Knight, Dean
(2014)
Vigilance and restraint in the common law of judicial review: scope, grounds, intensity, context.
PhD thesis, London School of Economics and Political Science.
Abstract
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. In this thesis I identify the main approaches employed in judicial review in England, Canada, Australia and New Zealand over the last 50 years or so:
(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.
This thesis has three dimensions. In the doctrinal dimension, I isolate the four schemata from the case law throughout the Anglo-Commonwealth. Professor Stanley de Smith’s acclaimed judicial review textbook – particularly its changing language and format – is used to provide structure for the study. In the conceptual dimension, I identify the conceptual foundations of the schemata, exposing their commonality and differences. I use the scholarly debate about the constitutional underpinnings of judicial review to provide insight into the justifications advanced for the different approaches. In the normative dimension, I evaluate the virtues of the different schemata. The qualities of the different approaches are drawn out, using Fuller’s ruleof-law-based criteria to guide the assessment of efficacy. Overall, the grounds and intensity of review schemata generally display the most virtue when measured against these criteria.
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