By any measure the breadth and depth of substantive judicial review of administrative action have increased remarkably in recent decades. It is interesting to ask why this has happened. In a typically interesting and trenchant contribution, my friend Jason Varuhas attributes recent changes to judicial review procedure to a substantive turn to rights review and systemic review.
As Professor Varuhas observes, courts in judicial review proceedings have become progressively more hands on:
Courts increasingly determine disputed questions of fact (albeit determination of contested primary facts still remains uncommon relative to ordinary procedure); are increasingly open to disclosure, oral evidence and expert evidence, at least in certain contexts; and there have been significant changes in the volume and type of documentary evidence considered by reviewing courts.
There are likely many reasons why these changes are occurring. But a central reason is that the practice and procedure of review are adjusting to significant changes in the substantive law of judicial review; as in any system a change in one part will have knock-on effects on other parts of the system. Two changes in the substantive law of judicial review in particular have precipitated a changed approach: a turn to rights, and a turn to systemic review. These two changes are my focus here. They are fundamental to understanding the changes that are occurring in the law and practice of evidence and fact-finding on review, and squarely illustrate the interdependence of substantive and procedural law. But I do not, of course, discount other possible drivers of change, including spill-over effects from practice in specialist tribunals, the rise of complex ‘commercial’ or ‘regulatory’ judicial reviews, and warmer judicial attitudes to review for factual error (eg E).
One can only applaud academic recognition of the dynamic relationship between the substantive law of judicial review — legality, rationality and procedural propriety — and the procedural law of judicial review. As I observed in “Updating the Procedural Law of Judicial Review of Administrative Action” (2018) 51 University of British Columbia Law Review 705, “the relationship between the procedural and the substantive in the common law tradition is dynamic and unpredictable”, such that changes to the procedural law of judicial review are likely to create pressure for reform of the substantive law of judicial review and vice versa.
However, there are reasons to doubt the significance of ‘rights’ in producing recent procedural changes.
First, one of the key developments in the procedural law of judicial review in England and Wales has been the imposition of a ‘duty of candour’ on respondents to judicial review claims. As was stated crisply in Huddleston:
This development [i.e. the remedy of judicial review and the evolution of a specialist administrative or public law court] has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration. … The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why…Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hand.(R v. Lancashire County Council, ex parte Huddleston  2 All ER 941 at p. 945)
Note the citation. This canonical statement of the law dates to the mid-1980s, long before the introduction of the Human Rights Act 1998.
Second, when the House of Lords was asked to increase the scope of discovery in human rights cases, it did so only reluctantly. In Tweed v. Parades Commission for Northern Ireland  UKHL 53,  1 AC 650, their Lordships appreciated that the proper application of a proportionality test could require additional documentary evidence in some situations, leading to “a more flexible and less prescriptive principle” for disclosure (at para. 32, per Lord Carswell). However, they nonetheless emphasized that disclosure would not be automatic (at para. 3, per Lord Bingham) and perhaps even “exceptional” (at para. 56, per Lord Brown): “[e]ven in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice” (at para. 32, per Lord Carswell).
Third, the growth in substantive review is not just an English affair. Similar trends can be observed in Australia, Canada, Ireland and New Zealand. This significant degree of global convergence requires a global explanation capable of accounting for very different jurisdictions, some of which (New Zealand) have, broadly speaking, no justiciable rights instruments and others of which adopted rights instruments at different times (Ireland, 1937; Canada, 1982; England and Wales, 1998).
Fourth, the only in-depth study (of which I am aware) of whether rights are a ‘driver’ of substantive review is found in Janina Boughey’s monograph, Human Rights and Judicial Review in Australia and Canada: The Newest Despotism (Hart, 2017). Her conclusion is that rights have not played the key role which is typically attributed to them: significant changes in the law of judicial review have occurred both in Australia and in Canada even though these two jurisdictions are on opposite ends of the spectrum as far as judicial enforcement of fundamental rights is concerned.
As for systemic review, I would note that the classic Canadian cases relating to the application of the reasonable apprehension of bias test to decision-making structures within administrative agencies long pre-date the more recent empirical turn in Canadian human rights law. The decisions in IWA v. Consolidated‑Bathurst Packaging Ltd.  1 SCR 282 and 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool)  3 SCR 919 date from the 1990s. The move to create massive factual records capable of demonstrating systemic violations of rights protected by the Canadian Charter is of much more recent provenance, traceable to the 2011 Insite decision on supervised injection sites (Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44,  3 SCR 134) and subsequent high-profile decisions on prostitution (Canada (Attorney General) v. Bedford 2013 SCC 72,  3 SCR 1101) and assisted suicide (Carter v. Canada (Attorney General) 2015 SCC 5,  1 SCR 331).
In a forthcoming article prepared for the 2020 Osgoode Constitutional Cases Conference, “Vavilov and the Culture of Justification in Contemporary Administrative Law”, I offer some thoughts about the recent growth in the breadth and depth of judicial review of administrative action, which may also shed light on the procedural changes observed by Professor Varuhas.
I set out in the article to explain the rise of the “culture of justification” in administrative law. I identify the culture of justification with an increased emphasis on reasoned decision-making, demonstrated expertise, responsiveness and contextualism? Recognizing that it is impossible to provide a conclusive explanation of the rise of the culture of justification, I note that it is by contrast perfectly feasible to develop a hypothesis. Broadly speaking, the hypotheses relating to the rise of the culture of justification can be placed on a spectrum running from exogenous at the one end to endogenous at the other.
Exogenous factors would treat the culture of justification in administrative law as epiphenomenal, a manifestation of broader cultural, economic, social or political forces. It could be a product of the post-Renaissance rise of rationality, which is not easily compatible with top-down assertions of authority. Similarly, the idea that governmental action having an effect on individual interests must be justified (and is unlawful if not) might be thought to be cohesive with the post-World War II emergence of human rights law. Relatedly, the underlying theory of popular democracy, which emerged in its fullest form across the Western world only in the last century, is that individuals are entitled to have a say in how they are governed, carrying with it the implication that governmental decisions adverse to individuals’ interests ought to be justified. General declines in levels of social trust, or trust in authority, might also explain increased demands for justification. And, as at least one leading judge has suggested, the decline in the perceived effectiveness of the accountability of the executive to the legislature led courts to occupy the “dead ground” vacated by political actors (R v. Secretary of State for the Home Department, ex parte Fire Brigades’ Union  2 AC 513, at p. 567, per Lord Mustill).
Not being an historian, political scientist, philosopher or sociologist, I am not as interested in exogenous factors as I am in endogenous factors. Two appear to me to be relevant: the development of context-sensitive, general principles of administrative law; and the more expansive reasons and records on which administrative decisions are nowadays based. My hypothesis is that there is a symbiotic relationship between these two factors.
The first is the development, since the 1960s and 1970s of general principles of administrative law. What we now call “administrative law” or “judicial review of administrative action” began to develop, many centuries ago, in the form of the writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus. These writs were originally designed, by judges sitting in the King’s common law courts in Westminster, to control the actions of so-called “inferior” courts around the country. Today’s centralised court system was then in the earliest stages of its development; most justice was administered locally or in ecclesiastical courts. Over the centuries, the common law courts extended the scope of the prerogative writs to cover a wider and wider range of bodies, generally reasoning by analogy to justify issuing writs against decision-makers which were not, strictly speaking, “inferior” courts. While the prerogative writs were used to control the actions of an array of administrative decision-makers, there was no “administrative law” as such. As with the common law generally prior to the reforms effected by the Judicature Acts in the late nineteenth century, there were no general principles but various, discrete bodies of law relating to the individual writs: there was a “law” relating to certiorari, prohibition and so on but there was no coherent body of principles which, as a whole, could be described as “administrative law”. In the same way as there was until the end of the 19th century no “law of tort” or “law of contract” but rather “laws” of diverse writs of action, “administrative law” as a body of principles did not exist.
Academic, political and judicial efforts had combined to produce, by the end of the 20th century, a recognizable body of principles called “administrative law”, pursuant to which administrative decision-makers were required to act lawfully, rationally and procedurally fairly. Given that administrative law was no longer restrained within procedural shackles, there was no boundary to the development of these principles. Moreover, the casting off of the procedural shackles has been accompanied by the casting off of conceptual shackles: the classifications, divides and distinctions which characterized earlier eras have gradually been removed, with contextual analysis to the fore. In the case-law, references abound to the importance of context: the duty of fairness is entirely context-sensitive; as is the duty to consult; reasonableness review is heavily influenced by context, as are judicial responses to claims of non-justiciability; and in applying the law of standing, judges are exhorted to take a purposive and flexible approach to a multitude of factors.
When judicial review analysis is contextual (rather than categorical), the focus of a reviewing court will invariably be on whether the decision as a whole meets the relevant standard of reasonableness or fairness, which depends on a holistic assessment of the decision. No avenues of analysis or lines of inquiry are categorically blocked off. With context to the fore, the primary question for the judge becomes whether the decision is justifiable, in terms of reasonableness or fairness. The ultimate question, to be assessed holistically, will be whether a given “exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness’” (Canada (Citizenship and Immigration) v. Vavilov 2019 SCC 65, at para. 14, citing the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 Canadian Journal of Administrative Law & Practice 171, at p. 174). That the judge’s determination is contextual does not mean it is a purely subjective assessment of whether the decision should stand or fall. A judge conducting a judicial review is hemmed in by a variety of objective considerations: institutional constraints, constitutional constraints and prior jurisprudence applying the concepts of reasonableness and fairness to other administrative decisions. Nonetheless, I suggest, the development of a culture of justification is much easier where the law of judicial review of administrative action is context-sensitive and does not depend on categorical analysis. Accordingly, my hypothesis is that the decoupling of administrative law from the prerogative writs and the rise of contextual analysis facilitated the rise of a culture of justification.
Second, and very much relatedly, the reasons and records of administrative decisions reviewed by judges are now much more extensive than in previous eras. In Anisminic, the claimant was given a one-page letter stating – not explaining – the Foreign Compensation Commission’s conclusion (David Feldman, “Anisminic v. Foreign Compensation Commission : In Perspective” in Maurice Sunkin and Satvinder Juss eds., Landmark Cases in Public Law (Hart, 2017)). Modern records are voluminous; modern reasons extensive. Administrative proceedings are, increasingly, subject to the open-court principle; access to information legislation imposes high standards of transparency on administrative decision-makers; there are many statutory obligations to give reasons for decisions; considerations of fairness between individual and institutional litigants drive the publication on decision-makers’ websites of scores of decisions; and technological advances facilitate the production of reasons even in respect of large numbers of applications “by employing information technology, using decision templates, drop-down menus and other software” ( R (Agyarko) v. Secretary of State for the Home Department  1 WLR 823, at para. 71, per Lord Reed). And while courts are not permissive when it comes to what may be put in the record placed before the reviewing courts, they are certainly much less fastidious than they were in previous eras.
The upshot is that a judge conducting a judicial review hearing will have a large volume of material on her desk, reasons running potentially into the hundreds of pages, supported quite possibly by an even more extensive record. It is only natural for courts reviewing reasoned decisions to focus on the internal coherence of the reasons given, interrogating whether they do indeed justify the decision given. A judicial review judge is likely to consider that she has the capacity to test whether the decision-maker’s conclusions follow from their premises: there is no special expertise required to assess whether a decision is logical and rational, or whether it is justifiable in view of the relevant legal and factual constraints. Where there were no reasons to scrutinize, as in previous eras, it was much more difficult for judges to conclude that an administrative decision should be quashed.
I would push the point further still. Where reasons were never given for administrative decisions, the flaws in those decisions or in public administration generally were concealed from the judicial eye. Once reasons came to be given more or less as a matter of course, public administration was on display, warts and all. As soon as judges became aware of shortcomings in public administration (or even of the potential for shortcomings), was it not inevitable that they would develop more exacting standards of reasonableness and fairness to hold administrative decision-makers to account? It is not, I hypothesize, more exacting standards of judicial review which have caused more expansive reason-giving and record-generation; it is expansive reason-giving and record generation which have caused more exacting standards of reasonableness and fairness (see also Michael Taggart, “Deference, Proportionality, Wednesbury”  New Zealand Law Review 423, at pp. 463-464).
In summary, my hypothesis for the rise of the culture of justification rests on two inter-related factors which are largely internal to administrative law: the development of context-sensitive general principles of judicial review of administrative action; and the expansion of reasons for administrative decisions and the accompanying records for judicial review. Professor Varuhas concludes his excellent post by commenting: “the more intensely courts scrutinise the substance of administrative action, then the more evidence will come before courts, and the more evidence before courts then the more courts shall be drawn into the substance of administrative action – so on and so forth”. I agree with him about the dynamic relationship between procedure and substance, but suggest that causality might well run in the opposite direction.
Paul Daly is an Associate Professor in the Faculty of Law (Common Law Section), University of Ottawa, where he holds the University Research Chair in Administrative Law & Governance. He maintains the widely-read blog, Administrative Law Matters.
(Suggested citation: P. Daly, ‘The Culture of Justification in Administrative Law’, U.K. Const. L. Blog (6th July 2020) (available at https://ukconstitutionallaw.org/))