Convergence and Divergence in English and Canadian Administrative Law III: What Next

Part 3. Part 1 is here and Part 2 is here.

In Canada the creative tension between the rule of law and democracy – constitutional principles recognised by the Supreme Court of Canada[1] – provides a crucible in which judicial review doctrine is formed. There is no ready equivalent in English administrative law, certainly none at present that would attract the consensus that Canadian constitutional principles enjoy.  Nonetheless, there have been attempts to mark out the boundaries of substantive review in ways that may also be helpful in setting limits to ranges of rational outcomes. In an influential essay, Jeffrey Jowell set out two general reasons for deference, which he termed “constitutional competence” and “institutional competence”.[2] Similarly, Mark Elliott has argued that beneath the vocabulary of Wednesbury and proportionality lie normative values, “a network of deeper considerations that determine what doctrinal instruments should be brought to bear in the circumstances of the case, and precisely what form those instruments should take given the particularities of context”.[3] In terms of constitutional competence, the identity of the decision-maker might have an effect on the range of rational outcomes. For instance, “in a democracy a person charged with making assessments of this kind should be politically responsible for them. Ministers are politically responsible for the consequences of their decision. Judges are not”.[4] Similarly, it has been said, “[t]he formulation and the implementation of national economic policy are matters depending essentially on political judgment” such that the relevant decisions “are for politicians to take” and to be debated “in the political forum of the House of Commons”.[5] As a result, discretionary, policy-infused decisions taken by democratically elected and accountable politicians fall to be assessed against a broad range of rational outcomes. And as in Canada, broad statutory language (which has the imprimatur of Parliament) can empower decision-makers, making the range of rational outcomes relatively broader.[6] But constitutional competence is not a one-way ratchet. Statutory language will, when couched in objective terms, constrain decision-makers and narrow the range of rational outcomes. And when rights or important individual interests are in play, the range of rational outcomes will be narrower.[7]

In terms of institutional competence, administrative decision-makers often have greater expertise relative to courts in respect of the subject matter falling within their jurisdiction. As Lord Slynn of Hadley put it in R v Chief Constable of Sussex, ex parte International Trader’s Ferry, where the Chief Constable had struck a balance in allocating police resources to quell disruptive protests, deference was due: “He knows through his officers the local situation, the availability of officers and his financial resources [and] the other demands on the police in the area at different times”.[8] Similarly, a minister has access to the “collective knowledge, experience and expertise of all those who serve the Crown in the department”,[9] which helps to explain why ministerial decisions on matters within departmental expertise are typically accorded significant deference by the courts. In such circumstances, the range of rational outcomes will be broader. Polycentricity,[10] according to which problems “cannot be resolved independently and sequentially” but are “interdependent and a choice from one set of alternatives has implications for preferences within other sets of alternatives”,[11] will also contribute to a broader range of rational outcomes,[12] as will complex situations that require evaluative judgement on the part of decision-makers.[13] But on more strictly legal issues involving concepts with which judges are familiar, or at least no less expert than the primary decision-maker, the range of rational outcomes will be narrower.

Conceiving of ranges that are broader or narrower depending on circumstances involves an analytical exercise which is already familiar to English administrative lawyers. It is very similar to the operation of the “anxious scrutiny” principle, whereby “[t]he more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable…”[14] It is also similar to the context-sensitive application of the rules of natural justice, whereby the content of procedural fairness increases in proportion to the importance of the decision to the individual concerned.[15]And an English public lawyer might derive badges of unreasonableness from the administrative law cases: for instance, one could say that failure to give sufficient weight to a fundamental right,[16] or inconsistent treatment of two similarly situated individuals, are badges of unreasonableness,[17] and that arbitrary or illogical decisions bear badges of unreasonableness.[18]

Thus English courts and commentators might usefully draw from the Canadian experience with reasonableness in order to better understand the concept of a range of rational outcomes. It may even be possible to expand the application of the concept beyond the domain of review of discretionary decisions. Take, for instance, the grounds of review of improper purposes and relevant considerations. In England, these have traditionally been treated as distinct from Wednesbury unreasonableness in the sense of a decision-maker who has acted irrationally: it is for the courts to determine propriety of purpose and relevancy of consideration.[19] If reasonableness is a “sliding scale” dependent on context, we can surely say that statutory purposes and statutory considerations form part of the context, limiting the range of potential outcomes.[20] Indeed, the same could be said of review for error of law: sometimes the statutory language will create a wide range of rational outcomes;[21] on other occasions the range will be narrower, perhaps containing only one outcome.

Already, the English courts have signalled a limited retreat from the advances widely thought to have been accomplished by Anisminic – in Cart the UK Supreme Court did not employ the concept of jurisdictional error to determine how to control alleged illegalities committed by the Upper Tribunal and preferred to rely on pragmatic considerations to limit the scope of review.[22] Subsequently Lord Carnwath suggested in Jones (Caldwell) v First Tier Tribunal[23] that the distinction between law and fact – upon which close judicial control of administrative interpretations of law logically depends – does not accomplish significant analytical work. Rather “the division between law and fact in such classification cases is not purely objective, but must take account of factors of ‘expediency’ or ‘policy’”, including “the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other”.[24] The suggestion is noteworthy not only because it presages a future in which contextual considerations play a role in determining the appropriate level of judicial scrutiny of alleged errors of law (as they do in Canada) but also because it underscores how contingent change in administrative law doctrine can be. The decisions in Cart and Jones arose from cases involving the new tribunal structure introduced by the Tribunal, Courts and Enforcement Act 2007, which has required English courts to grapple with the limitations of jurisdictional error and the importance of context in determining the intensity of judicial review of administrative action. And the author of the noteworthy comments in Jones was, as Sir Robert Carnwath, the first Senior President of Tribunals appointed under the 2007 Act; in other words, due to historical happenstance, a jurist well placed to appreciate the effects of the 2007 Act found himself involved in a case raising important questions about jurisdictional error and was able to deliver an important reasoned judgment.

[1] Dunsmuir at [27]. See also Reference re Secession of Quebec [1998] 2 SCR 217.

[2] “Of Vires and Vacuums: the Constitutional Context of Judicial Review” [1999] Public Law 448 at 451.

[3] “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification” in Mark Elliott and Hanna Wilberg eds., The Scope and Intensity of Substantive Judicial Review: Traversing Taggart’s Rainbow (Oxford: Hart, 2015), 61 at 65.

[4] R (Lord Carlile) v Secretary of State for the Home Department [2015] AC 945 at [32] [Lord Carlile].

[5] R v Environment Secretary, ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521 at 597, per Lord Bridge of Harwich.

[6] South Yorkshire Transport.

[7] R v Home Secretary ex p Khawaja [1984] AC 74; R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 at 531; R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696 at 748-749; R v Ministry of Defence, ex parte Smith [1996] QB 517 at 554; Pham at [108].

[8] [1999] 2 AC 418 at 430.

[9] Bushell v Environment Secretary [1981] AC 75 at 95, per Lord Diplock.

[10] Lon Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 3553.

[11] Anthony Ogus, Regulation: Legal Form and Economic Theory (Oxford: Clarendon Press, 1994) at 117.

[12] See e.g. R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898 at 906.

[13] See e.g. (Lord Carlile) at [32]; Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] 2 WLR 509 at [50].

[14] R v Ministry of Defence, ex parte Smith [1996] QB 517, at 554, per Sir Thomas Bingham MR.

[15] See e.g. McInnes v Onslow-Fane [1978] 1 WLR 1520 at 1529; R v Home Secretary, ex parte Fayed [1998] 1 WLR 763.

[16] See e.g. Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 and R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720, both involving interference with interests in property.

[17] See e.g. Re L [2003] 2 AC 633.

[18] See e.g. Champion v Chief Constable of Gwent [1990] 1 WLR 1.

[19] Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.

[20] See e.g. Rebecca Williams, “Structuring Substantive Review” [2017] Public Law 99.

[21] South Yorkshire Transport.

[22] See generally Christopher Forsyth, “‘Blasphemy against Basics’: Doctrine, Conceptual Reasoning and Certain Decisions of the UK Supreme Court” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray eds., Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart, 2016), 145.

[23] [2013] 2 AC 48 [Jones]. Lord Hope gave the leading judgment for a five-judge panel, but Lord Carnwath’s “brief comment on the course of the proceedings, having regard also to the new framework established under the Tribunals Courts and Enforcement Act 2007” (at [27]) attracted the accord of three other judges.

[24] Jones at [46], citing Robert Carnwath, “Tribunal Justice, A New Start” [2009] Public Law 48, at 63-64.

This content has been updated on October 31, 2017 at 14:55.