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Judicial Review in England and Wales: a Constructive Interpretation of the Role of the Administrative Court

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Judicial Review in England and Wales: a Constructive Interpretation of the Role of the Administrative Court TITLE: JUDICIAL REVIEW IN ENGLAND AND WALES: A CONSTRUCTIVE INTERPRETATION OF THE ROLE OF THE ADMINISTRATIVE COURT Sarah Marie Nason University College London PHD 1 DECLARATION OF AUTHENTICITY ‘ I, Sarah Marie Nason confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Signed… ………………………….. Date…15 October 2014…………………………….. 2 ABSTRACT In this thesis I construct an interpretation of judicial review in England and Wales from the ground up based on an analysis of social practice in the Administrative Court. I argue that whilst judicial review provides a forum for debates about constitutional values and rights, and the inter-institutional balance of power between different branches of state, it is still primarily concerned with doing justice for individuals in relatively non-complex cases. Both in highly contested and technical claims with broader implications, and in cases turning largely on their own facts, justice is done by way of ordinary common law reasoning and specifically by assessing whether the initial decision-maker has taken relevant considerations (including moral considerations) into account, and excluded irrelevant considerations. My first central argument is that some existing interpretations of judicial review display a lack of appreciation of the social facts of litigation and legal practice, whilst others are based on significant misconceptions about these facts. My second central argument is against the scholarly tendency to over- emphasise the production and refinement of conceptual doctrinal tests at the expense of addressing the contested nature of the moral values at stake in the practice of judicial review as a whole and in individual cases. My third central argument is for my own interpretation which both fits with and morally justifies social practice. On this interpretation judicial review is about individual justice, as opposed to jurisdiction (ultra vires) or justification. I conclude that my unorthodox categorisation of the grounds of review, constructivist approach to judicial reasoning (based in part on institutional creativity), and deeper examination of relevant social facts, could form the prologue to a post culture of justification account of judicial review. 3 ACKNOWLEDGMENTS With immeasurable thanks to my supervisor George Letsas, to Stephen Guest, Maurice Sunkin and Thomas Watkin. I am also grateful for the support of Administrative Court officials, especially the Administrative Court IT Manager, Fiona Day, without whom the empirical aspects of this research would not have been possible. Mae'r diolch mwyaf yn mynd i fy nheulu; i fy ngŵr Gethin Thomas, i Lyn a John Thomas, ac i fy rhieni Sue ac Alan Nason. Yn bennaf oll i mu merch brydferth Anwen, yr wyf yn gobeithio un diwrnod bydd yn mor falch ohonof fel yr wyf am ei. 4 TABLE OF CONTENTS Introduction……………………………………………………………………..9 Chapter One: The Purposes and Values of Judicial Review…………………..49 1.1 The meaning of judicial review.……………………………………….49 1.2 What is a constitution?...........................................................................53 1.3 The rule of law and the value of legality…………….………………...59 1.4 Democracy, equality and liberty………………………………………68 1.5 Authority and expertise………………………………………………..79 1.6 Legal justice and legal rationality v’s administrative justice and administrative rationality………………………………………………86 1.7 Public interest and common good……………………………………..93 1.8 The Administrative Court and a core of judicial justice………………99 Chapter Two: Constructive Interpretation………….………………………...101 2.1 Legal theory and empirical analysis: the argument for separation………………………………………………………...…..103 2.2 Rationality and empiricism…………………………………………..106 2.3 Positivism………………………...…………………….…………….108 2.4 Constructive interpretation…………………………………………...110 2.5 Socio-legal research: Social scientific positivism, interpretivism, and constructivism………...........................................................................120 2.6 The methodology of this thesis………………………………………130 2.6.1 Specific methodology………….……………………………………..137 2.6.1.1 Administrative Court data analysis…………………………………137 2.6.1.2 Surveys……………………………………………………………...138 2.6.1.3 Interviews and Workshop………………….………………………..140 Chapter Three: Historical Context…………………………………………...141 3.1 The King’s Bench as predecessor to the Administrative Court……...143 3.2 Modern constitutions……………………….………………………...150 3.3 The ‘dark ages’ of administrative law?................................................152 5 3.4 The rise of administrative law………………………………………..160 3.5 The AJR and procedural exclusivity…………………………………169 3.6 Public and private law, rights and wrongs, and more reforms……….172 Chapter Four: An Operative Interpretation of Administrative Court Judicial Review - Caseloads and Inter-institutional Competence…………………….184 4.1 Spaghetti Junction, the ‘reformation’, and fragmentation…………....186 4.2 The (in)significance of the Administrative Court’s caseload?.............189 4.3 An ‘asylum and immigration court with knobs on?’………….……...193 4.4 Types of Administrative Court claim……….………………………..198 4.5 The ‘tribunalisation’ of judicial review…………….………………...203 4.6 Administrative Court AJRs and individual grievances: Specific topics………………………………………………………….……....220 4.7 The permission lottery…………….………………………………….225 4.8 An operative interpretation of (Administrative Court) judicial review part one - Caseloads and inter-institutional competence……………………………………….…………………..233 Chapter Five: An Operative Interpretation of Administrative Court Judicial Review - Community Justice………………………………………………...237 5.1 Common law community justice and ‘Regionalisation’……………..237 5.2 ‘Community-based’ public law………………………………………240 5.2.1 Total outside London receipts………………………………………..240 5.2.2 The scale of judicial review and population……………………….…243 5.2.3 Key Topics of AJR claims…………………………………………...247 5.2.4 Asylum and immigration…………………….……………………….249 5.3 Legal specialisation and the purposes of judicial review…………….253 5.3.1 Solicitors…………………………….………………………………..257 5.3.2 Counsel………………………………….……………………………263 6 5.4 Claimants in AJRs: judicial review as community justice?.................264 5.5 Litigants in Person (LIP)……………………………………………..265 5.6 Defendants………………………….………………………………...270 5.7 An operative interpretation of (Administrative Court) judicial review part two - community-justice………………………………………...271 5.8 An operative theory of (Administrative Court) judicial review as individualised justice……....................................................................274 Chapter Six: Operative Reasons for Deciding in Administrative Court Judicial Review - Part One…………………………………………………………...278 6.1 Methodology…………………………………………………………280 6.2 The ‘grammar’ of judicial review……………………………………283 6.3 Procedural impropriety………………………………….……………284 6.4 Illegality and irrationality…………………………………………….288 6.5 Mistake……………………………………………………………….290 6.6 Ordinary common law statutory interpretation………………………298 Chapter Seven: Operative Reasons for Deciding in Administrative Court Judicial Review - Part Two……...…………………………………………..313 7.1 ‘Discretionary impropriety’ or relevant/irrelevant considerations…...313 7.2 Breach of ECHR Protected Right and/or Equality Duty……………..329 7.3 Constitutional principle / constitutional allocation of powers……….335 7.4 Conclusions of the operative case law analysis……………………...340 Chapter Eight: The Target Interpretation and Judicial Rationality…………..342 8.1 Individualised justice…………………………….…………………...343 8.2 The ‘rainbow of review’……………………………….……………..344 8.3 Variable intensity factors…………………………………………….349 7 8.4 A different order of factors, bi-furcated or tri-furcated review………351 8.5 Uncertainty…………………………………………………………...360 8.6 The ‘organic’ approach, a target interpretation of judicial rationality…………………………………………………………………….366 8.7 Balance……………………………………………………………….373 8.8 Individualised justice……………………………….………………...377 Chapter Nine: Concluding Remarks…………………………………………383 BIBLIOGRAPHY……………………………………………………………399 REPORTS/CONSULTATION PAPERS…………………………….………402 TABLE OF CASES………………………………………………………….403 TABLE OF LEGISLATION…………………….…………………………...408 TABLE OF FIGURES……………………………………………………….410 8 Introduction In this thesis I construct an interpretation of judicial review in England and Wales from the ground up based on an analysis of social practice in the Administrative Court.1 I argue that whilst judicial review provides a forum for debates about constitutional values and rights, and the inter-institutional balance of power between different branches of state, it is still primarily concerned with ordinary common law statutory interpretation and doing justice for individuals in relatively non-complex cases. Both in highly contested and technical claims with broader implications, and in cases turning largely on their own facts, justice is done by way of ordinary common law reasoning and specifically by assessing whether the initial decision-maker has taken relevant considerations into account, and excluded irrelevant considerations. My first central argument is that existing interpretations of judicial review display a lack of appreciation of the social facts of litigation and legal practice, or are based on misconceptions about these facts. My second central argument is against the scholarly tendency to seek descriptive conceptual solutions to what are in effect interpretive questions of value; this tendency has led to over-complication
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