The orthodoxy in English administrative law circles is that ouster clauses are unlikely ever to be effective. The underlying logic of the majority of the House of Lords in the landmark case of Anisminic v Foreign Compensation Commission [1969] 2 AC 147 is that an ouster clause does not protect an unlawful decision from judicial […] Read more

There are some recent empirical studies of deference in administrative law that may be of interest to readers, some on Canada and one on England and Wales. In “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555, Robert Danay tests the hypothesis (advanced by […] Read more

In a remarkable set of concurring reasons in E.T. v. Hamilton-Wentworth District School Board 2017 ONCA 893, Lauwers JA (with the support of Miller JA) attacks the methodology set out by the Supreme Court of Canada in Doré v Barreau du Québec [2012] 1 SCR 395 and Loyola High School v Québec [2015] 1 SCR […] Read more

In Dover District Council v CPRE Kent [2017] UKSC 79, Lord Carnwath offered some important observations on the duty to give reasons in administrative law. The underlying issue involved an application for planning permission in the Kent Downs, an Area of Outstanding Beauty. Against the advice of its professional advisers, the local authority granted the […] Read more

Many readers will be interested by this new paper by Sunstein and Vermeule, “The Morality of Administrative Law“: As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of […] Read more

Fear not, fellow Canadians, I have not forsaken judicial review of administrative action in the Great White North. The difficulty, as I set out in my paper “The Signal and the Noise“, is that most Supreme Court of Canada decisions on administrative law are significant only for the substantive areas of law they address and […] Read more

This post follows on from my post on “Jurisdictional Error and Administrative Law Values“… There have been many formulations of Wednesbury unreasonableness over the years. For present purposes, however, we can take Lord Greene MR’s description – “a decision…so unreasonable that no reasonable authority could ever have come to it” – as encapsulating the essence […] Read more

Michalak v General Medical Council [2017] UKSC 71 is an interesting case, involving both a narrow point of statutory interpretation and broad issues about the nature of judicial review of administrative action. The narrow point concerned s. 120(7) of the Equality Act. Where a complaint relating to discrimination by a qualifications body “may, by virtue […] Read more

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 […] Read more

Part 2! This is a long post. Those familiar with the details of recent developments in England and Canada should skip to the last section, “Explaining Convergence”. For Part I, see here. The period of post-Anisminic divergence had by the 2000s created two markedly different systems of judicial review of administrative action. Since then, however, […] Read more