Category Archives: Judicial Review

The Pardon Paradox

Almost every constitution in the world confers a power to pardon. Pardon powers are found in the constitutions of old states and new states, Western states and non-Western states, states with a Christian tradition and states without one. Pardon powers are part of the constitutions of states as diverse as France, Indonesia, Peru, Russia, the United Kingdom, and the United States.

Pardon powers share several features. First, the exercise of the power has the result of lifting or lessening criminal liability. Second, the power achieves this result not by changing the law, but by setting it aside in a particular case. Third, the power is held by a branch of government other than the judiciary – the executive, normally, or the legislature, less commonly. Finally, in its traditional mould, a pardon power is wholly arbitrary. Its use is unreviewable and unconstrained. (For recent departures from this traditional form of the pardon power, see my post here.)

So understood, pardon powers seem to conflict with two of the most basic principles of constitutionalism. Contrary to the separation of powers, a pardon power gives to a branch of government other than the judiciary a role in determining criminal liability in particular cases. Contrary to the rule of law, a pardon power is traditionally neither controlled by nor ruled by law.

Hence the pardon paradox: one of the most common constitutional power is at odds with some of the most fundamental constitutional principles. Pardon powers are everywhere but seem to properly belong nowhere. I argue that the paradox has a solution. Appearances notwithstanding, pardon powers threaten neither the separation of powers nor the rule of law. My argument has three steps.

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A Bayesian Approach to Ouster Clauses

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Parliament gives an official a power, and the official makes a decision you don’t like. So you go to a judge to have the decision reviewed. With any luck, the judge will agree with you and give you a remedy. That’s the normal way of things. But if Parliament is sovereign, then Parliament has the power to prevent the judge from reviewing the official’s decision. All Parliament has to do is include an “ouster clause”: a clause communicating its intention to make the official’s decisions unreviewable.

In the past Parliament has enacted what looks like an ouster clause. It did that most famously in Anisminic Ltd v Foreign Compensation Commission. But judges have tended to say that what looks like an ouster clause is, on closer inspection, not an ouster clause. It seems as if Parliament wants to oust the courts, but really it doesn’t intend that. Now, the clause in Anisminic was a bit ambiguous. It wasn’t as clear as one would wish. So, ever since Anisminic, it’s been a matter of speculation what judges would do when faced with a more clearly drafted clause.

With that as background, the interest in R (Privacy International) v Investigatory Powers Tribunal is understandable (DC | CA). It looks like exactly the sort of test case people were waiting for. There is a putative ouster clause, more clearly drafted than the one in Anisminic. What would judges do? Well, we know the Divisional Court and the Court of Appeal would do – they’ve both said that there is an ouster clause. As a result, they’ve found that certain decisions are immune from judicial review. But it’s likely that the case will be appealed to the Supreme Court, so we’re still waiting for the last word.

I want to show that Bayes’ Theorem provides a helpful way to think of ouster clauses. Bayes’ Theorem is much-discussed in evidence law, but rarely invoked in statutory interpretation. I think it suggests – I don’t put it any more strongly – that Privacy International may have been wrongly decided. Continue reading →

New Draft Paper: Plan B: A Theory of Judicial Review

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I’m an administrative law scholar, but I often suffer from private law envy. In private law, I see lots of doctrinally-oriented theory. I don’t mean theories of this or that doctrine. (There are those, too, of course.) I mean theories of whole areas of law: tort law, contract law, and the law of unjust enrichment. I mean promissory theories of contract law, corrective justice-based theories of tort law, and the like. I’m not saying these theories succeed. For all I know they don’t. It’s the ambition that impresses me, because in administrative law, things could hardly be more different. There are articles proposing theoretical accounts of specific doctrines: legitimate expectations, say, or error of law. There is the endless, exhausted ultra vires debate. And that’s about it, theory wise. I’m not sure why this is. Maybe it’s that administrative law is a relatively young area. Maybe public law scholars are preoccupied with devolution, human rights, and now Brexit. In any case, there’s a gap, and I want to help fill it.

In a new article I outline a theory of the most significant part of administrative law – the law of judicial review. Here’s the abstract:

There is no general theory of the grounds of judicial review (e.g., the rule against bias, the doctrine of legitimate expectations, unreasonableness). Here I try to fill the gap. My theory draws on ideas from the philosophy of law and the philosophy of action, but it’s a simple theory. Officials make decisions for the community. Their decisions are subject to requirements of instrumental rationality. Ideally, officials would figure out for themselves how to live up to these requirements. Because officials aren’t perfect, the law also has “Plan B”, which is for judges to ensure that officials do what rationality requires of them. The grounds of judicial review are simply the grounds on which it’s rational for officials to reconsider, retain, suspend, or apply their decisions. The “Plan B theory”, as I call it, doesn’t account for every detail of judicial review. Even so, the theory is powerful, parsimonious, fruitful, and sharply at odds with almost everything else written about judicial review.

You can download the paper here.

Comments and suggestions, no matter how small, are very welcome!

What’s so great about flexible policies?

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If there were ever a prize for “least examined ground of judicial review”, I would nominate the flexibility rule. The flexibility rule says that administrative policies must be flexible not rigid. The rule is nearly a century old. It’s part of the law of judicial review in England and Wales, Canada, Australia, New Zealand, and many other common law jurisdictions. It’s invoked in case after case. And yet the rule has received hardly any serious scrutiny. Judges rarely question it. Academics rarely write about it.

This neglect extends to the rule’s justification. Take the case of British Oxygen Co v Minister of Technology. The Board of Trade had a discretionary power to make grants for equipment purchases. To manage all the applications it received, the Board made a policy not to make grants for purchases of less than £25. British Oxygen had purchased a lot of oxygen cylinders for £20. The company didn’t quite fit under the policy, but it applied for a grant anyway. The Board refused, and the company went to court, arguing that the Board hadn’t taken into account the particulars of its case. The House of Lords ultimately sided with the Board. But it did so because it believed that the Board had ‘carefully considered’ the company’s application. Had the Board’s policy been rigid, British Oxygen would have won.

British Oxygen is a famous case. It’s probably the leading case on the flexibility rule. Yet the House of Lords never explains the rationale for the rule. So I wonder: what’s so great about flexibility? What’s so terrible about rigidity? What, if anything, is to be said for the flexibility rule? Continue reading →