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Published online by Cambridge University Press: 20 March 2020
Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.
This is a revised version of the paper that was awarded the prize for best conference paper at the Society of Legal Scholars 110th Annual Conference at the University of Central Lancaster, Preston, England in September 2019. Thanks, with the usual caveat, to Mark Aronson, Eddie Clark, Aileen McHarg, Geoff McLay and Nicole Moreham, along with two anonymous reviewers, for comments and feedback on draft versions of the paper. Thanks also to Conor Gearty, Martin Loughlin and Tom Poole for earlier conversations on this topic and to William Britton for research assistance.
1 Joseph, PA ‘Exploratory questions in administrative law’ (2012) 25 NZULR 75Google Scholar, drawing on the language of Lord Donaldson in R (Guinness plc) v Panel on Take-overs and Mergers [1990] 1 QB 146.
2 For an explanation of these other traditional methods used to express depth of scrutiny, in contradistinction to this type of contextual review, see Knight, DRVigilance and Restraint in the Common Law of Judicial Review (Cambridge: Cambridge University Press, 2018)CrossRefGoogle Scholar.
3 See below, Part 1(a) for an extended explanation of the use of the term contextual review in this way.
4 See Craig, PP ‘Fundamental principles of administrative law’ in Feldman, D (ed) English Public Law (Oxford: Oxford University Press, 2009)Google Scholar para [13.16]; compare Forsyth, C ‘Of fig leaves and fairy tales’ in Forsyth, C (ed) Judicial Review and the Constitution (Oxford: Hart Publishing, 2000) p 29Google Scholar.
5 Joseph, above n 1.
6 Anglo-Commonwealth is a term I employ to refer to England and Wales, Australia, Canada and New Zealand: see Knight, above n 2, at 16. These jurisdictions represent a common cohort for comparative administrative law analysis, especially because they have ‘a significant degree of doctrinal and institutional similarity’: Saunders, C ‘Apples, oranges and comparative administrative law’ [2006] AJ 423Google Scholar at 427.
7 For simplicity, I use the terms ‘England’ and ‘English’ to capture the system of judicial review in England and Wales: see generally Ireland, R ‘Law in Wales’ in Cane, P and Conaghan, J (eds) The New Oxford Companion to Law (Oxford: Oxford University Press, 2008) p 1231Google Scholar.
8 Guinness, above n 1, at 160.
9 Knight, above n 2. The labels for the different styles are loosely drawn from the language and structure of Professor Stanley de Smith's acclaimed judicial review textbook as it changed over its lifetime: see Knight, above n 2, p 6, tracing the language change in de Smith Judicial Review of Administrative Action (Stevens, 1st edn, 1959) to Woolf et al de Smith's Judicial Review (Sweet & Maxwell, 7th edn, 2013).
10 Harlow, C ‘A special relationship?’ in Loveland, I (ed) A Special Relationship? (Oxford: Clarendon, 1995) p 79Google Scholar at p 83; Taggart, M ‘Reinventing administrative law’ in Bamforth, N and Leyland, P (eds) Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003) p 312Google Scholar; Knight, above n 2, ch 2 ‘Scope of review’.
11 See for example Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) and New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA); Knight, above n 2, ch 3 ‘Grounds of review’.
12 See for example Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748; Pushpanathan v Canada (Minister of Employment & Immigration) [1998] 1 SCR 982; R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514 (HL); Wolf v Minister of Immigration [2004] NZAR 414 (HC); International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728.
13 Joseph, above n 1, at 75 and 80.
14 Joseph, above n 1, at 81.
15 Joseph, above n 1, at 101.
16 Joseph, above n 1, at 87.
17 Guinness, above n 1.
18 Guinness, above n 1, at 160.
19 Guinness, above n 1, at 159.
20 Guinness, above n 1, at 160.
21 R (Camelot Group plc) v National Lottery Commission [2001] EMLR 3.
22 Camelot Group plc, above n 21, at [84].
23 R (Niazi) v Secretary of State for the Home Department [2007] EWHC 1495 (Admin); R (A) v Lord Saville of Newdigate [2000] 1 WLR 1855. The approach also received warm praise from a Supreme Court judge in extra-judicial remarks: see Lord Carnwath's remarks below.
24 R (Miller) v Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41, [2019] 3 WLR 589.
25 This point has vexed many commentators, with a plethora of grounds or methods being suggested, including error of law, jurisdictional error, proportionality and a new breach of constitutional principle ground; see for example M Elliott The Supreme Court's judgment in Cherry/Miller (No 2): a new approach to constitutional adjudication? (24 September 2019) available at www.publiclawforeveryone.com; R Masterman and S Wheatle Miller/Cherry and constitutional principle (14 October 2019) available at www.ukconstitutionallaw.org; J Hamzah Sendut The prorogation case: proportionality in all but name? (8 October 2019) available at ukconstitutionallaw.org; A Sapienza Miller 2 – jurisdictional error strikes back (7 October 2019) available at www.adminlawblog.org.
26 Electoral Commission v Cameron [1997] 2 NZLR 421.
27 See also its recognition in Health Authority Trust v Director of Health and Disability Consumer Advocacy [2008] NZCA 67; Wilkins v Auckland District Court (1997) 10 PRNZ 395; Issac v Minister of Consumer Affairs [1990] 2 NZLR 606; Taiaroa v Minister of Justice (CP 99/94, High Court, 4.10.1994); Shaw v Attorney-General (No 2) [2003] NZAR 216; Te Runanga o Ngai Tahu v Attorney-General (CIV-2003-404-1113, 6.11.2003).
28 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.
29 Ririnui at [54] and [90] (Elias CJ and Arnold J; Glazebrook and O'Regan JJ concurring on this point).
30 Pora v Attorney-General [2017] 3 NZLR 683.
31 ANZ Sky Tours Ltd v New Zealand Tourism Board [2019] NZAR 951.
32 ANZ Sky Tours, above n 31, at [148].
33 ANZ Sky Tours, above n 31, at [148].
34 New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2018] NZHC 2454.
35 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
36 AI (Somalia), above n 35, at [44].
37 AI (Somalia), above n 35, at [46].
38 Dunsmuir v New Brunswick [2008] 1 SCR 190. See generally Daly, P ‘Dunsmuir's flaws exposed’ (2012) 58 McGill LJ 1Google Scholar; DJ Mullan ‘Unresolved issues on the standard of review in Canadian judicial review of administrative action - the top fifteen!’ (2013) 42; Stratas, D ‘The Canadian law of judicial review’ (2016) Queen's LR 27Google Scholar.
39 Knight, above n 2, ch 4.
40 Dunsmuir v New Brunswick [2008] 1 SCR 190.
41 Dunsmuir, above n 40, at [139].
42 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654 at [87]. See also Canada (Attorney-General) v Canadian Human Rights Commission [2013] FCA 75 at [12].
43 Canada (Canadian Human Rights Commission) v Canada (Attorney-General) [2011] 3 SCR 471; Alberta Teachers’; Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5, discussed in Daly, above n 38.
44 Law Society of New Brunswick v Ryan [2003] 1 SCR 247 at [20] and [44]; compare Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339 at [108].
45 Catalyst Paper, above n 43, at [18]. See also Khosa, above n 44, at [59].
46 Bell Canada v Attorney General of Canada; Canada (Minister of Citizenship and Immigration) v Vavilov (SCC, appeal heard December 2018).
47 See for example Lord Cooke's proposed simplification of the reasonableness ground in R (International Traders’ Ferry Ltd) v Chief Constable of Sussex [1999] 2 AC 418 at 452 and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 549; along with a similar suggestion from Thomas J in Waitakere City Council v Lovelock [1997] 2 NZLR 385 and 403.
48 Knight, above n 2, ch 3 ‘Grounds of review’.
49 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 at 652 (McKay and Fisher JJ agreeing the decision should be quashed but expressing some caution about substantive fairness as a ground of review).
50 Thames Valley, above n 49, at 652.
51 See for example Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747 (HC).
52 See for example Lowrie v Hutt City Te Awa Kairangi [2019] NZAR 620 (HC).
53 R (Puhlhofer) v Hillingdon London Borough Council [1986] AC 484 at 518 (HL).
54 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] QB 365 at [60]–[61]; Lab Tests Auckland Ltd v Auckland District Health Board [2009] 1 NZLR 776 (CA) at [386].
55 R (Coughlan) v North and East Devon HA [2001] QB 213 (CA) at [57]; approved in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 at [34]. See also R (Begbie) v Secretary of State for Education and Employment [2000] 1 WLR 1115 and R (Bibi) v Newham London Borough Council [2002] 1 WLR 237.
56 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28].
57 Huang v Secretary of State for the Home Department [2007] 2 AC 167.
58 Lord Bingham treated the question as the same for all authorities: the adjudicator, Immigration Appeal Tribunal and Court of Appeal.
59 Huang, above n 57, at [14].
60 Huang, above n 57, at [14]
61 Huang, above n 57, at [16].
62 See for example R (SB) v Governors of Denbigh High School [2007] 1 AC 100; Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420; R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at 33 (and, in that context, ‘great weight’); R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621; R (Nicklinson) v Ministry of Justice [2014] 3 WLR 200 at [166]–[171], [348]; R (Lord Carlile) v Secretary of State for the Home Department [2014] UKSC 60. See also Kennedy v Charity Commission [2014] 2 WLR 808 (correctness review, along with an emphasis on ‘weight’, in the context of common law unreasonableness review) and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 (especially the emphasis on ‘context’ determining intensity and weight to the primary decision-maker's view); Knight, above n 2, ch 4.
63 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1, especially at [111] (Tipping J) and [268] (Anderson J).
64 Knight, above n 2, at Part 2.2.2.
65 Knight, above n 2, p 245.
66 Joseph, above n 1, and see Introduction above.
67 Joseph, above n 1, at 74.
68 Joseph, above n 1, at 74 and 80.
69 Knight, DR ‘Simple, fair, discretionary administrative law’ (2008) 39 VUWLR 99CrossRefGoogle Scholar. See also Taggart, M ‘The contribution of Lord Cooke to scope of review doctrine in administrative law’ in Rishworth, P (ed) The Struggle for Simplicity in the Law (Butterworths, 1997) p 189Google Scholar; Knight, DR ‘Mapping the rainbow of review’ (2010) NZ Law Rev 393Google Scholar.
70 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552.
71 Bulk Gas Users Group Ltd v Attorney-General [1983] NZLR 129 at 136.
72 Daganayasi v Minister of Immigration [1980] 2 NZLR 130.
73 Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216.
74 R (International Traders’ Ferry Ltd) v Chief Constable of Sussex [1999] 2 AC 418 at 452; Daly, above n 56, at 549.
75 R Cooke ‘Fairness’ (1989) 19 VUWLR 421 at 426; ‘The discretionary heart of administrative law’ in C Forsyth and I Hare (eds) The Golden Metwand and the Crooked Cord (Clarendon, 1998) p 203 at p 212; ‘Foreword’ in GDS Taylor Judicial Review (Butterworths, 1991) p iv; ‘Foreword’ in Joseph, PAConstitutional and Administrative Law in New Zealand (Brookers, 2nd edn, 2001)Google Scholar p vi; ‘The road ahead for the common law’ (2004) 53 ICLQ 273 at 284.
76 Thames Valley, above n 49, at 653.
77 Thames Valley, above n 49, at 653. See also Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747. Despite Lord Cooke efforts in the late 1980s and early 1990s, it failed to gain any real traction as ground in itself; see Joseph, PA ‘The contribution of the Court of Appeal to Commonwealth administrative law’ in Bigwood, RThe Permanent New Zealand Court of Appeal (Hart Publishing 2009)Google Scholar p 41 at p 65.
78 Ye v Minister of Immigration (NZSC, transcript, 21–23 April 2009, SC53/2008) at 179 (Elias CJ), quoted in Knight (2010), above n 69, at 400.
79 Astrazeneca Ltd v Commerce Commission (NZSC, transcript, 8 July 2009, SC 91/2008) 52.
80 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 at [5] (questions not ‘helpfully advanced by consideration of the scope and intensity’).
81 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 and McGrath v Accident Compensation Corporation [2011] 3 NZLR 733. See A Beck ‘Farewell to the forum otiosum?’ [2011] NZLJ 269 and E Willis ‘Judicial review and deference’ [2011] NZLJ 283.
82 Elias, S ‘Administrative law for living people’ (2009) 68 CLJ 47CrossRefGoogle Scholar at 48. See also Elias, S ‘Righting administrative law’ in Dyzenhaus, D et al. (eds) A Simple Common Lawyer (Oxford: Hart Publishing, 2009) p 55Google Scholar.
83 Elias, S ‘The unity of public law?’ in Elliott, M et al. (ed) The Unity of Public Law (Oxford: Hart Publishing, 2018)Google Scholar pp 15 and 35.
84 Daly, above n 56.
85 Lord Carnwath ‘From judicial outrage to sliding scales’ (ALBA Annual Lecture, November 2013) p 19.
86 Daly, PA Theory of Deference in Administrative Law (Cambridge University Press, 2012)CrossRefGoogle Scholar.
87 Fuller, LLThe Morality of Law (New Haven, Conn: Yale University Press, 1964)Google Scholar. See generally Murphy, C ‘Lon Fuller and the moral value of the rule of law’ (2005) 25 Law & Phil 239Google Scholar; Waldron, J ‘Why law – efficacy, freedom, or fidelity?’ (1994) 13 Law & Phil 259CrossRefGoogle Scholar; Loughlin, MFoundations of Public Law (Oxford: Oxford University Press, 2012) pp 333–335Google Scholar. Fuller's criteria have been echoed by a number of others writing on the rule of law. See for example Raz, J ‘The rule of law and its virtue’ (1977) 93 LQR 195Google Scholar; Bingham, TThe Rule of Law (Penguin, 2011)Google Scholar.
88 There has been some debate about whether these criteria are expressions of morality or not but this characterisation is not important for present purposes. See Fuller, above n 87, pp 53 and 204; Raz, above n 87, at 226; Loughlin, above n 87, p 334.
89 Knight, above n 2. See also M Taggart ‘Proportionality, deference, Wednesbury’ [2008] NZ Law Rev 424 at 150; Williams, DGT ‘Justiciability and the control of discretionary power’ in Taggart, M (ed) The Province of Administrative Law (Hart Publishing, 1997) p 103Google Scholar at p 106.
90 Knight, above n 2, ch 6 ‘Conclusion’.
91 This analysis draws heavily on the normative evaluation in Knight, above n 2, ch 5 ‘Contextual review’.
92 Fuller, above n 87, p 43. The only one he marks out as essential is promulgation (public accessibility of law to those affected).
93 For a similar analysis of the different doctrinal-based styles, see Knight, above n 2, ch 2 (scope of review), ch 3 (grounds of review) and ch 4 (intensity of review).
94 Fuller, above n 87, p 210.
95 Fuller, above n 87, p 209.
96 Fuller, above n 87, p 213.
97 On equality and consistency, see Fuller, above n 87, p 211.
98 Joseph, above n 1, at 74. See also JC Hutcheson ‘The judgment intuitive’ (1929) 14 Cornell LR 274 (‘judicial hunch’).
99 Joseph, above n 1, at 74.
100 Joseph, above n 1, at 77.
101 Joseph, above n 1, at 80.
102 The palm tree justice metaphor is drawn from Judges 4:5 (‘And she dwelt under the palm tree of Deborah between Ramah and Bethel in Mount Ephraim: and the children of Israel came up to her for judgment’).
103 Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168.
104 Daly, above n 86, p 7 (epistemic deference); Hickman, TPublic Law after the Human Rights Act (Oxford: Hart Publishing, 2010) p 172Google Scholar (non-doctrinal deference); Allan, TRS ‘Judicial deference and judicial review’ (2011) 127 LQR 96Google Scholar at 98 and 108 (single-level integrated analysis).
105 Hickman, above n 104, p 129.
106 Dyzenhaus, D ‘The politics of deference: judicial review and democracy’ in Taggart, M (ed) The Province of Administrative Law (Oxford: Hart Publishing, 1997) p 279Google Scholar at p 286.
107 Hickman, above n 104, p 137.
108 Joseph, above n 1, at 75 and 81.
109 Joseph, above n 1, at 80.
110 Joseph, above n 1, at 79.
111 Joseph, above n 1, at 80.
112 Joseph, above n 1, at 80.
113 Joseph, above n 1, at 79.
114 Joseph, above n 1, at 81.
115 See for example Blom-Cooper, L ‘The new face of judicial review’ [1982] PL 250Google Scholar (Eng); Joseph, PA ‘The contributions of the Court of Appeal to commonwealth administrative law’ in Bigwood, R (ed) The Permanent New Zealand Court of Appeal (Oxford: Hart Publishing, 2009) p 41Google Scholar (common membership of the New Zealand Court of Appeal for long periods).
116 See for example Bradley, AW and Ewing, KDConstitutional and Administrative Law (Pearson, 14th edn, 2007) p 388Google Scholar; Judicial Working Group Justice Outside London (2007) para [42]; R Clayton ‘New arrangements for the administrative court’ [2008] JR 164.
117 Fuller, above n 87, p 51.
118 Fuller, above n 87, p 50.
119 Fuller, above n 87, pp 212, 214 and 222.
120 LL Fuller Anatomy of Law (Westport, Conn: Greenwood Press, 1976) p 91.
121 Mureinik, E ‘A bridge to where?’ (1994) 10 SAJHR 31Google Scholar; Dyzenhaus, D ‘Law as justification’ (1998) 14 SAJHR 11Google Scholar; Taggart, above n 89, 461. On reason-giving, see generally Craig, PP ‘The common law, reasons and administrative justice’ [1994] CLJ 282CrossRefGoogle Scholar; Sueur, AP Le ‘Legal duties to give reasons’ (1999) 52 CLP 150Google Scholar; Elliott, M ‘Has the common law duty to give reasons come of age yet?’ [2011] PL 56Google Scholar.
122 Joseph, above n 1, at 74 and 80.
123 Joseph, above n 1, at 74.
124 R (Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363.
125 Abdi, above n 124, at [67].
126 Abdi, above n 124, at [67].
127 Poole, T ‘Between the devil and the deep blue sea’ in Pearson, L et al. (eds) Administrative Law in a Changing State (Oxford: Hart Publishing, 2008) p 15Google Scholar at p 40.
128 Poole, above n 127, p 40.
129 King, J ‘Institutional approaches to judicial restraint’ (2008) 28 OJLS 409CrossRefGoogle Scholar at 411.
130 Hickman, above n 104, p 135 (emphasis added).
131 Hickman, above n 104, p 135.
132 Fuller, above n 87, p 53.
133 Fuller, above n 87, p 53.
134 Fuller, above n 87, p 56. See also Fuller, above n 120, p 100.
135 Fuller, above n 87, p 63.
136 Fuller, above n 87, pp 63, 212 and 213.
137 Fuller, above n 87, pp 209 and 212.
138 Fuller, above n 87, p 212.
139 Fuller, above n 87, p 64, instancing standards such as ‘good faith’ and ‘due care’.
140 Fuller, above n 87, p 64.
141 Fuller, above n 87, p 64. Here, Fuller highlights the instances the problematic use of the standard of ‘fairness’ in commercial dealings.
142 See also Dworkin, RLaw's Empire (Cambridge, Mass: Harvard University Press, 1988) p 167Google Scholar; MacCormick, NRhetoric and The Rule of Law (Oxford: Oxford University Press, 2009) pp 189Google Scholar and 193.
143 Kress, K ‘Coherence and formalism’ (1993) 16 Harv J L & Pub Policy 639Google Scholar.
144 Fuller, above n 120, p 94.
145 Fuller, above n 120, p 94.
146 Fuller, above n 87, p 79.
147 Harlow, C and Rawlings, RLaw and Administration (Cambridge: Cambridge University Press, 3rd edn, 2009) p 669CrossRefGoogle Scholar. Harlow and Rawlings say the goal of the hortatory or educative function is ‘ultimately the internalising by administrators of legal values’ (p 728). The establishment of general principles for the proper exercise of discretion helps promote good decision-making on a prophylactic basis (‘fire-watching’) rather than merely addressing deficiencies after the fact (‘fire-fighting’) (p 728). See also Halliday, SJudicial Review and Compliance with Administrative Law (Oxford: Hart Publishing, 2004) p 15Google Scholar; Hartogh, M and Halliday, SJudicial Review and Bureaucratic Impact (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar.
148 Harlow and Rawlings, above n 147, p 728.
149 Harlow and Rawlings, above n 147, p 728.
150 Halliday, SJudicial Review and Compliance with Administrative Law (Oxford: Hart Publishing, 2004) p 143Google Scholar.
151 Joseph, above n 1, at 74.
152 See for example an analysis of these evidential pressures in Canada as the standards of review have become more generalised: Oliphant, B and Wihak, LJ ‘Dunsmuir and the scope of admissible evidence on judicial review’ (2019) 69 UTLJ 31CrossRefGoogle Scholar.
153 Bondy, V and Sunkin, MThe Dynamics of Judicial Review Litigation (Public Law Project, 2009) pp 49–70Google Scholar.
154 For similar arguments about the problems of open-ended moral reasoning and the value of legally directed adjudication in the context of the proportionality test see Urbina, FJ ‘A critique of proportionality’ (2012) 57 Am J Juris 49CrossRefGoogle Scholar.
155 Fuller, above n 87, p 79.
156 Fuller, above n 87, p 81.
157 Fuller, above n 87, p 82 (‘the tune called may be quite undanceable by anyone, including the tune-caller’). King echoes this concern, when he worries about the gap between ‘what judges say and do’: King, J ‘Proportionality’ (2010) NZ Law Rev 327Google Scholar at 334.