2 - UK administrative law: challenges

Summary

1 Introduction

The previous chapter considered the foundations of UK administrative law; this chapter looks at the challenges it faces. There is an inevitable subjective dimension as to what should be counted as a challenge for these purposes, and there are doubtless other issues that could be raised. The topics considered are, however, central.

The discussion begins with caseload and the impact that recent government reforms have had on the availability of judicial review. This is important since the reforms will shape access to review in the forthcoming years. While there are understandable governmental concerns about the number of applications for judicial review, the reforms are nonetheless problematic.

This is followed by discussion of the political constitutionalist challenge to legal constitutionalism, which has been the subject of lively exchanges. The foundational dimensions to this challenge are examined, followed by the historical and the normative dimensions. The difficulties with these aspects of the political constitutionalist argument are revealed. So too are the problems with the proposals advanced by political constitutionalists as to their preferred conceptual foundation of administrative law and their vision of its legitimate doctrinal reach.

The focus then shifts to the challenges faced by UK administrative law in terms of procedural and substantive judicial review. The discussion concerning process focuses primarily on the difficult determinations that the courts have had to make flowing from legislation enacted in the post-9/11 world. Much judicial and academic commentary focuses on the appropriate limits to substantive judicial review given the fact that courts may be required to make difficult determinations balancing incommensurable variables, or complex normative assessments. The assumption is that the judicial role in public law is different in this respect from that in private law. This is, however, far from self-evident, as the subsequent discussion will show. The analysis then turns to the standard of substantive review, and engages with the vibrant debate concerning the deference/respect/weight that courts ought to accord to primary decision makers.

The final two sections of the chapter address vertical challenges faced by UK administrative law as it interacts with other legal systems at the regional and international levels. The first of these sections addresses the judicial relationship between UK law, EU law, the ECHR and international law.