[Editor’s Note: This is the second entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]
–Joanna Bell, University of Cambridge
In a thought-provoking blogpost published earlier this year, Richard Kirkham & Elizabeth O’Loughlin made a case for greater systematic study of administrative law issues. Academic commentary on administrative law, the authors argued, often focuses on the subject’s normative dimensions. For Kirkham & O’Loughlin, however, normative research is too often ‘based on highly selective, senior court centred and sometimes inaccurate accounts of real practice.’ The solution, for the authors, lies in ‘greater take-up of deep systematic studies into discrete areas of judicial decision-making.’ There is, in other words, a need for more in-depth analysis of how administrative law issues are dealt with by the courts in particular contexts. The aim is to build up understanding of the day-to-day realities of administrative law adjudication so that commentary more broadly can be better informed.
This short blog post has two aims. The first is to discuss an example which helps to bolster Kirkham & O’Loughlin’s argument for systematic study of administrative law issues. The second is to offer some reflections on the difficulties of undertaking research of this kind.
The Utility of Systematic Study: An Example
In a paper which will be published shortly in the Modern Law Review (an early access version is available here), I offer an analysis based on systematic study of the kind argued for by Kirkham & O’Loughlin. This research seeks to understand the modern realities of review of administrative reason-giving. It is based around an analysis of 119 reasons challenge heard across the five-year period from 2014 to 2018 in the Administrative Court and appellate courts.
I suspect that in the minds of many, review of reason-giving in English and Welsh administrative law constitutes, at best, well-trodden and, at worst, dull intellectual territory. What, after all, is left to be said? We all know that the 1990s saw the courts gradually expand the circumstances in which common law fairness implies a duty to give reasons and that, despite the trajectory of these cases, the English and Welsh courts have since refused to embrace a general common law duty of reason-giving. We are also all surely familiar with the usual critiques of this position. My forthcoming paper, however, shows how systematic study of modern reasons challenges reveals review of reason-giving in England and Wales to be less well-understood, and therefore to pose greater intellectual challenges, than is sometimes assumed. For details, the reader should look to the full paper. What follows is a small snippet of some issues of importance which are revealed by systematic study in this context.
The classic 1990s cases from which analysis of reason-giving tends to proceed involved similar fact patterns. In the famous cases of R v Civil Service Board, ex parte Cunningham [1991] 4 All ER 310 and R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, for instance, an administrative decision-maker had informed an affected individual of a decision and refused to provide any information whatever about how that decision had been reached. The question for the court, therefore, was whether the decision-maker ought to be able to insist on absolute silence towards that individual. Academic literature has grappled with this question in detail and often.
Systematic study of recent reasons challenges, however, suggests that the modern courts tend to be faced with this issue relatively rarely. Across the case sample analysed for the purposes of my paper, it was greatly more common for decision-makers to offer at least partial reasons for their decisions than not to disclose any reasons at all. A number of considerations emerged which help to explain why this was so. In over half of the cases analysed, for instance, the decision-maker was under a specific statutory duty to give reasons, indicating that legislative obligations of this kind are more prevalent than is sometimes imagined.
As I explain in the paper, these observations have important consequences for academic study of reason-giving. It means, for instance, that the relatively underexplored issue of when reasons are legally sufficient is of far greater practical importance than other questions which receive scholarly attention. In the second, these observations also shed new light on the underexplored question of why the courts have not regarded the case for a general duty to give reasons as being especially compelling. Many of the major arguments in favour of a general duty have, for instance, were developed at a point in time when the courts were dealing with legal questions of a different kind to those they commonly grapple with now.
The Difficulties of Systematic Research
Systematic study of administrative law issues is capable of generating deeply important insights and highlighting popular misconceptions. It is, however, a challenging and time-consuming form of research. Identifying case samples for study can be tricky and involve navigating a number of databases and sampling different searches. Reading and analysing significant bodies of case law takes up a great deal of time. One particular issue is that it may not be possible to identify trends which it is interesting to track until one is a considerable way into a research project. A related frustration is that beginning a systematic study of case law can be a daunting prospect because it is not possible to know with certainty that anything of major interest will emerge.
With this in mind, it is useful to conclude this post with two closing reflections. Firstly, it is important to be transparent about the drawbacks of systemic study in administrative law. Only by being frank about the difficulties of this sort of research can findings be understood critically and contextually. Open and honest conversation will also help to build good practice. Secondly, there is reason to think that systematic study of administrative law issues must be a collective endeavour. If the aim is to build a rich and detailed understanding of the day-to-day realities of administrative law adjudication, this cannot be done by a single author in a single article. It is, rather, a long-term project which requires the attention of many minds.
Suggested Citation: Joanna Bell , Showcase–New Directions in Administrative Law Theory: Systematically Studying Review of Reason-Giving, Int’l J. Const. L. Blog, Sept. 11, 2019, at: http://www.iconnectblog.com/2019/09/showcase–new-directions-in-administrative-law-theory:-systematically-studying-review-of-reason-giving
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