The emerging ‘Nothing to See Here’ judicial review defences – UK Constitutional Law Association

Katie R. Ochoa

The dominant narrative in the discussion over judicial review—and especially in relation to judicial overreach—focuses on major cases, and what can be gleaned from these in terms of doctrine, constitutional principle, and the balance of powers within the UK constitution. But this seems to be changing. There’s an emerging empirical trend (chp 7) in judicial review research that pushes back against this focus, and seeks to understand and portray JR in a wider context than is often presented in more traditional legal scholarship. The mindset of the empirical movement is reflected in a line from a recent Public Law article by Paul Craig, who quips: ‘I do not mind how many times Evans is cited, it still only counts as one case’ (Jan 2022, p 24). That may be true, but there remain significant problems with this mentality when assessing judicial overreach, and though the research is relevant and important, there are reasons to be sceptical about these empirical defences of judicial review. 

The ‘nothing to see here’ argument goes something like this: taking a comprehensive rather than selective perspective of judicial review, the mundane and orthodox severely outnumbers the memorable and unorthodox. And even if courts do make mistakes, or overreach, this is far from the norm. Thus, reform is unnecessary, because in the vast majority of cases the courts exercise their functions in uncontroversial fashion.

Much of the emerging scholarship was produced in response to, or in the shadow of, the Independent Review of Administrative Law (IRAL), which took a deep dive into the operation of judicial review and reported last year. As HRA reform now comes into the picture, no doubt more of these empirical defences will come forward.

The empirical defences are important because they challenge and offer an alternative to the narrative that the growth in judicial power over the past few decades is a cause for concern. As much as the defences have been a response to IRAL, they have also been a response to organisations such as the prominent Judicial Power Project, which have at times led the conversation in terms of criticism regarding particular judgments and proposing potential judicial reform. The defences focus on ‘maintaining a sense of proportion’ and not ‘weaving a grand narrative from a subset of potentially unrepresentative data’ (p 522). Indeed, they provide an alternative interpretation of this expanding power: that underneath all the rhetoric and anecdotal arguments the expansion of judicial power—especially over the past couple of decades—is nothing to worry about, as in the grand scheme of things courts rarely misbehave. 

Here I suggest three problems with the emerging defences: (1) they downplay the dynamic nature of the common law and the many innovations that have occurred over the years in relation to JR; (2) they are unable to capture the power of the judicial voice; and (3) they underscore the double standards provided to the political and legal realms. 

1. The empirical movement downplays the dynamic nature of the common law and the especially the many innovations that have occurred over the years in relation to JR

It may be the case that the numbers regarding official judicial review statistics don’t display radical differences on a longitudinal or year-by-year analysis. But the many innovations that have taken place over the past few decades cannot be ignored. As Paul Daly recently noted, ‘There is no doubt that judicial review of decisions by government bodies has increased significantly in breadth and depth over recent decades.’ 

Whether it’s the rise of novel grounds and principles for JR (legitimate expectationsproportionalitylegalitycontextual review, etc.), relaxing the rules of standing for JR (at 630 & 644), the ability of the courts to declare primary statutes incompatible with human rights obligations or read-down/read-in particular parts of statutes, the judicial articulation of so-called ‘constitutional statutes’, the rise of crowdfunded judicial reviews, the willingness of the courts to uphold abstract principles—such as access to justice and rule of law—in the face of statutory authority, or the increase in the procedural aspects of administration that the judiciary is willing to examine (see chp 16), there’s little doubt that the judicial toolkit is expanding, not contracting. This list is hardly exhaustive, but it demonstrates what we often characterise as the UK’s ‘changing constitution’ has not just taken place on the political side, and that the development of legal norms in the judicial sphere has been just as dynamic. 

Examining the landscape of JR over the past few decades Harlow & Rawlings conclude that, ‘there is scarce evidence of judicial under-reach; quite the reverse’ (p 774). But this is certainly not the picture presented in the empirical literature. It’s fascinating that scholars such as Daly, Harlow, and Rawlings look at the operation of judicial review over the past few decades and see dynamism, change, and innovation, and yet the empirical studies seem unable to capture these creative developments. 

2. The empirical movement is unable to capture the power of the judicial voice

The inability of the empirical literature to capture the judicial voice is a significant drawback. For example, a prominent case like Jackson would not easily fit into any of the empirical analyses. Although the Law Lords upheld the Hunting Act 2004, in addition to the Parliament Act procedures, the underlying principle of the UK constitution—parliamentary sovereignty—was vigorously called into question. An empirical study would not classify Jackson as judicial overreach, but it undeniably has impacted the discussion and debate around judicial power. Today there’s not one public law textbook that doesn’t mention Jackson or discuss its implications. Indeed, the latest version of Masterman & Murray (2022) has a six page spread on Jackson (pp 168-73), demonstrating the power of the judicial voice—rather than case outcome—in contributing to the ongoing discussions over judicial power. 

Other aspects of the judicial voice have been downplayed and often ignored by many writers, but could also factor into discussions over judicial overreach. In particular, although some moderate form of embarrassment is built into the operation of judicial review, given that courts often check the actions of other constitutional actors, in some instances courts have transitioned from unintentionally to intentionally embarrassing the political realm. 

The Miller I case in the Divisional Court is a prominent example of this. Here the Government’s arguments were categorised by the Court as ‘flawed’ at even ‘a basic level’ (para 85). Mark Elliott notes that, when reading the decision ‘one might be forgiven for thinking that the Government had advanced a heterodox argument of outlandish proportions’, and that ‘the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise’. 

Instances of intentional embarrassment by the courts occur relatively infrequently and would only make up a small proportion of overall judgments. But that doesn’t mean they’re insignificant or shouldn’t form part of a wider narrative about judicial power. Some of them get picked up by various news outlets or are repeated in a range of academic scholarship or expert commentary. Indeed, these wider aspects of the judicial voice are not easy for empirical studies to capture, but they can produce significant ripple effects. 

3. The empirical movement underscores the double standards provided to the political and legal realms  

When mistakes happen in the political realm, people call for actionreform, or the sacking of Ministers. The focus is often on formal inquirieslesson learning, and how the political realm can better function when future issues arise. This is all well and good, and indeed should happen. But when potential mistakes happen in the legal realm (e.g. potential overreach, significant expansion of the judicial toolkit, etc.), we’re told by empirical scholars to look at things in the round and not to form grand narratives from small subsets of data. Although the potential errors in relation to JR are often more abstract (focused on the separation of powers, for instance), any potential mistake is worth looking into. But where the political realm often welcomes such attention, the legal realm seems hesitant, even resistant to it. No doubt that mindset explains the tepid response—and that is being kind—by the legal establishment towards the formation of IRAL(see p 11). With this mindset, it’s no surprise cases such as Miller I & Miller II/Cherry are characterised as ‘exceptional’, with claims that they ‘throw no light on the ordinary working of judicial review’ (pp 1-2).

The drive to further understand and contextualise judicial decision-making, to be able to provide quantifiable evidence for claims and patterns around judicial behaviour, are worthy goals (PL, Oct 2020, pp 683-85). But being able to categorise important JR developments as ‘outliers’ or ‘exceptional’ seems to be an easy out for empiricists to downplay significant developments in judicial power. 

The arguments being used by the empirical movement—that a handful of potentially problematic outlier cases are nothing to be concerned about—would be virtually impossible to use in the political realm. It certainly wouldn’t be reasonable for Ministers to downplay a small subset of problematic decisions they made in favour of a wider rosy picture regarding their actions (e.g., the coronavirus pandemic may have been ‘exceptional’, but the government was still held to account in many ways). Today we expect all uses of public power in the political realm, especially where decision-makers may have gotten it wrong, to be further scrutinised, analysed, and picked apart: through the press, the public, Parliament, and courts. The standard for the legal realm should be no different. 

Is the emerging scholarship more than just a ‘nothing to see here’ plea? 

From a cold hard empirical perspective, Craig’s view that Evans is ‘only one case’ may be appropriate. But from a wider perspective, many issues arise with Craig’s approach regarding the significance of one particular case. After all, the common law is built on the idea that some cases matter more than others and that one (leading) case contains the potential to change the balance of constitutional powers, substantially influence the outcomes of future cases, or help determine what types of cases the courts can hear in future. It’s the reason that we still talk about and cite landmark cases such as EntickPadfieldGCHQ, and others. Whilst one case may only be a singular event in empirical terms, each case contains the potential to capture the imagination and to change the course of constitutional history.  

The emerging empirical scholarship on judicial review contains some interesting and useful insights, and does help contextualise JR in a meaningful way. But there remain strong reasons for scepticism. At present, without acknowledging judicial review’s plethora of innovations, its inability to capture the judicial voice, and also explain why certain standards that apply to the political realm don’t apply to the legal realm, the scholarship often seems more like a ‘nothing to see here’ defence of increased judicial power as opposed to an objective inquiry into understanding judicial behaviour. 

Many thanks to Richard Kirkham, Robert Craig, Mike Gordon, and Alison Young for comments on a previous version of this post.

Brian Christopher Jones is a Lecturer in Law at the University of Sheffield. 

(Suggested citation: B.C. Jones, ‘The emerging “Nothing to See Here” judicial review defences, U.K. Const. L. Blog (7thJuly 2022) (available at https://ukconstitutionallaw.org/))

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