Executive Decision-Making and the Courts : Revisiting the Origins of Modern Judicial Review

In this book, leading experts from across the common law world assess the impact of four seminal House of Lords judgments decided in the 1960s: Ridge v Baldwin, Padfield v Minister of Agriculture, Conway v Rimmer, and Anisminic v Foreign Compensation Commission. The ‘Quartet’ is generally acknowledged to have marked a turning point in the development of court centred administrative law, and can be understood as a ‘formative moment’ in the emergence of modern judicial review. These cases are examined not only in terms of the points each case decided, and their contribution to administrative law doctrine, but also in terms of the underlying conception of the tasks of administrative law implicit in the Quartet. By doing so, the book sheds new light on both the complex processes through which the modern system of judicial review emerged and the constitutional choices that are implicit in its jurisprudence. It further reflects on the implications of these historical processes for how the achievements, failings and limitations of the common law in reviewing the actions of the executive can be evaluated. Acknowledgements Contents List of Contributors Table of Statutes Table of Secondary Legislation Table of Cases PART I: SETTING THE SCENE 1. Introduction: Judicial Review and the Quartet I. Introduction II. Continuity or Discontinuity? The Quartet and the Legacy of the Past III. The Quartet's Legal and Symbolic Legacy IV. The Unfinished Legacy of the Quartet: Questions Left Unresolved 2. Lord Reid: The Judge as Law Maker? PART II: THE QUARTET IN CONTEXT 3. Ridge v Baldwin: Executive and Judicial Approaches to Administrative Law Before and During the Quartet Years I. Introduction II. The Background III. The High Court and the Court Of Appeal IV. Natural Justice Pre-Ridge V. Ridge in the Lords VI. After the Lords VII. The Changing Climate toward Administrative Law VIII. Assessing Ridge v Baldwin IX. Conclusions 4. Judges and Parliamentary Democracy: The Lessons of Padfield v Ministry of Agriculture, Fisheries and Food I. Introduction II. The Background III. The Issues IV. The Court Decisions V. The Aftermath40 VI. Padfield and the Constitutional Architecture VII. Conclusions 5. Legitimacy and the Courts: The Forgotten Story of Conway v Rimmer I. Introduction II. The Long Road to Conway v Rimmer III. An Alternative View: Principle, Pragmatism and the need for Crown Privilege IV. Broader Themes: Courts, Administrators and the Limits of Legitimacy V. Conclusion 6. Anisminic in Retrospect I. Prologue II. Preclusive Provisions and Constitutional Principles: The Rule of Law and Parliamentary Sovereignty III. Drafting and Interpretation IV. Epilogue PART III: THE LEGACY OF THE QUARTET 7. Plus ça Change? An Empirical Analysis of Judicial Review in Modern Administrative Law I. Introduction II. Judicial Review and General Administrative Law III. Judicial Review and Individual Grievances IV. General Administrative Law and Public Interest Judicial Review V. Topics of Claim and Legal Expertise: Specialist or Generalist? VI. Controlling Access to Judicial Review VII. Funding Judicial Review and Unrepresented Litigants VIII. Concluding Remarks 8. The Reawakening of Common Law Rights: Are they Still 'Suitable for the Winning of Freedom in the New Age'? I. Introduction II. Do Common Law Rights now Provide the Same Level of Protection as the HRA? III. Will Common Law Rights Provide the Same Level of Human Rights Protection as the HRA in Future? IV. Conclusion 9. Beyond the End of Ouster Clause History? I. Introduction II. The End of History? III. Ouster Clauses and Exclusions on Judicial Review IV. Towards A Jurisprudence of Legal Exclusion PART IV: THE QUARTET OUTSIDE ENGLAND 10. Administrative Law and the Administrative Court for – or in – Wales I. Introduction II. Administrative Law in Wales5 III. The Administrative Court in England and Wales IV. The Administrative Court in Wales - Jurisdiction V. The Future of Administrative Law in Wales VI. CONCLUSION – ‘FOR’ OR ‘IN’? 11. The Rule of Law against Judicial Review? The Quartet in Scots Administrative Law I. Introduction II. Administrative Law in Scotland III. The Quartet in Scots Law IV. Lord Reid, the Quartet and Scots Administrative Law V. Conclusion 12. The Quartet Plus Two: Judicial Review in Northern Ireland I. Introduction II. Politics and the Northern Ireland Constitution III. The 'Plus Two' IV. Government by Default V. Conclusion PART V: COMPARATIVE PERSPECTIVES ON THE QUARTET 13. Israeli Administrative Law and the Quartet – One Step Ahead I. Introduction II. English Administrative Law and the Foundations of Israeli Administrative Law III. The Prophecy of the Quartet in Israel IV. Beyond the Quartet: Why was Israeli Administrative Law One Step Ahead? V. Conclusion 14. Importation and Indigeneity: The Quartet in New Zealand Administrative Law I. Introduction II. The Quartet in NewZealand III. Importation and Indigeneity IV. Conclusion 15. The Quartet in the New Commonwealth I. Introduction II. The Quartet in Historical Perspective III. Selected New Commonwealth Jurisdictions IV. Themes V. Conclusion PART VI: THE QUARTET IN THEORY, PRACTICE AND HISTORY 16. The Quartet Cases Compared I. The Legal Context II. Six Bases for Comparison III. Conclusion 17. ‘Judicial Power’ and Political Power: Reflections in Light of the Quartet I. Introduction II. Thinking about Judicial Power III. Political Power: Institutional not Personal IV. Ridge v Baldwin: The Power of Procedure V. Padfield v Minister of Agriculture, Fisheries and Food: Power, Proper Purposes and Parliamentary Scrutiny VI. Anisminic v Foreign Compensation Commission: Legislative Power and the Rule of Law VII. Conway v Rimmer: An Assertion of Jurisdiction; a Loss of Power VIII. Conclusion 18. Strategic Judging: Lessons from the Reid Era of Judicial Decision-Making I. Introduction II. The Reid Era as an Instance of Behavioural Change III. Evidencing the Shift in Behavioural Decision-Making during the Reid Era IV. A Sketch of Institutional Relationships V. A Brief Typology of Judicial Moves VI. Conclusion PART VII: CONCLUSION 19. The Real Argument about Judicial Review I. Introduction: The Significance of the Quartet II. A Fading Core: Law and Administration before the Quartet III. Dynamic Administration and the Courts: (Re)Discovering the Doctrinal Dimensions of the Quartet IV. The Quartet and the Real Argument about Judicial Review Index Introduction : judicial review and the quartet / T.T. Arvind, Richard Kirkham, Daithí Mac Síthigh and Lindsay Stirton -- Lord Reid : the judge as law maker? / Robert Reed, Lord Reed of Allermuir -- Ridge v Baldwin : executive and judicial approaches to administrative law before and during the quartet years / Robert Thomas -- Judges and parliamentary democracy : the lessons of Padfield v Ministry of Agriculture, fisheries, and food / Maurice Sunkin -- Legitimacy and the courts : the forgotten story of Conway v Rimmer / T.T. Arvind and Lindsay Stirton -- Anisminic in retrospect / David Feldman -- Plus ça change? an empirical analysis of judicial review in modern administrative law / Sarah Nason -- The reawakening of common law rights : are they still 'suitable for the winning of freedom in the new age'? / Paul Bowen QC -- Beyond the end of ouster clause history? / Joe Tomlinson -- Administrative law and the administrative court for-or in-Wales / David C Gardner -- The rule of law against judicial review? the quartet in Scots administrative law / Paul F Scott -- The quartet plus Two : judicial review in Northern Ireland / Gordon Anthony -- Israeli administrative law and the quartet-one step ahead / Daphne Barak-Erez -- Importation and indigeneity : the quartet in New Zealand administrative law / Dean R. Knight -- The quarter in the new Commonwealth / Peter Cane -- The quartet cases compared / Stephen Bailey -- 'Judicial power' and political power : reflections in light of the quartet / Alexander Latham-Gambirefl -- Strategic judging : lessons from the Reid era of judicial decision-making / Richard Kirkham and Dimitrios Tsarapatsanis -- The real argument about judicial review / T.T. Arvind, Richard Kirkham, Daithí Mac Síthigh and Lindsay Stirton "In this book leading experts from across the common law world assess the impact of three seminal House of Lords' judgments; Padfield v Minister of Agriculture; Conway v Rimmer; and Anisminic v Foreign Compensation Commission, all of which were decided in 1968. Together with Ridge v Baldwin decided five years earlier, this 'Quartet' has been widely taken to have marked a turning point in the development of court-centred administrative law, leading directly to the emergence of modern judicial review. These cases are examined in order to interrogate not only the courts' role in the protection of individual rights and interests against executive over-reach, but also the broader question of the contribution the judiciary can make to developing and maintaining good government in the United Kingdom. By doing so, the book sheds new light on both the complex processes through which the modern system of judicial review emerged, and the normative and constitutional choices that are implicit in its jurisprudence. It further reflects upon the choices made and their implications for how the achievements, failings, and limitations of the common law in reviewing actions of the executive can be evaluated"-- Provided by publisher In this book, leading experts from across the common law world assess the impact of four seminal House of Lords judgments decided in the 1960s: Ridge v Baldwin, Padfeld v Minister of Agriculture, Conway v Rimmer, and Anisminic v Foreign Compensation Commission. The 'Quartet' is generally acknowledged to have marked a turning point in the development of court-centred administrative law, and can be understood as a 'formative moment' in the emergence of modern judicial review. These cases are examined not only in terms of the points each case decided, and their contribution to administrative law doctrine, but also in terms of the underlying conception of the tasks of administrative law implicit in the Quartet. By doing so, the book sheds new light on both the complex processes through which the modern system of judicial review emerged and the constitutional choices that are implicit in its jurisprudence. It further reflects upon the implications of these historical processes for how the achievements, failings and limitations of the common law in reviewing actions of the executive can be evaluated.