The Inexorable Rise of Judicial Review
In Prospect Magazine, I have a piece entitled “The inexorable rise of judicial review“, discussing the UK’s Independent Review of Administrative Law. Here is an extract, discussing the complex background to the Review:
We should begin by noting that the period of development since the middle of the 20th century has been marked by procedural reforms with little political salience but great practical significance. To begin with, countries around the common law world (including Australia, Canada, England, Ireland and New Zealand) abolished the so-called “prerogative writs,” with impressive Latin names such as certiorari and mandamus. In time-honoured common law fashion these writs, first developed in the 16th century by the King’s courts in London to control local tribunals, were retrofitted to the rising administrative state. But the retrofit was uneasy, making procedural reforms necessary. By sweeping away the technicalities associated with the ancient writs, these reforms had the unintended effect of permitting judges to develop a body of general principles of administrative law. It is unsurprising that these general principles have since their untethering from the prerogative writs developed such impressive scope.
Moreover, since the 1980s, the English courts have imposed a “duty of candour” on ministers and public bodies defending judicial review claims. Long before the Human Rights Act, judges were insisting that the government must place its cards face up on the table in administrative law cases. With the decline of the potency of Crown privilege—which allowed the government to refuse to disclose sensitive information—occasioned by another 1960s classic, Conway v Rimmer, the result was that there was more for judges to get the teeth of the new general principles of administrative law into.
Allied to these developments, ministers and public bodies have generated more and more detailed reasons for their decisions. In part, the courts have required reasons in a wider range of cases than heretofore but mostly parliament has imposed thoroughgoing reason-giving requirements (sometimes pursuant to EU law obligations). In addition, modern technology, with its drop-down menus and templates, has facilitated the production of detailed reasons for all sorts of decision great and small.
The upshot is that we now have a body of general principles of administrative law which judges can apply to ever-more detailed decisions. The increased intrusiveness of administrative law—on view not just in the UK but in Australia, Canada, Ireland and New Zealand—may be largely attributable to technical and procedural developments.
For the purposes of the review, this technical and procedural toothpaste would be very difficult to put back in the tube. Tackling the duty of candour and Crown privilege might go some way to checking the growth of administrative law but doing so would be controversial—“what is the government trying to hide?”—and hardly a guarantee of success given the complex background described above.
Read the rest here.
This content has been updated on September 28, 2020 at 17:38.