A Defence of Administrative Law Doctrine, Part II.C, The General Principles of Judicial Review

This is an extract from my paper “A Defence of Administrative Law Doctrine

Professor Allan’s third proposition is that there are no general principles of judicial review. Indeed, the very proposition that general principles give administrative law a “genuine sense” is “actually a contradiction in terms”.[1] As a “body of doctrine”, administrative law lacks “any genuine content”,[2] because a “contextual and disputable judgment” is necessary in all cases:[3] “judicial definition of a statutory (or other) provision, however persuasive or authoritative as a matter of general understanding, can simply determine the result of future cases: new cases, involving unforeseen or novel circumstances, will arise to test (and so further elucidate) the true meaning or scope of the relevant provision”.[4]

Professor Allan insists that any general principles cannot displace the contextual and moral analysis that are central to the judicial role in public law cases: “the relevant judgments of weight or deference are wholly dependent on context: the law-policy distinction cannot be identified abstractly…Each case will turn on a balance of public and private interests, the court deferring to executive judgment just in so far as, and no further than, such deference seems appropriate in all the circumstances”.[5]

The notion of “contextual and disputable judgment” needs to be unpacked. Professor Allan invokes the notion to suggest that in administrative law cases, context is everything: the disposition of a case requires contextual analysis which abstract doctrines neither displace nor influence; an assessment of legality, rationality or procedural propriety requires the judge to determine whether it is “appropriate” to find a decision unlawful given “all the circumstances”.

Here it is worth pointing out that when I think about the “general principles” of administrative law, I have a large body of principles in mind, much more detailed than the ‘heads’ of legality, rationality and procedural propriety.[6] Legality encompasses the principles relating to the delegation of authority and fettering, which contain hard-edged rules forbidding delegation and the elimination of discretion, as well as the doctrinal superstructure relating to jurisdictional error, error of law, and relevancy and propriety. Under rationality would come the principles of substantive review and, perhaps, legitimate expectation. Procedural propriety contains the principles of bias (including rules relating to automatic disqualification and legislative authorisation) and, as we have seen in Part II.B(iii), the particular criteria attached to particular procedural rights. But these ‘heads’ do not comprise the totality of the general principles of administrative law: as noted below, the procedural requirements arising from the appeal/review distinction also need to be considered; in addition, the (admittedly highly contextual) scope of review and the occasionally prescriptive principles about remedies need to be considered. There is no doubt that some of these areas are “dominated by a contextual approach”.[7] But some of them contain detailed rules which significantly constrain the scope for judicial judgement. 

No one could sensibly deny that a judge hearing a judicial review application must exercise judgment in disposing of the application or, in turn, that contextual factors will bear on this judgment. But it does not follow from the requirement to exercise judgement that the judgement is an “all-the-circumstances” assessment of legality, rationality or procedural propriety in a given case. To pick up a thread from the previous section, procedural fairness cases involve the application of settled normative criteria relating to particular procedural rights. Respect for the right to notice requires disclosure of “the essential facts and findings alleged” as well as the provision of “a reasonable opportunity of presenting [a] response to that notice”;[8] cross-examination is required where necessary to provide a “fair opportunity” of commenting or contradicting adverse evidence;[9] and legal representation should be accorded where the proceedings are so important and complex that an individual would otherwise be unable to make his or her case effectively.[10] As I have remarked, “[s]ome judicial judgement will be required in determining the answers to the more specific questions relating to particular procedural rights, but judges are certainly not roving along a spectrum…”, free to make a general contextual judgement about the fairness of the underlying process.[11] The judgement to be made is, in fact, constrained by doctrine. In other areas, such as rationality review or the scope of judicial review, judicial judgement is less constrained and context more important. But this does not mean that all cases always turn on context, such that there cannot be a “genuine sense” to the general principles of administrative law.

There is more. I argued in Part II.B that legality, rationality and procedural propriety do provide a meaningful doctrinal framework which constrains judges. Beyond legality, rationality and procedural propriety, however, are a host of other important principles based on the appeal/review distinction which bear upon judicial application of legality, rationality and procedural propriety.

Professor Allan observes that even “[t]he distinction between appeal and review is … necessarily one of degree: its existence is a function of the latitude accorded the public authority in respect of any particular decision”.[12] To the extent the appeal/review distinction tracks the legality/merits distinction, Professor Allan’s observation is astute: courts can review decisions very intensively, with little deference, without necessarily providing an appeal; in Australia, where the legality/merits distinction is hardwired into the Constitution, the scope and intensity of judicial review have nonetheless varied over the years, with differing “latitude” accorded as the judges protest that they are not reviewing the “merits” of administrative decisions.[13]

However, there is more to the appeal/review distinction than the unhelpful proposition that a “review” should not become an “appeal”. The appeal/review distinction is historically entrenched.[14] It is inherent to the process of judicial review. When a court is asked to assess the lawfulness of a decision, it does so based on its scrutiny of a paper record, assisted by the arguments of counsel.[15] The most important constraint on judicial decision-making in administrative law cases is that judges must base their decisions on limited material. There are no witnesses, no live evidence, no cross-examinations, no discovery. Even where – as rarely occurs – someone is cross-examined on the content of an affidavit, the permissible range of questions is limited, much more than in a civil trial; and even allowing for the tendency to disclose larger amounts of material in judicial review cases, what is put before a judge is much less extensive than the material made available in an action between two private parties. Given that a judge cannot make decisions on material not properly before her, the appeal/review distinction operates as a significant constraint in administrative law cases, precluding a vast range of outcomes.

Related procedural restrictions further limit what a judge may do when reviewing administrative action. A judge has no role at all when an application for judicial review is made out of time (though admittedly may have discretion to entertain the application regardless).[16] Procedural exclusivity precludes judges from considering the lawfulness of administrative action where it is dressed up as a “claim for judicial review with a thin pretence to a private wrong”.[17] Where an individual has not exhausted alternative avenues of appeal, reconsideration or review, judicial review remedies are not available. She who seeks judicial review must also have standing, which is generously accorded in contemporary times[18] but withheld in some scenarios, especially where a stranger to a process seeks to upset carefully balanced interests.[19]

The appeal/review distinction is, therefore, not a chimera. It exerts significant influence on what judges can do in judicial review cases. They do not have free rein to inquire in an abstract sense into the legality, rationality and procedural propriety of administrative action but rather must focus their attention on the lawfulness of that action as revealed by the record against the backdrop of the arguments of the parties. A priori, a vast array of conclusions is precluded in administrative law matters, by virtue of the procedural principles of judicial review of administrative action.

In my view, therefore, the “genuine sense” of administrative law is the exercise of judicial judgement in individual cases, with due regard for context, within a doctrinal superstructure that constrains the scope of the judgement the judge may legitimately exercise.

[1] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 435.

[2] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 431.

[3] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 441.

[4] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 444.

[5] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at pp. 437-438.

[6] Personally, I prefer to organise the principles differently, but nothing in this paper depends on personal predilections about typology. For my preferred approach, see Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), distinguishing institutional structures; procedural fairness; substantive review; remedies; restrictions on remedies; and scope of judicial review.

[7] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), at p. 254.

[8] State (Gleeson) v Minister for Defence [1976] IR 280, at p. 296.

[9] TA Miller Ltd v Minister for Housing and Local Government [1968] 1 WLR 992, at p. 995.

[10] R v Secretary of State for the Home Office, ex parte Tarrant [1985] QB 251.

[11] Paul Daly, “The Language of Administrative Law” (2016) 94 Canadian Bar Review 519, at p. 540.

[12] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 441.

[13] See e.g. Mark Aronson, “The Growth of Substantive Review: The Changes, their Causes and their Consequences” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds, Public Law Adjudication in Common Law Systems: Process and Substance (Hart, Oxford, 2016).

[14] See especially de Smith, “The Prerogative Writs” (1951) 11 Cambridge Law Journal 40, at p. 48; “Wrongs and Remedies in Administrative Law” (1952) 15 Modern Law Review 189, at p. 206.

[15]See e.g. R v Titchmarsh (1914) 22 DLR 272, at pp. 277-278; R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, at p. 357.

[16] See e.g. R v Stafford Justices [1940] 2 KB 33.

[17] Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585, at para. 78.

[18] See e.g. R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.

[19] See e.g. R (Chandler) v Secretary of State [2009] EWCA Civ 1011; Irving Shipbuilding Inc v Canada (Attorney General) 2009 FCA 116; [2010] 2 FCR 488.

This content has been updated on October 11, 2022 at 15:48.