Over the last three years the UK Supreme Court has undertaken renewed efforts to forge a jurisprudence of rights within the common law of judicial review in cases such as Kennedy v Information Commissioner, R (Osborn) v Parole Board, Pham v Secretary of State for the Home Department, Keyu v Secretary of State for Foreign and Commonwealth Affairs, and R (Unison) v Lord Chancellor. Much has been written of these developments from a contemporary perspective, with a great deal of commentary dedicated to analysing individual cases. The contribution of this paper is to place these developments in the context of the development of the modern system of judicial review, and to offer a ‘long view’ of the role which the House of Lords and Supreme Court have attributed to ‘rights’, including human and fundamental rights, within administrative law doctrine. In turn this serves to deepen our understanding of current trends. The paper charts the place of rights within administrative law over four decades, from 1977 to 2017. The paper identifies and analyses four episodes in the interrelationship between administrative law and ideas of rights within the House of Lords and Supreme Court. First, from the late 1970s and through the 1980s the House of Lords actively sought to forge an integrated, unified and coherent field of public law, and in doing so constructed the basic superstructure of contemporary judicial review. This new system was based in a public interest conception of public law which held that public law’s principal function was to ensure proper exercise of public power in the public interest. The corollary of this focus on protection of the public interest was that the courts marginalised the role of rights within judicial review. Second, through the 1990s the House of Lords came under pressure, due to the UK’s commitments under the European Convention on Human Rights, to give greater recognition and protection to basic rights within administrative law doctrine. The House of Lords duly took a number of steps to afford basic interests greater protection through the common law of review, albeit the courts were constrained in how far they could develop the common law by the public interest framework that had only recently been erected. Third, the 2000s saw the entry into force of the Human Rights Act 1998, which created a field of law specifically constituted to afford strong protection to basic rights and which afforded English courts the tools to ensure compliance with Convention obligations. With the emergence of this new field the pressure that had built up during the 1990s to develop the common law of review along rights-based lines fell away. With this pressure release the common law continued to develop broadly in line with the public interest framework put in place during the 1980s. Fourth, from around 2014 onwards the new Supreme Court has shown renewed interest in developing a rights-jurisprudence at common law, and ‘synthesising’ the common law of review and the law under the HRA, albeit there are divisions among the Justices as to how precisely the two fields ought to interrelate. The result has been that the common law of review, and human rights law, have been pushed into a state of flux. The new jurisprudence is characterised by a core tension. On the one hand the Justices have been moved to introduce a new discourse of rights into common law review by extra-legal drivers, including Brexit and government threats to repeal the HRA. On the other hand responding to these ‘external’ concerns is liable to undermine the ‘internal’ coherence of the common law of review. Thus, the paper tells a story of an apex court steering a significant field of common law doctrine over time, with a view to contextualising and analysing contemporary trends. In doing so the paper illustrates the different forces that have shaped judicial development of the common law of judicial review.
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Aug 16, 2018
Ewan Mcgaughey 
Open Access