sometimes as a matter of legal obligation[35]) in support of the conclusions.[36]

A neat way to appreciate the enduring significance of de Smith’s work is to peruse one of the most interesting and important recent scholarly publications on administrative law. In Vigilance and Restraint in the Common Law of Judicial Review,[37] Dean Knight uses the evolution of de Smith’s Judicial Review of Administrative Action to develop a schemata to better understand “the modulation of the depth of scrutiny” in administrative law.[38] As Knight explains, the first edition focused on the “scope” of judicial review: the use of the concepts of jurisdiction and the classification of functions as “legislative”, “administrative” and “judicial” to organise the law of judicial review of administrative action. Future editions emphasised, by contrast, the “grounds” and, latterly, “intensity” of judicial review. de Smith’s successors have shifted from the formalistic focus on “scope” in the first edition, to “explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors”,[39] and hinted at a fully “contextual” approach which is based “on an unstructured (and sometimes instinctive) overall judgement” about whether the impugned decision should be invalidated or not.[40] The power of Knight’s schemata lies in its ability to “capture the dominant methodologies operating in systems of judicial review at different times and in different places”.[41] As such, Judicial Review of Administrative Action not only laid the foundations for today’s law of judicial review of administrative action but its evolution tracks the development of, and helps readers to understand, contemporary law.

[1] Ian Holloway, “Judicial Review Redux” (1996) 24 Federal Law Review 391, at p. 392.

[2] Judicial Review of Administrative Action (Stevens & Sons, London, 1959), at p. v.

[3] Robson, Allen, Griffith and Street and later Wade.

[4] Judicial Review of Administrative Action (Stevens & Sons, London, 1959), at p. v.

[5] Robert F Reid, “Review” (1960) 38 Canadian Bar Review 432, at p. 432.

[6] See e.g. Enid Campbell, “Administrative Law” (1961) 3 Sydney Law Review 605, at p. 606; O Hood Phillips, “Reviews” (1960) 23 Modern Law Review 458; Lord Diplock, “Administrative Law: Judicial Review Reviewed” (1974) 33:2 Cambridge LJ 233, at p. 235.

[7] Robin L Sharwood, “Book Review” (1960) 2 Melbourne University Law Review 431, at p. 431. See similarly Enid Campbell, “Administrative Law” (1961) 3 Sydney Law Review 605, at p. 607.

[8] D G T Williams, “Book Reviews” (1974) 33 Cambridge Law Journal 324.

[9] Lord Woolf and Jeffrey Jowell, De Smith, Woolf and Jowell’s Judicial Review of Administrative Action, 5th ed. (Sweet and Maxwell, London, 1995), at p. viiii.

[10] O Hood Phillips, “Reviews” (1960) 23 Modern Law Review 458, at p. 459.

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

[12] A N Allott, “Reviews” (1959) 3 Journal of African Law 212, at p. 212.

[13]Judicial Review of Administrative Action” (1969) 32 Modern Law Review 107, at p. 107.

[14] Albert S Abel, “Judicial Review of Administrative Action” (1961) 14 University of Toronto Law Journal 129, at p. 137.

[15] See Gabrielle Ganz, “Judicial Review of Administrative Action” (1969) 32 Modern Law Review 107, at p. 107, describing de Smith’s attempts to “extract some principles from the chaos of policy decisions…”

[16] Enid Campbell, “Administrative Law” (1961) 3 Sydney Law Review 605, at p. 608. See also D G T Williams, “Book Reviews” (1974) 33 Cambridge Law Journal 324.

[17] Peter Wallington, “Book Reviews” (1981) 32 Northern Ireland Legal Quarterly 389, at p. 389.

[18] CL Vincenzi, “de Smith’s Judicial Review of Administrative Action” (1981) 15 Law Teacher 68.

[19] Louis Jaffe, “Book Review” (1961) 74 Harvard Law Review 636, at p. 636.

[20] Council of Civil Service Unions v Minister for the Civil Service, [1985] A.C. 374, at p. 407.

[21] Louis Jaffe, “Book Review” (1961) 74 Harvard Law Review 636, at p. 639.

[22] R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, at p. 638, per Lord Diplock.

[23] SI 1955/1977. A statutory footing was later created in the Senior Courts Act 1981.

[24] Judicature Amendment Act 1972 and Administrative Decisions (Judicial Review) Act 1977 (Cth) respectively.

[25] John Evans, “Judicial Review in Ontario — Recent Developments in the Remedies — Some Problems of Pouring Old Wine into New Bottles” (1977) 55 Canadian Bar Review 148.

[26] Judicial Review of Administrative Action at p. 407.

[27] Philip Joseph, Constitutional and Administrative Law of New Zealand 4th ed. (Thomson Reuters, Auckland, 2014), at p. 1147. As Lord Roskill commented in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, at p. 657:

…the changes thereby effected…were and were intended to be far-reaching. They were designed to stop the technical procedural arguments which had too often arisen and thus marred the true administration of justice, whether a particular applicant had pursued his claim for relief correctly, whether he should have sought mandamus rather than certiorari, or certiorari rather than mandamus, whether an injunction or prohibition, or prohibition rather than an injunction or whether relief by way of declaration should have been sought rather than relief by way of prerogative order. All these, and the like technical niceties, were to be things of the past. All relevant relief could be claimed under the general head of “judicial review,” and the form of judicial review sought or granted (if at all) was to be entirely flexible according to the needs of the particular case.

[28] Tarunabh Khaitan and Sandy Steel, “Theorising Areas of Law”, Social Science Research Network, October 4, 2019, at p. 7.

[29] R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. [1924] 1 KB 171, at pp. 204-205, per Atkin LJ; R v Legislative Committee of the Church Assembly, ex parte Haynes-Smith [1928] 1 KB 411, at p. 415, per Hewart CJ

[30] Lord Woolf of Barnes, “Droit Public – English Style” [1995] Public Law 57.

[31] R v Nat Bell Liquors [1922] 2 AC 128. See also [1910] 2 IR 695 (on which see generally, Costello, “R (Martin) v Mahoney: The History of a Classical Certiorari Authority” (2006) 27 Journal of Legal History 267). See further DM Gordon, “The Relation of Fact to Jurisdiction” (1929) 45 Law Quarterly Review 459; “The Observance of Law as a Condition of Jurisdiction” (1931) 47 Law Quarterly Review 386 and 557.

[32] See e.g. Re Pergamon Press Ltd [1971] Ch 405; Dellway Investments v National Asset Management Agency [2011] IESC 4; [2011] 4 IR 1.

[33] See e.g. Anisminic v Foreign Compensation Commission [1969] 2 AC 167.

[34] See e.g. Bugdaycay v Home Secretary [1987] AC 514; Paul Craig, “Judicial review and anxious scrutiny: foundations, evolution and application” [2015] Public Law 60.

[35] See e.g. Baker v Canada (Minister for Citizenship and Immigration) [1999] 2 SCR 817.

[36] See e.g. Re JR55 [2016] UKSC 22, at para. 30.

[37] (Cambridge University Press, Cambridge, 2018).

[38] Ibid., at p. 1.

[39] Ibid., at p. 1.

[40] Ibid., at p. 2.

[41] Ibid., at p. 6,

This content has been updated on June 13, 2020 at 15:56.