This collection of essays assesses modern administrative law in the light of four major decisions from the 1960s, which it terms “the Quartet”: Ridge v Baldwin [1964] A.C. 40, Conway v Rimmer [1968] A.C. 910, Padfield v Minister for Agriculture, Fisheries and Food [1968] A.C. 997 and Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147. The editors describe the Quartet as a “formative moment” in the development of modern judicial review (p. 4). The substantive chapters, of which there are 17, analyse judicial review from a number of different perspectives. It is fair to say that the extent to which the chapters expressly consider the Quartet varies from chapter to chapter, but each provides worthwhile insight about modern administrative law.
The first substantive chapter is Lord Reed on Lord Reid, with reflections on one of the great Senior Law Lords (during the period of the Quartet) by the current President of the Supreme Court (Chapter 2). Lord Reed picks up on some aspects relevant to practical judicial decision-making, stating in relation to Ridge v Baldwin, “the first point to strike a modern judge is that the hearing lasted eight days … [whereas] a comparable case today would be allowed two days at most” (p. 27). Perhaps being overly-modest, Lord Reed indicates: “I write perhaps four or five judgments a year which develop the law to a significant extent, and they mostly concern technical questions which have arisen in areas of the common (and therefore judge-made) law, for example in the law of contract, tort or unjust enrichment” (p. 33).
Robert Thomas examines Ridge v Baldwin in detail (Chapter 3). He focuses on Lord Reid's speech and, interestingly (bearing in mind what Sunkin and Scott say, as noted below), Thomas considers that Lord Reid's approach is couched less in terms of principle, and more by precedent and analogy. He suggests that the House of Lords was following an “emerging view” of administrative law which came from sources other than the courts (p. 52). Thomas notes that fair process rights could benefit someone whose case was generally lacking in merit: “Ridge had engaged in some very dubious activities”, but obtained salary arrears and his pension following his victory (p. 51).
Maurice Sunkin puts Padfield under the spotlight (Chapter 4). Unlike Thomas's description of Ridge, Sunkin argues that Lord Reid's approach comes from general principle rather than authority (p. 71). Whilst the claimant did not obtain the ultimate result he would have desired, the Padfield decision did lead to securing important participation rights. The effect of the court's decision was to bring the decision into the public domain, and to increase parliamentary accountability.
T.T. Arvind and Lindsay Stirton address what they call “the forgotten story” of the decision in Conway v Rimmer (Chapter 5). The House of Lords limited the doctrine of Crown privilege by finding that the courts were not bound by a Ministerial certificate concerning privilege arising from a class of documents. Arvind and Stirton express the concern that administrative law may have been formulated without reference to the administration's own views (p. 109). However, given the role which former Treasury Devils or First Treasury Counsel have had in public law cases, it cannot be said that the senior judiciary is blind to the needs of the Government.
David Feldman follows up his previous pioneering work on Anisminic with examination of that decision primarily in the light of R. (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] A.C. 491 (Chapter 6). One key question which Feldman discusses is how clauses seeking to exclude the court's power of review should be drafted if they are to have any effect (p. 128). He states that discussion following Anisminic focused on the types of error which may be jurisdictional, rather than on the scope of the decision-making power.
Sarah Nason carries out an empirical study of modern administrative law (Chapter 7). Nason considers the role of the individual, and the operation of the “individual fact” case, following from her previous research. Individual fact cases are dealt with largely by means other than Applications for Judicial Review, and Nason suggests that the Administrative Court could focus on acting as a constitutional court of first instance.
Paul Bowen Q.C. addresses an argument that the repeal of the Human Rights Act 1998 would be of little significance, since common law rights would be able to step in to fill the void (Chapter 8). Bowen argues that the scope, power and durability of common law constitutional rights is less than the corresponding rights under the Human Rights Act or the ECHR.
Joe Tomlinson's analysis goes beyond doctrinal scrutiny of Anisminic and considers whether ouster clauses are as significant as the level of scrutiny given to them would indicate (Chapter 9). If ouster clauses are dubious by virtue of preventing access to the courts, should we not be concerned about other matters which have the same effect, such as financial obstacles to bringing a claim? This insight is a significant one. Likewise, public lawyers are troubled by ouster clauses which prevent all access to the courts, but are less worried by ouster clauses which channel review into a particular procedure. But we should bear in mind R. v Secretary of State for the Environment, ex parte Kent [1990] J.P.L. 124, where the Court of Appeal held that the approach in Anisminic did not apply to a statutory ouster which required all challenges to be brought by a statutory procedure with a deadline of six weeks. This was the case even though the local planning authority had failed to tell neighbours of the proposed development about it, and they discovered about the development only long after the expiry of the 6-week period.
David Gardner considers the history of administrative law in Wales, and provides a forceful argument for the development of a codified administrative law in Wales (Chapter 10). This chapter however provides little express discussion of the role of the Quartet in the development of Welsh judicial review.
Paul Scott assesses the position in Scottish law, with an interesting analysis of the Quartet north of the border (Chapter 11). He decides that principle is more significant than precedent in the Quartet (p. 258).
Gordon Anthony's chapter concerns Northern Ireland, and particularly two recent decisions: Re Northern Ireland Human Rights Commission [2018] UKSC 27, [2019] 1 All E.R. 173 and Re Buick [2018] NICA 26 (Chapter 12). Gordon concludes that these cases show that the courts have a constitutionalising function where other branches of the state have failed. Gordon's emphasis is largely on constitutional judicial review in Northern Ireland, or at least judicial review having constitutional implications; there is little discussion of what Nason would call “individual fact” cases.
A particularly interesting chapter is that by Daphne Barak-Erez, on Israeli administrative law (Chapter 13). Whilst Israeli administrative law is, in some sense, the child of English law, Barak-Erez demonstrates how in some cases, Israeli law ran ahead of its English parent. This chapter is an effective antidote to English condescension: lessons from legal transplants can be learned in more than one direction.
The life of the Quartet abroad is also the subject to Dean Knight's highly perceptive piece, examining the impact in New Zealand (Chapter 14). A large part of Knight's chapter concerns the adoption of Anisminic (although it would be interesting to have Knight's view of whether the picture is altered by the decision in Privacy International).
Peter Cane's chapter takes a high-level examination of constitutional and administrative regimes in what he terms the “New Commonwealth” (Chapter 15). Cane reflects on the different power of courts in a system without a codified Constitution. Administrative law in systems with codified constitutions “is mostly subconstitutional and, therefore, subject to invalidation for unconstitutionality” (p. 345). The source of judicial power is the Constitution. By contrast, in the English model, the “courts have ‘inherent’ power … to make common law, including administrative law and constitutional law” (p. 345).
One of the chapters which engages most closely with the Quartet is that by Stephen Bailey (Chapter 16). Particularly strong is the section on the propositions which were rejected in the Quartet decisions. This includes what Bailey characterises as the proposition “[t]hat it was somehow inappropriate – if a minister was courteous enough to provide reasons for a decision – to criticise them” (p. 365).
Alexander Latham-Gambi uses the Quartet to contest the contentions of the “Judicial Power Project” (Chapter 17). He considers that power is not a zero-sum game: the Quartet does not demonstrate the courts aggrandising themselves at the expense of the elected branches, but may enable the latter to achieve their objectives. If political power is being exercised correctly, what matters is the power of the political institution (exercised legitimately), not the personal aims of the individual office-holder. Following fair process may help a decision maker achieve its objectives. Padfield did not prevent the minister from reaching his ultimate decision, but it did lead to Parliament being involved. The effect of Anisminic was to preserve accountability. Conway demonstrated the greatest limitation of executive power, but was counter-productive and the least currently-relevant of the Quartet.
Richard Kirkham and Dimitrios Tsarapatsanis argue that the judicial House of Lords had, in the Reid era, an agenda of moving public law onwards (Chapter 18). As the law is not entirely determinative, the courts have some legitimacy to make different decisions (i.e. both outcome A and outcome B may be equally open to courts). This interesting argument could in the future be expanded by further exposition of the underlying evidence for it.
In the concluding chapter, the editors consider what is said to be “the real argument about judicial review”, namely about how judicial review might create a partnership between the arms of government (p. 446). Whilst this chapter draws to some extent on what has gone before in the collection, some of the observations appear not to be given the prominence that they deserve. In particular, when considering the role that Anisminic plays in ensuring that public bodies remain within their legal powers (pp. 434–38), there is no express consideration of Tomlinson's argument that there are more profound restrictions upon access to the court than the problems posed by ouster clauses.
There must be some question as to whether the decision in Conway deserves the attention which it receives in this volume. A number of authors note that this decision lacks continuing significance. Latham-Gambi points out that it was not an action for judicial review (in terms of a challenge to decision-making) at all, and that this explained why the House of Lords took a different approach: “[r]ather than making the decision-maker reconsider his decision, in Conway the House of Lords assumed responsibility to take the decision itself” (p. 388). Given that Conway is unlikely to be familiar for those reading current administrative law cases and commentary, it may be that emphasis on it could have been reduced. Alternatively, Arvind and Stirton, in their chapter on Conway, could have explained why it has fallen into relative obscurity in practice but nevertheless deserves prominence in research.
The analysis in these papers contains much insight and factual interest. One perspective which is lacking is a sectoral approach to the Quartet. Knight says that citation of the Quartet “is almost a signal to say, ‘there's nothing to see here”’ (p. 314). However, the citation of the Quartet may more accurately be an acknowledgement by an advocate that “I have no context-specific authority for you on this point”. Scott makes the comment that “the application of the rules of natural justice after Ridge is almost infinitely context-dependent” (p. 247). It is a shame that the lengthy volume does not consider how decisions in the Quartet have applied in various sectors subject to administrative law (e.g. the Quartet in environmental law, the Quartet in immigration law). Further, in the introduction, the editors refer (without reference) to “those who view [the ‘break with the past’ reading of the Quartet] as wrong turn which muddied the separation of powers in the UK” (p. 13). This collection might have been better in terms of balance had it included more contributions from a political constitutionalist angle. That said, this is already a rich collection of essays, providing food for thought for even the hungriest scholar of administrative law.
