Nason, S; (2015) Judicial Review in England and Wales: A Constructive Interpretation of the Role of the Administrative Court. Doctoral thesis , UCL (University College London).

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Abstract

In this thesis I construct an interpretation of judicial review in England and Wales from the ground up based on an analysis of social practice in the Administrative Court. I argue that whilst judicial review provides a forum for debates about constitutional values and rights, and the inter-institutional balance of power between different branches of state, it is still primarily concerned with doing justice for individuals in relatively non-complex cases. Both in highly contested and technical claims with broader implications, and in cases turning largely on their own facts, justice is done by way of ordinary common law reasoning and specifically by assessing whether the initial decision-maker has taken relevant considerations (including moral considerations) into account, and excluded irrelevant considerations. My first central argument is that some existing interpretations of judicial review display a lack of appreciation of the social facts of litigation and legal practice, whilst others are based on significant misconceptions about these facts. My second central argument is against the scholarly tendency to overemphasise the production and refinement of conceptual doctrinal tests at the expense of addressing the contested nature of the moral values at stake in the practice of judicial review as a whole and in individual cases. My third central argument is for my own interpretation which both fits with and morally justifies social practice. On this interpretation judicial review is about individual justice, as opposed to jurisdiction (ultra vires) or justification. I conclude that my unorthodox categorisation of the grounds of review, constructivist approach to judicial reasoning (based in part on institutional creativity), and deeper examination of relevant social facts, could form the prologue to a post culture of justification account of judicial review.

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