Improving Decision-Making Systems Through Judicial Review

点击翻译按钮获取中文摘要

My proposed research aims to challenge the 'received emphasis on identifying a specific erroneous decision which has resulted in actual harm to the claimant' (Adams-Prassl and Adams-Prassl, 2020) in judicial review cases, and instead consider how judicial review can be used to identify and tackle problems at a system level before they concretise in individual cases. I identify two themes in contemporary judicial review which are insufficiently addressed in administrative law scholarship. Firstly, individual claimants face ever more insurmountable barriers to accessing the mechanisms of justice in administrative law. Secondly, the courts are seeing more cases in which the root of a claimant's problem is not an individual decision taken about their case, but the overarching policy according to which the relevant executive department decides all cases, given the usefulness of such policies in facilitating modern administration. These issues are closely interrelated, as in some cases government policies are challenged on the basis that they hinder access to justice.I believe that in order to address these challenges effectively and coherently, it is necessary to confront some of our most fundamental assumptions about how the judicial review process should operate. Namely, we must ask whether judicial review must always take the same form: typically, a challenge brought by an individual claimant who is seeking redress for some wrong already done to them by an unlawful executive decision.I will examine the English courts' approach to judicial review of government policy, in particular the recent decisions of the Supreme Court in R (A) and BF (Eritrea) establishing a tripartite test for finding a policy to be unlawful at common law. I will consider in detail the line of previous Court of Appeal jurisprudence on policies which create a 'significant risk of unlawfulness in more than a minimal number of cases', which was held by the Supreme Court in R (A) not to exist as a separate principle from the tripartite test. I will then evaluate how subsequent policy challenges, such as Bell v Tavistock, have applied the Supreme Court's reasoning, in order to assess the potential of the tripartite test for tackling system-level injustice, as well as any pitfalls.Given the close relationship between policy review and access to justice, I will examine the barriers facing would-be administrative law litigants and consider whether a new approach to standing for issue-focused campaign organisations could help to fill the resulting justice 'gap'. To this end I will study the theory and case law of campaign standing, going back to World Development Movement. I will pay particular attention to the recent work of the Good Law Project, as an organisation with very broad articles of association which has been viewed by the courts as attempting to create standing for itself through a general commitment to promoting good governance. I see this as the paradigm case of an organisation seeking to pre-empt rather than retrospectively remedy public wrongs, and will investigate whether there would be benefits to creating an official watchdog after this model.Reconceptualising judicial review such that it does not depend on individual claimants challenging specific decisions opens up the possibility of viewing it as a far more communicative process, concerned explicitly with the public interest in good and transparent decision-making. In an age of government and press hostility towards judicial review claimants, a new understanding of the relationship between the executive and the judiciary that views the courts as supporting rather than hindering the work of governance may be very welcome. I will investigate how these system-level approaches to judicial review litigation could facilitate new forms of communication and cooperation between the different branches of government, in line with a 'green-light' theory of judicial review (Harlow and Rawlings, 202