In his recent annual lecture to the Constitutional and Administrative Law Bar Association, Lord Carnwath spoke to the title: “From judicial outrage to sliding scales—where next for Wednesbury?” In this post, I outline some of the key points made in the lecture and offer some critical commentary on the approach to substantive judicial review commended by Carnwath.
Much of the lecture is devoted not to a positive account of how substantive review ought to work, but to a critique of approaches to the reasonableness doctrine that are discernible in current and prior jurisprudence. For instance, Carnwath rejects the formulation of the unreasonableness—or irrationality—principle advanced by Lord Diplock in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374). As is well known, in that case Lord Diplock said that a decision would be irrational—and so unlawful—if it were
so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
However, Carnwath argues that the Diplock formulation of irrationality fails to supply judges with a suitable conceptual toolkit by which to determine whether a decision is flawed on substantive grounds:
[I]t is hard to see how “outrage” can ever be an appropriate or acceptable part of the judicial armoury? And why “logic”? The hallmark of a sound administrative decision, surely, is not so much logic, as informed judgment, which may take account of all sort of “illogical” factors such as political considerations and a democratic mandate? And how do “moral standards” come into this formulation? There may be many ways in which the conduct of public authorities can be morally objectionable— perhaps bribery, nepotism, even maintaining a public brothel? Such activities may be illegal, but not because they are “irrational”, still less because judges find them outrageous.
Next, Carnwath considers, and rejects, the anxious-scrutiny test which achieved a certain prominence in the late 1980s and 1990s, as a means of injecting a (modest) degree of backbone into pre-Human Rights Act substantive review cases touching upon fundamental rights. An early articulation of the notion of anxious scrutiny is contained in Bugdaycay v Home Secretary [1987] AC 514. It concerned the right to life, although the anxious-scrutiny test was later rolled out across a broader range of rights. In Bugdaycay, Lord Bridge said:
[T]he court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.
Carnwath rightly indicates that “anxious scrutiny” is a protean concept: “anxiety”, he says, “is descriptive of a state of mind, not of a legal principle”. Certainly, it has not always been clear exactly what it is that anxious scrutiny attaches to. Does it imply that the court will merely look at the evidence more carefully when ascertaining whether the normal Wednesbury principle is satisfied? Or that some more demanding threshold of reasonableness is being applied? That the anxious-scrutiny test leaves these questions to some extent unresolved is a legitimate criticism – but one which hints at a deeper need for a more throughly-developed conception of what is, and what should be, going on in substantive-review cases. As I argue below – and in more detail elsewhere – the beginnings of such a conception can be supplied by an appreciation of different senses in which an overarching notion of justification operates in this area.
Later in his lecture, Carnwath turns his attention to the notion of “variable intensity” review: the idea that, as Laws LJ put it in R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115:
Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. But each is a spectrum, not a single point, and they shade into one another. It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake …
Carnwath takes issue with the suggestion that the intensity of review should be determined by reference to the “nature and gravity of what is at stake”:
[T]ake two notorious examples of minimal review: the Nottinghamshire case (local authority finances), and Puhlhofer (housing the homeless). Neither was lacking in gravity: the first raising issues of national importance about the relationship of national and local financial competence; the latter, in a quite different way, touching on the basic need to have a roof over one’s head. In restricting the scope of review, the courts were making judgments, not about relative gravity or importance, but about relative competences, and about allocation and definition of relative responsibilities within a prescribed statutory framework.
These remarks suggest a conflation of what I have termed “starting-point deference” and “adjudicative deference”. The former is concerned with the burden of justification the decision-maker is to be subjected to—a consideration that ought properly to be informed by the normative fundamentality of the value upon which the public decision is alleged to impact. The latter concept—adjudicative deference—is concerned with the rigour with which the court will review whether the burden of justification has been discharged. It is in relation adjudicative deference that considerations such as institutional competence can properly enter into play. But the fact that such considerations may sometimes operate does nothing to detract from the fact that the initial allocation of the justificatory burden can (and should) be informed by what is normatively placed at stake by the impugned administrative decision.
Following his criticism of other approaches, Carnwath endorses the attempt of Sir Jeffrey Jowell to ascribe greater structure to the notion of unreasonableness. Jowell observes that decisions are likely to be judged to be unreasonable when they: disclose particular characteristics, such as being illogical; lack a rational connection with the evidence; exhibit unduly uncertain or excessively vague reasoning; place too much or too little weight on a legally-relevant consideration; result from the application of a policy that amounts to a fettering of discretion; result from ignorance of or a mistake concerning a material fact; breach the rule of law, a legitimate expectation or the principle of consistency; or are unduly harsh. Carnwath says:
I like that analysis. The important question is not whether the decision is beyond the range of reasonable responses, but why? The reason must be found either in the statute, expressly or by implication, or in some other general but separately identifiable principle of the common law. I like it also because it accords to my own experience of the development of administrative law over the 45 years or so of my professional career. The judges have been like sculptors chipping away at the relatively formless block bequeathed to them by Lord Greene, in order to carve out some more practical and specific tenets of the law such as can be applied to real cases. General judicial theorising even at the highest level should not always be taken too seriously. Much more important is what the courts have actually decided – particularly those where the challenges have been successful, and where the reasoning has stood the test of time.
Carnwath is right when he says that the key question is not whether a decision is unreasonable, but why it is unreasonable. He does not, however, develop that insight sufficiently. A court is entitled to ask whether an administrative decision is reasonable—in the sense of being justified—when, in the first place, that decision prima facie compromises a value (including a right) that is worthy of protection. The heavy lifting must therefore be done by a more-developed conception of what those values are, and of what their normative significance is relative to one another. Attempting to reduce substantive review to a catalogue of single instances, for all that it may bring the appearance of greater clarity and certainty to this area of administrative law, fails to grapple with the underlying need for a normative ordering of the values that warrant judicial protection. What is actually called for is a greater sense of the underlying principles and the theoretical framework in which they sit, not a retreat into pragmatism.
That Carnwath is advocating such a retreat is placed beyond doubt by the startling frankness exhibited in the closing section of the lecture:
In 19 years as a judge of administrative law cases I cannot remember ever deciding a case by simply asking myself whether an administrative decision was “beyond the range of reasonable responses”, still less whether it has caused me logical or moral outrage. Nor do I remember ever asking myself where it came on a sliding scale of intensity. My approach I suspect has been much closer to the characteristically pragmatic approach suggested by Lord Donaldson in [R v Take-over Panel, ex parte Guinness plc [1990] 1 QB 146], by way of a rider to what Lord Diplock had said in [GCHQ]: “the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take”. If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one … Generally we [judges] should look to the academics to do the theorising, and to put our efforts into a wider context. That way, we can decide the cases, and then they can tell us what we really meant, so that we can make it sound better next time.
These comments betray a highly pragmatic approach—also exhibited by the Supreme Court, and by Lord Carnwath’s judgment in particular, in R (Jones) v First-tier Tribunal [2013] UKSC 19—that places the doctrinal integrity of administrative law at risk. It is impossible to ask whether something “has gone wrong” such as to require judicial intervention unless one first has a worked-out conception of the types of “wrong” with which judges can properly be concerned, and of the normative significance that is properly to be ascribed to particular “wrongs” (which might include, but will not be limited to, the infringement of “rights”).
Of course, the nature of the common law is that principle often emergences inferentially, via the incremental process of deciding individual cases—and there is nothing wrong with that. It would be naïve to suggest that judges should not put finger to keyboard until they have developed their own all-encompassing theory of (administrative) law. There is, however, a balance to be struck between gut instinct and principled analysis. The concern raised by Carnwath’s approach in his ALBA lecture and his judgment in Jones is that it risks treating the conceptual apparatus of administrative law as something which does little more than confer a doctrinal veneer upon judgments that are ultimately taken upon other grounds. On one view, such an approach is refreshingly honest, and to be welcomed for that reason. On another view, however, it evidences a relentless pragmatism that risks reducing administrative law to a vehicle for dispensing palm-tree justice.
“Theorising” is not just for academics, and nor is theory merely an ex post framework of scaffolding to be erected so as to confer a specious conceptual stability upon extant judicial decisions. Carnwath’s view that judges should “make better use” of academic analysis is welcome, but his perception of what that should actually reduce to in practice is arrestingly insubstantial. Real engagement between judges and academics – and between judicial reasoning and legal theory – must transcend relying upon the latter as a means of making the former “sound better”.
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