In Understanding Administrative Law in a Common Law World, Paul Daly provides an account of four values of judicial review: individual self-realisation; good administration; electoral legitimacy; and decisional autonomy. These values are not presented as a monolithic, all-encompassing theory of administrative law – which Daly argues does not exist. Instead, Daly invites theorists to refocus our gaze on the case law. He draws on accounts of judicial review in Australia, Canada, England and Wales, Ireland, and New Zealand to demonstrate that his four principles influence the content of judicial review, at least in the preponderance of cases presented in this book.
It is hard to disagree with this assertion. Daly’s account clearly demonstrates how these values run through case law. The values are sufficiently abstract as to be capable of a range of specific interpretations in different legal systems. These values are pluralist, both complementary and in tension. There is no one unifying theory as to how the different values should be balanced, although this is often resolved through their specific application to the facts. Is this a strength or a weakness of Daly’s account and, if a weakness, how can this be remedied?
Academics in England have had to spend a lot of time recently analysing the scope and justification of judicial review. The Independent Review of Administrative Law, and the Government’s response to its proposals, provided an array of views as to whether, as currently applied in England and Wales, judicial review was justified, or had indeed crossed the divide between law and politics. Do Daly’s four values provide a means of reconciliation? It may be possible to unite around the values of individual self-realisation, good administration, electoral legitimacy, and decisional autonomy. Where divisions would arise, however, would be as to the specific conception of these values and their relative weight.
For those critical of recent developments in judicial review, individual self-realisation may only require a protection of rights that ensures personal development and democracy. For those more welcoming of recent decisions, self-realisation may also require a protection of socio-economic and welfare rights. Those critical of judicial review may interpret good administration as including economic efficiencies, value for money and the achievement of policies. Those less critical of judicial review may regard good administration more on terms of ensuring that decisions made respect individual rights and facilitate the making of better policies through consultation requirements. We may also expect those critical of judicial review to value good administration, electoral legitimacy, and decisional autonomy more highly than individual self-realisation – the opposite being true for those who are more supportive of judicial review. Is the pluralism in Daly’s account so broad as to risk his underpinning values becoming meaningless?
That would be an unfair conclusion. Daly’s book aims neither to provide a theoretical justification of judicial review, nor to support a particular conception of judicial review. Instead, his account provides a valid legal theory of administrative law. Drawing on the work of Stephen Smith, Daly relies on fit, transparency, coherence, and morality to test the accuracy of his legal theory. Daly’s account fits case law, because these values are drawn upon when determining cases, even though they may be balanced in different ways to achieve diverse outcomes. It satisfies a moderate account of transparency, making explicit what Daly regards as implicit values that could be accepted by the courts. The values may be abstract, but often they give rise to coherence when applied to specific facts. The values also reflect basic commitments found in most liberal democracies.
If Daly’s theory does not help us choose a side between conflicting accounts, then this is by design. It is not Daly’s aim to resolve this tension, but to illustrate values that underpin case law. Nevertheless, the reader may feel a little let down. How is she to choose between competing accounts of the case law, or criticisms of the role of the court? Moreover, does not Daly’s account choose a side – preferring a normative approach, which must itself rest on assumptions about the proper role of courts to make these normative assessments?
A lesson from legitimate expectations
Daly’s book examines case law on substantive legitimate expectations to set out how, when applied to specific situations, his four values can work together in a complementary manner – discussing the outcome in Coughlan to illustrate this in more detail. The value of individual self-realisation provides an argument for protecting promises made to individuals by public bodies, even when these promises are to outcomes as opposed to the application of specific procedures. This is also supported by good administration. Administrative bodies are more efficient when they uphold their promises. This can also enhance confidence in public bodies. However, as Daly admits, care needs to be taken not to allow mistaken policies to continue when there are good reasons for them to change. This explains why there is no absolute protection of substantive legitimate expectations. Public bodies are still able to resile from their promises. Where Daly is critical of Coughlan is the way in which the court determined whether there were good reasons to resile from the promise of a home for life. Insufficient attention was paid to electoral legitimacy and decisional autonomy, particularly given that Coughlan concerned socio-economic issues. The courts should have given more weight to these values.
Whilst this does provide an example of how the values may be complementary, as opposed to in tension, is this is a sufficient steer? Would it provide a sufficient response to those who think that Coughlan was wrongly decided because good administration, electoral legitimacy and decisional-autonomy should outweigh individual self-realisation, and that there should not be a distinct legal protection of substantive legitimate expectations?
Daly justifies his approach precisely because it is a normative approach. Others, for example Professor Varuhas, would argue that courts should not adopt a normative approach – not only to legitimate expectations, but also as regards judicial review more generally. How should we choose between these competing interpretations? One way would be to use Daly’s approach – which interpretation fits better with the case law, is sufficiently transparent and coherent, and fits best with morality? This may be harder to determine conclusively when it comes to substantive legitimate expectations in English law. There are cases which, like Coughlan, support a broad principle of substantive legitimate expectations in English law and others that would suggest that the doctrine is narrow and almost exceptional, applying only in situations like Coughlan when there is a specific promise made to a defined group and where there are no real justifications for resiling from the promise. Whilst some cases, like Nadarajah and Rashid, suggested that substantive legitimate expectations could arise even when an individual was unaware of a policy that should have applied to their situation, later cases, like Mandalia, classified this as a sister principle to legitimate expectations which required that policies should apply to those falling within their ambit, unless there were good reasons not to apply the policy. Fit, transparency and consistency are not going to resolve this dispute. Nor is an appeal to values – it is a divergence as to the meaning of these values, and their relative importance, that causes the dispute in the first place.
Values and Purpose
One possible way of resolving this tension is to add in an assessment of the purposes of administrative law. There is a range of purposes that administrative law could fulfil. We often focus on the purposes of protecting individual rights, upholding the rule of law, or facilitating good administration. However, at least as regards English law, administrative law can also be called upon to perform a constitutional function: it determines the distribution of powers between institutions of the constitution; prevents one institution from unconstitutionally eroding the powers of another institution; and can serve as an ultimate constitutional back stop to prevent the removal of pillars of the constitution – e.g. judicial review or universal suffrage.
This is not to argue that the addition of purpose would resolve all conflicts. It may not determine whether Coughlan was correctly decided. It may help clarify the argument. If the purpose of judicial review is to uphold democratically chosen policy choices, then this may be defeated by a protection of substantive legitimate expectations. The opposite may be true if the purpose of administrative law is to prevent abuses of power and protect individual rights. A narrow, taxonomical approach to substantive legitimate expectations, for example, is better suited to the purpose of balancing individual rights and facilitating good administration. A broader, normative approach to substantive legitimate expectations may better serve the constitutional purposes of administrative law. The addition of purpose may also add another dimension to disputes as to justifications of judicial review; even if it only helps us to think more clearly about the foundations of these arguments and to ensure academics don’t talk at cross-purposes.
Alison L Young is the Sir David Williams Professor of Public Law at the University of Cambridge.