Modulating the Depth of Scrutiny in Judicial Review: Scope, Grounds, Intensity, Context

Abstract

This article focuses on the manner by which the courts modulate the depth of scrutiny in judicial review. Building on previous work that demonstrates that (overt and covert) variability is ubiquitous in judicial review, this article frames and explains the key methods employed to modulate the depth of scrutiny in New Zealand. The key methods are located within the broader Anglo-Commonwealth experience and are explicated in terms of four schemata drawn from the changing language and structure of successive editions of de Smith’s distinguished textbook: scope of review, grounds of review, intensity of review and contextual review. A set of criteria for evaluating the virtues of the different schemata is then proposed, based on Fuller’s principles of legality.

Keywords: Administrative law, judicial review, intensity of review, grounds of review, scope of review, rule of law

JEL Classification: K1, K3