How can we best make sense of the legal doctrine relating to judicial review as an area of law? Why is judicial review available on particular grounds (illegality, unreasonableness, natural justice and so on), and on the exercise of particular powers? How (if at all) is the legal doctrine coherent? How (for instance) do the different grounds of review fit together? Why is there a widespread assumption that judicial review reflects moral values? Why are only some actions of some bodies subject to judicial review?
In a new paper, I try to answer these questions by offering an interpretive theory of judicial review. By an interpretive theory, I mean a theory which aims to make sense of – interpret – common law judicial review doctrine by constructing the best internal rationale for the law. This ‘delegation theory of judicial review’ draws on the idea that administrators are the delegates of either Parliament or the Crown. I argue that this idea is deeply embedded in public law and that unpacking this idea yields a simple and intuitive theory of judicial review.
The delegation theory can be expressed very simply:
- administrators are delegates of Parliament or the Crown;
- as delegates of Parliament or the Crown, administrators have significant moral duties;
- judicial review holds administrators to their moral duties qua delegates of Parliament or the Crown.
This post shows how the theory makes sense of a core feature of judicial review doctrine, the grounds of review. The appeal of the delegation theory is apparent once we appreciate the different aspects of delegation and the duties they entail for delegates.
I. Aspects of delegation
Three different aspects of delegation play a significant role in judicial review; each of them entails particular duties for the delegate. These different aspects of delegation may be illustrated through three ideal types of relationship of delegation: mandate, effectuate and expressive delegation.
A. Mandate delegation
Sometimes you might enlist a delegate to perform certain extremely well-defined actions on your behalf. You might ask her to sign this contract, purchase that house at that price or cast a vote for you by proxy for a particular candidate at a particular election.
The ideal mandate delegate is automaton-like: they follow highly specified instructions within their mandate, and exercise very little discretion. If it is not clear how they should perform a task, they should go back to the delegator and seek further instruction. Under no circumstances should they do anything which is not specified in their mandate.
B. Effectuate delegation
Effectuate delegates are different. These delegates are meant to do more than follow very detailed instructions laid out in their mandate. They are meant to effectuate – or give concrete form – to the general or abstract purposes of the delegator.
If you lack financial expertise, you may ask an expert to invest on your behalf. You may say to them: ‘don’t take any risks, make sure I have enough to retire comfortably in 2030 and make sure the investments are ethical’. The ideal effectuate delegate will independently ‘colour in’ the detail of your general and open-ended instructions. They will exercise independence and practical wisdom in interpreting and giving effect to your abstract preferences.
C. Expressive delegation
Sometimes delegation is less about getting something done and more about expressing the delegators’ character or state of mind. For instance, if a foreign royal dies, the government might send an ambassador to attend the funeral to express national sympathy. The ambassador, as an expressive delegate, must successfully express this sympathy, goodwill and condolences.
These three ideal types are usually different aspects of the same relationship of delegation and, taken together, they help us understand judicial review.
II. Delegation and Grounds of Review
A. Mandate delegation
Take review on the ground of ultra vires, that is, on the ground that the administrator has exceeded her powers. This ground of review reflects the delegate’s duty not to exceed the powers granted to her by her mandate.
Similarly, review for relevance of considerations reflects the delegate’s duty to consider or exclude considerations which her mandate requires her to consider or exclude.
But the bases of the other grounds of review – natural justice, reasonableness, legitimate expectations etc – still remain mysterious. I argue that this is because the other aspects of delegation I have mentioned have been overlooked. When we understand the duties associated with the effectuate and expressive aspects of delegation, the other grounds of judicial review make sense.
B. Effectuate delegation
An effectuate delegate should give effect to the abstract purposes of the delegator. So the most fundamental duty of an effectuate delegate is to use her powers to further, or at least not thwart, the delegator’s purpose. This reflects judicial review for proper purposes: administrators – like other delegates – should use their powers to further the purpose for which they are granted.
But in order for the delegate to further the delegator’s purpose, she has to make a decision on which means – which actions – achieve this purpose. Thinking about how a delegate should decide on the means to achieve this purpose helps make sense of many of the other grounds of judicial review.
Consider an example of a wealthy philanthropist who asks her delegate to ‘improve road safety’ without saying anything about how this purpose is to be served. What should the delegate do?
First, the delegate has to identify and compare all plausible means of achieving the purpose, e.g. public safety messages, targeted advertising or more road crossings. If the delegate is going to compare these different means of achieving the philanthropist’s purpose, she needs to be exposed to evidence for and against them. A good way of being exposed to these considerations is to hear about them from those who will be affected by her decision. So we might say that a delegate ought to hear about considerations that weigh for and against a decision from those affected (as hearings bring to light considerations they may have otherwise overlooked). This makes sense of judicial review for lack of an adequate hearing.
Second, in order to identify and compare all plausible means to achieving the delegator’s purposes, it is not enough that the delegate be exposed to the considerations that count against and in favour of the means, the delegate must also be open to these considerations. She should not disregard them because she has pre-judged the question.
This duty of openness is another way of expressing judicial review for fettering discretion: Administrators (like other delegates) should not overlook considerations because they have bound themselves to follow a policy inflexibly.
Third, in order to choose means well-suited to achieving the delegator’s purpose, the delegate will also have to guard against errors, and make sure that her decision is based on good evidence. For instance, she should not overlook significant considerations that are relevant to the decision. She should weigh the considerations accurately, and not be biased in how she weighs the considerations.
In short, effectuate delegates (including administrators):
- should not make decisions based on errors;
- should make decisions based on, and only on, considerations relevant to that decision; and
- should not make decisions based on a biased response to the considerations.
This makes sense of judicial review for errors of law and fact; for irrelevant considerations and (partly) for bias.
Finally, in order for a delegate to choose the right means by which to achieve the delegator’s purposes, she should respond to considerations appropriately: she should not for instance, treat considerations which count against a particular means as if they favoured that means. If the high cost of traffic lights counts against using them to improve road safety, the delegate should not treat the high cost like it counts in favour of using traffic lights. Put another way, the delegate should decide as the relevant reasons dictate, i.e. reasonably.
So effectuate delegation explains many grounds of review. Some of the others make sense when we consider the expressive aspect of delegation
C. Expressive delegation
Recall that expressive delegates express the character or state of mind of the delegator. If Parliament or the Crown wished administrators to express something, what would they most want administrators to express?
However else Parliament or the Crown wants to be seen, they would surely want to be seen as even-handed and fair, as trustworthy and reliable, and as solicitous and respectful of those it governs. These are necessary conditions for any political authority to be perceived as legitimate.
Consider bias. An administrator is not meant to even appear to be biased. The expressive role of the administrator explains why the rule prohibits appearance of bias and not just true bias – the administrator needs to represent the even-handedness, impartiality and fairness of the delegator.
Consider again judicial review for lack of hearing. Others have argued that hearings express respect for the persons affected; I think this is right and it fits with the view of administrators as expressive delegates.
Finally, consider legitimate expectations. Administrators must express the trustworthiness of Parliament or the Crown. If an administrator has invited a citizen to trust that they will act in a particular way by making a promise, following a practice, or creating a policy, the administrator must act to demonstrate her worthiness of that trust.
This post has tried to show that the grounds of review make sense if they are understood as reflecting the moral duties associated with the three aspects of delegation described here. An upcoming post on this blog further supports the delegation theory by showing how the idea of delegation makes sense of the scope of judicial review.
Farrah Ahmed is a Professor at Melbourne Law School, the University of Melbourne. This post draws on a paper published in the Modern Law Review. The definitive version of the paper and full citations are available here.