Vigilance and Restraint in the Common Law of Judicial Review: Introduction

Abstract

One of the key features of the system of judicial review is the variation of the depth of scrutiny by the supervising court when examining administrative decisions. The circumstances of different cases lead to different emphases being drawn between the competing notions of judicial vigilance and restraint. But the manner in which this balance is mediated and the depth of scrutiny is modulated differs across time and across jurisdictions. This book examines the methodologies used to vary the depth of scrutiny in English and other Anglo-Commonwealth (Australia, New Zealand and Canada) systems of judicial review over the last 50 years or so.

In this book I identify four schemata which are employed to organise the modulation of the depth of scrutiny:

(a) scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible;

(b) grounds of review, based on a simplified and generalised set of grounds of intervention;

(c) intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and

(d) contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.

These four schemata – loosely drawn from the language and structure of Professor Stanley de Smith’s acclaimed judicial review textbook as it changed over its seven editions – provide structure for the study. For each of the schemata, doctrinal, theoretical and normative dimensions are examined.

Keywords: Judicial review, administrative law, scope, grounds, intensity, context, variability, deference, England and Wales, Canada, New Zealand, Australia

JEL Classification: K1, K10, K30, K40