Leading Works in Public Law: de Smith’s Judicial Review of Administrative Action — “The Legacy”
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 last section, on “The Legacy”
The Legacy
Whereas the fourth edition of Judicial Review of Administrative Action was, essentially, an update of the third,[1] the fifth edition represented a significant break with the past – a “profound reordering”, in the authors’ words.[2] It appeared with the title de Smith, Woolf and Jowell’s Judicial Review of Administrative Action. Although its progenitor’s name appears in the title, the lead authors have developed a different view of the subject. In a perceptive review of the fifth edition, Professor Holloway observed that de Smith did not quite appreciate “the magnitude of the social, political and legal upheavals going on around him” but that the editors of the fifth edition had come “not just to accept, but to embrace the new administrative law”.[3] As the editors of the most recent edition observe, whereas de Smith described judicial review as sporadic and peripheral,[4] “[t]oday, however, the principles developed through judicial review have become central to all of public administration insofar as those principles seek to enhance both the way decisions are reached and the quality of the decisions made”.[5] In the most recent edition, the title has been further shortened, to de Smith’s Judicial Review, to take account of the fact that the principles set out in the text now apply to the exercise of public functions generally, not simply administrative action.[6]
By allowing administrative lawyers to see the whole of the wood, not just the individual trees, de Smith’s Judicial Review of Administrative Action facilitated procedural reforms and provided a broad framework within which a principled approach to “administrative law” could be developed. As Professor Birkinshaw commented:
Professor de Smith had the eye and the insight to see, and by his mastery impose, order and coherence in the seamless and confusing denouement of the common law principles of judicial review. He brought life and comprehension to the big picture where there had been confusion, minor cameos, and a comatose judiciary. Among English legal texts, it justly stands as a colossus.[7]
Sometimes, it is only with the benefit of hindsight
that such truths can be appreciated. It might also be said that de Smith
did not live to see the fruits of his labour, as they only ripened in the
decades after his death.
[1] Professor Evans described his “primary purpose” as the incorporation of recent developments “within the existing fabric of the book”, a goal which could be achieved “without radical alteration to either the substance or the organisation of the third edition”. John M Evans, De Smith’s Judicial Review of Administrative Action, 4th ed. (Stevens & Sons, London, 1980), at p. v.
[2] 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. vii.
[3] Ian Holloway, “Judicial Review Redux” (1996) 24 Federal Law Review 391, at p. 393. Emphasis original. See also Lord Diplock, “Administrative Law: Judicial Review Reviewed” (1974) 33:2 Cambridge LJ 233.
[5] 8th ed., at para. 1-1013. See also Patrick Birkinshaw, “Book Review” (2019) 25 European Public Law 137, at p. 139: “today’s senior UK judges as this edition shows, generally display a commitment not to any political allegiance or inherent conservatism, but to rational and supportable bases for the exercise of power, maintenance of the rule of law and protection of human rights in the forum of principle”.
[6] 8th ed., at para. 1-013.
[7] Patrick Birkinshaw, “Book Reviews” (2009) 15 European Public Law 279, at p. 279.
This content has been updated on October 27, 2021 at 14:54.