Executive Decision-Making and the Courts

Revisiting the Origins of Modern Judicial Review

TT Arvind, Richard Kirkham, Daithí Mac Síthigh, Lindsay Stirton, TT Arvind, Richard Kirkham, Daithí Mac Síthigh, Lindsay Stirton

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509930340
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

In this book, leading experts from across the common law world assess the impact of four seminal House of Lords judgments decided in the 1960s: Ridge v Baldwin, Padfeld v Minister of Agriculture, Conway v Rimmer, and Anisminic v Foreign Compensation Commission. The 'Quartet' is generally acknowledged to have marked a turning point in the development of court-centred administrative law, and can be understood as a 'formative moment' in the emergence of modern judicial review. These cases are examined not only in terms of the points each case decided, and their contribution to administrative law doctrine, but also in terms of the underlying conception of the tasks of administrative law implicit in the Quartet. By doing so, the book sheds new light on both the complex processes through which the modern system of judicial review emerged and the constitutional choices that are implicit in its jurisprudence. It further reflects upon the implications of these historical processes for how the achievements, failings and limitations of the common law in reviewing actions of the executive can be evaluated.

Part I

Setting the Scene

1

Introduction: Judicial Review and the Quartet

TT ARVIND, RICHARD KIRKHAM, DAITHÍ MAC SÍTHIGHAND LINDSAY STIRTON^*

I.INTRODUCTION

A.The Quartet as a Formative Movement

The essays in this volume arose out of the 2018 Annual Seminar of the Society of Legal Scholars, held to mark the fiftieth anniversary of three seminal cases on administrative law decided by the House of Lords in 1968: Padfield v Minister of Agriculture,¹ Conway v Rimmer,² and Anisminic v Foreign Compensation Commission.³ These three decisions, taken together with the slightly earlier case of Ridge v Baldwin⁴ decided in 1963, are often described as the ‘Quartet’ of cases which played a key role in the emergence of modern judicial review. By demonstrating that judges could take on a broader role in policing executive decision-making, they not only created a base upon which subsequent cases could build, but also provided implicit support for the proposition that it was constitutionally appropriate for judges to take on a more assertive role in policing the executive than in the immediately preceding decades.⁵

Against the backdrop of that anniversary, this volume uses the Quartet as the organising theme for a collection of essays which, cumulatively, seek to subject the modern system of judicial review to critical scrutiny. The structure of the volume and the position the Quartet occupies within it were influenced by the editors’ view that the Quartet was a formative moment in the development of judicial review.⁶ In the social sciences, formative moments are periods of time in which the institutional structures of a polity are reconfigured or reshaped in response to social or political pressures with which they do not deal satisfactorily (or, at least, are perceived as not dealing satisfactorily). Formative moments occur when these transient pressures result in lasting institutional shifts which become the new normal for that polity. Studying a period of change as a formative moment looks beyond existing institutional structures to consider the context in which they emerged, why those shifts came to be accepted as the new normal, and the complex legacies the specificities of that moment have left on modern institutions.⁷

Although our editorial approach was influenced by the theory of formative moments, this is not a volume of essays applying that theory, nor is it primarily focused on historically studying the institutional changes that produced judicial review (although history plays an important role in several chapters). Our purpose was not to produce a volume where all chapters adopted a single approach, and the essays in this volume adopt a broad range of perspectives. Peter Cane has recently suggested that modern public law scholarship contains three broad families of approaches.⁸ The first, a development of the traditional common law method, focuses on locating individual decisions in wider contexts which, depending on the scholar, may be doctrinal, social, or oriented towards making the law ‘as internally consistent and coherent as reasonably possible’.⁹ The second, the ‘philosophical’, evaluates law with reference to its contribution to a larger project, such as deciding how one ought to behave. The third, the ‘social-scientific’ or empirical, ‘treats legal processes as social phenomena to be described and explained’.¹⁰ Each of these families of approaches is represented in this volume.

Nevertheless, the idea that the Quartet was a formative moment has exercised a significant influence over the selection of topics and themes in this volume. There are a number of issues, such as the political legitimacy of judicial review, with which this volume does not engage. Debates about political legitimacy of their nature tend to be articulated in timeless terms. The focus of this volume, in contrast, is on the temporal and the contextual. Rather than asking whether modern judicial review is legitimate according to an externally determined standard, it asks what made it appear legitimate and acceptable during the 1960s, and whether the system that emerged out of that period remains fit for purpose in dealing with the challenges that face judicial review today. The volume, to put it differently, seeks to shed new light on the circumstances and problems which led to the emergence of the modern system of judicial review in the formative period of the 1960s, and their relationship to the factors that drive the use of judicial review today. The chapters in this volume are, accordingly, united by their focus on three sets of issues: the manner in which the law set out in the Quartet was shaped by the context in which the cases arose; the influence the Quartet subsequently exercised over judicial review; and the adequacy of the law that emerged from the Quartet in dealing with the issues and concerns that face judicial review today.

B.The Structure of this Volume

The chapters in this volume are divided into six parts. The first, introductory, part consists of two chapters looking at the broader picture. In this first chapter, we set out the volume’s ambition, the issues it considers, and the broader themes that emerge from the chapters taken as a whole. In chapter two, Lord Reed, President of the Supreme Court, reflects on the judge-made and judge-led nature of the Quartet’s development of judicial review through a discussion of the judicial career and juristic views of Lord Reid. Lord Reid not only delivered an expertly reasoned and influential judgment in each of the four cases that constitute the Quartet, but also played a leading role in moving away from the declaratory theory of the law. Drawing on this background, Lord Reed presents a nuanced and persuasive account of the necessity for judges to take on the task of developing the law, but also the challenges judges face when they go beyond the incremental.

Part II of this volume puts the focus on the four cases that make up the Quartet. There are four chapters in this part, each examining one of the cases in the Quartet in detail. The chapters follow the chronological order of the cases. Robert Thomas opens the Part with a discussion of Ridge v Baldwin (chapter three), followed by a chapter by Maurice Sunkin on Padfield (chapter four), a chapter by TT Arvind and Lindsay Stirton on Conway v Rimmer (chapter five), and a chapter by David Feldman on Anisminic (chapter six). All four cases have been the subject of extensive commentary. Nevertheless, these chapters break new ground in their study of the cases. The chapters set the four cases in the context of the law, politics and society of their time. They look not just at the law as it stood in the 1960s, but also to debates, issues and controversies that were salient at the time and formed part of the contextual background to the cases. In doing so, some of the papers draw on sources, such as archival records, which have not previously been examined or analysed in this context.

Parts III and IV build on this analysis. A key theme running through the chapters in these two parts is the distinction between the doctrinal impact of the cases and their symbolic value. In symbolic terms, the influence of the Quartet has been dramatic. Over time, they came to jointly stand for the proposition that all administrative discretion was limited by law, and that there was no administrative decision upon the legality of which the courts could not rule. The influence of these cases on actual legal rules, and their usefulness in answering the type of legal issues that come before courts today, however, is both harder to assess and more controversial. Questions have been asked about whether subsequent cases remained true, or even could have remained true, to the principles the Quartet sought to embed within the law. Concerns have also been raised about whether the Quartet’s approach to disaggregating the legal and political dimensions of executive action is defensible, and whether it deals adequately with the complex mesh of needs generated by the modern administrative state.

The three chapters in Part III take their starting point in the legal needs and juridical approaches underlying present-day judicial review across the UK. As they show, judicial review has taken on a range of additional tasks since the Quartet. At the same time the context in which it operates has changed, in some ways becoming more controversial and in others more socially and politically embedded. These shifts have altered and reshaped the practical effect and evaluative significance of the positions taken in the Quartet. This reshaping makes it necessary to ask whether the law should move beyond the legacy of the Quartet, or whether the balance between the structure the Quartet provides and the flexibility it leaves is adequate to deal with the challenges that arise in the present day. The chapters present a complex and nuanced set of answers to these questions, but they cumulatively strongly suggest that judicial review will need to move beyond the confines of the Quartet if it is to respond effectively to modern legal needs.

Sarah Nason (chapter seven) uses empirical data to highlight the implicit tension between the constitutional role of judicial review, and the everyday legal needs that underpin the actual use of the action of judicial review. As she shows, reactions against the former have had a disproportionate impact on the latter, to the extent that there is now a real need to investigate whether expanding other remedies such as tribunals is a more efficacious way of providing access to justice in the individual case than judicial review. Paul Bowen (chapter eight) analyses the relationship between the Quartet’s principles and approach, the approach that underlay the development of common law rights in the 1990s, and the more recent changes that have been brought about by the Human Rights Act 1998. He argues that they reflect very different, and frequently contrasting, impulses, and that the modern system depends on the co-existence and simultaneous operation of the common law and the HRA. Joe Tomlinson (chapter nine) examines the jurisprudence of ouster clauses and argues that notwithstanding the symbolic value of the case law from Anisminic to Privacy International, in reality the cases only make a marginal contribution to limiting the ability to exclude persons from judicial review. Other mechanisms of exclusion are now far more potent than ouster clauses, and public law jurisprudence must move beyond a focus on ouster clauses if it is to address this problem.

If Part III focuses on the need for a deeper reconceptualisation, Part IV looks at how devolution has already begun to lead to such a reconceptualisation, at least in the local context of Scotland, Wales and Northern Ireland. Each of these devolved jurisdictions has faced issues that are specific to them. Scotland and ...