The Rise of Facts in Public Law I: Factual Assessments in Judicial Review of Administrative Action

In a draft book chapter I am working on with co-author Kseniya Kudischeva, we discuss the increased importance of factual assessments in public law. Here is the first of four substantive parts. Comments and thoughts welcome.

Common law judges have traditionally been highly reluctant to interfere with factual assessments made by administrative decision-makers.

This reluctance flowed in large part from the nature of judicial review of administrative action, devolved from the ‘prerogative writs’ developed long before the advent of the contemporary administrative state, to permit the King’s courts in London to control the activities of inferior tribunals (and to fend off rivals such as the ecclesiastical courts).[1] Certiorari, which facilitated the quashing of legally erroneous inferior tribunal decisions, was entirely a paper proceeding involving the transmittal of the record of the inferior court into one of the King’s courts,[2] whereupon the record would be scrutinized for legal error.

Without a trial or viva voce evidence of any type, judicial fact-finding would be very difficult and, indeed, unnecessary, as the facts of the matter would be contained in the record of proceedings. Moreover, too-close scrutiny of factual assessments would cause judicial review of administrative action to resemble an appeal: hence the standard rules that judges may not second-guess the weight assigned by administrative decision-makers to relevant factors,[3] that as long as there is sufficient evidence to support them, an administrative decision-maker’s factual assessments should stand[4] and that simply making a wrong finding of fact is not in and of itself an error of law.[5]

This is not to say that an administrative decision-maker’s factual assessments were off limits, as far as judicial review of administrative action was concerned. So-called ‘jurisdictional’ facts have always been closely scrutinized by reviewing courts.[6] Where an administrative decision-maker’s authority to make a particular decision is contingent on the objective existence of a state of affairs, de novo judicial review is appropriate to ensure that the decision-maker remains within the boundaries of its authority. Judicial review for jurisdictional error of fact helped to ensure – to take a well-known example – that rent tribunals in North London could not declare a ‘fair rent’ in respect of the Albert Hall.[7] Furthermore, at least some factual assessments could be interfered with, where there was no evidence to support them[8] or where conclusions were so unreasonable that no reasonable decision-maker could have come to them;[9] and egregious errors in relation to factual matters could give rise to a remedy.[10]

Although many centuries have passed since the prerogative writs were first developed, and the writs have been abolished and/or sidelined since procedural reforms in the mid-20^th century, the contemporary judicial review procedure still bears their hallmarks.[11] A judicial review is not an appeal;[12] judicial fact-finding is rare;[13] and deference is paid to administrative decision-makers’ factual assessments.[14]

Nonetheless, in recent decades, things have changed.[15] In the British Isles, adherence to European Union law and the European Convention on Human Rights has required greater scrutiny of factual matters, to ensure effective remedies and to provide sufficiently robust oversight of decision-making structures lacking high levels of independence and impartiality. Across the common-law world, freedom of information legislation, judicial doctrines imposing a ‘duty of candour’ on governments, statutory reason-giving requirements and access (by administrative decision-makers) to sophisticated technology has facilitated the creation of extremely detailed records to support reasoned decisions. The walls of non-justiciability have been pushed back significantly, with, moreover, individuals and interest groups alike capable of demonstrating standing to challenge potentially unlawful decisions. And the law of judicial review has evolved away from narrow grounds of review – Wednesbury unreasonableness, error of law, error of fact, irrelevant considerations and so on – to a focus on the intensity of review, greater or lesser in any given case depending on the interplay of a variety of contextual factors. In the contemporary judicial review exercise, much depends on whether the administrative decision-maker has provided cogent reasons, based in evidence in the record, to support its decision.

Quite why things have changed in the way they have is a complex matter. Whatever the reason, the result is that judicial review of administrative action has increased in breadth and depth, with more matters subject to more searching judicial oversight. And there is no barrier to judicial review of administrative decision-makers’ factual assessments. The judicial role is to evaluate the cogency of the reasoned decisions given in support of administrative action, in terms of (depending on the jurisdiction and the issue) reasonableness, rationality or proportionality: performing this role may require judicial scrutiny of an administrative decision-maker’s factual assessments, to ensure that these are adequately reasoned and grounded in the evidence placed before the court. Facts are not at all off limits.

These recent developments have created challenges for the law of judicial review of administrative action, in procedural and substantive terms. Procedurally, there has been pressure to expand the scope of the record in judicial review proceedings,[16] and although the phenomenon has largely escaped academic attention courts have come to rely more and more on expert evidence to shed light on the reasonableness or proportionality of administrative action.[17] Indeed, the trend in most jurisdictions is towards developing more detailed records of decision, supplemented now by expert evidence tendered by way of affidavit and subjected to cross-examination in the presence of the reviewing judge. These procedural developments might well have, however, an effect on the substance of the law: with more detailed records and reasons, it is natural for judges to develop standards of reasonableness, rationality and proportionality which focus attention on the cogency of reasoning and adequacy of evidence.[18]

Substantively, the judicial turn to scrutiny of cogency and adequacy pushes judges up against the appeal/review distinction, as there is a risk that courts will end up substituting their judgement for that of administrative decision-makers, transforming review for legality into an appeal on the merits. A variety of doctrinal devices, such as materiality and deference, are available to restrain judges from trespassing into the merits. For example, an individual seeking judicial review of a decision will need to demonstrate, in terms of materiality, that there was a serious error which affected the outcome of the decision-making process,[19] and courts have insisted that when it comes to factual assessments a high degree of deference is due to administrative decision-makers[20] – in Canada, where the reasonableness of a factual assessment is in issue, the individual seeking judicial review must demonstrate that the decision-maker fundamentally misapprehended the facts.[21] However, the very need to develop such devices reflects the tension between recent developments in judicial review of administrative action and the historical foundations of the courts’ jurisdiction to oversee public administration. Such is life in the Age of Facts.

[1] The classic telling of the tale is SA De Smith, “The Prerogative Writs” (1951) 11 Cambridge Law Journal 40.

[2] R v Titchmarsh (1914) 22 DLR 272, 277-278. 

[3] Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, 780.

[4] R v Nat Bell Liquors [1922] 2 AC 128, 151-152.

[5] Waterford v Commonwealth (1987) 163 CLR 54, 77. See similarly Ryanair Ltd v Flynn [2000] 3 IR 240, 264; Wandsworth London Borough Council v A [2000] 1 WLR 1246, 1255-1256.

[6] See e.g. R v Shoreditch Assessment Committee, ex parte Morgan [1910] 2 KB 859, 880.

[7] See e.g. Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), 224.

[8] R v Nat Bell Liquors [1922] 2 AC 128, 151-152.

[9] Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, 228-230.

[10] See e.g. Secretary of State for Education and Science v Tameside Borough Council [1977] AC 1014, 1047; R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330, 345; E v Secretary of State for the Home Department [2004] QB 1044, 1071.

[11] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), chapter 1.

[12] See e.g. Michalak v General Medical Council [2017] UKSC 71; [2017] 1 WLR 4193, [21]-[22].

[13] See e.g. R v Fulham, Hammersmith and Kensington Rent Tribunal [1951] 2 KB 1, 11.

[14] See e.g. Vavilov v Canada (Citizenship and Immigration) 2019 SCC 65, [125]-[126].

[15] I develop the points in this paragraph at length in “Facticity: Judicial Review of Factual Error in Comparative Perspective” in Peter Cane, Eric Ip, Herwig Hoffman and Peter Lindseth eds., Oxford Handbook of Comparative Administrative Law (Oxford University Press, Oxford, 2020) and “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2020) 100 Supreme Court Law Review (2d)279.

[16] See e.g. Benjamin Oliphant and Lauren Wihak, “Dunsmuir and the Scope of Admissible Evidence on Judicial Review: Principled Limitations or Path Dependency?” (2019) 69 University of Toronto Law Journal 31.

[17] See e.g. Joe Tomlinson, Katy Sheridan and Adam Harkens, “Judicial review evidence in the era of the digital state” [2020] Public Law 740.

[18] See e.g. Paul Daly, “Updating the Procedural Law of Judicial Review of Administrative Action” (2018) 51 University of British Columbia Law Review 705.

[19] See e.g. MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.

[20] See e.g. R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60; [2015] 1 AC 945 [32], [58], [99], [112]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, [104].

[21] Vavilov v Canada (Citizenship and Immigration) 2019 SCC 65, [125]-[126].

This content has been updated on April 26, 2022 at 16:25.