Dr Tim Sayer

Questions of statutory interpretation form a significant portion of administrative law cases. Accordingly, judicial methodology in this area requires careful consideration by public law commentators. The core aim of this article is to question the general orthodoxy that statutory interpretation is invariably a question for judges. In recent times, one prominent argument has been those between jurists arguing that interpretation should be the realisation of Parliament’s intention (‘intentionalist’), and those who prefer the closely related but subtly distinct focus on its objective purpose (‘purposivist’). I argue that this argument, framed as a question over the inter-institutional relationship between Parliament and the courts, focuses on how interpretation is carried out without considering who is best placed to do the interpreting. Given, as I demonstrate with a series of case studies, that in hard cases the distinction between interpretation and discretion/policymaking can become obscure to the point of nullity, the argument fails to consider institutional arguments for judicial deference on questions of law. Moreover, and counterintuitively, the arguments of the intentionalists/purposivists can be used to bolster an argument for deference. My conclusion adopts a wider lens, setting out a broader constitutional argument for, and addressing objections against, cautious and context-sensitive deference.

This article critiques the ability of the ‘manifestly without reasonable foundation’ (MWRF) standard of proportionality review, applicable in cases involving questions of socioeconomic policy, to constitute an effective model of rights review. In particular, in attempting to reconcile effective rights protection with appropriate judicial deference on policy questions, MWRF is prone to polarisation into strong and weak forms of review. This is demonstrated with reference to MWRF cases decided by the UK Supreme Court. The jurisprudence comprises two ‘streams’: one showing deferential respect for executive/legislative decision making, the other showing a greater judicial willingness to protect and enforce rights and values. The question of whether a judge inclines to one or another stream often depends on the contextual factors to which they are willing to give decisional weight: more deferential judges tend to focus on structural reasons (e.g. socioeconomic context); whereas judges more protective of rights tend to focus more on individual impacts and wider legal norms. While such a pattern may predictable in a system of rights adjudication, the extremity of the force is not. The former, more deferential, approach has become increasing and significantly dominant over time, as those justices inclined to focus on contextual factors demanding deference have become more influential and numerous on the Court. However, it is suggested that the subordinate, more intensive stream, has not been entirely suppressed. The overall effect is to leave significant flaws in policymaking unscrutinised, while occasionally and unpredictably cutting across administrative discretion. While the recent case of R (SC) v Secretary of State for Work and Pensions can be rightly criticised for excessive deference and conservatism, this article claims that it is in fact part of a more general trend that can be seen in other cases over the last decade or so.

Debates over bifurcation in substantive review persist; should Wednesbury review subsist alongside a
proportionality-based model, or should substantive review depend solely upon proportionality? Drawing on an analysis of UK Supreme Court decisions between 2014 and 2018, we argue that the academic debate and much recent jurisprudence misconstrue substantive review. Both proportionality and Wednesbury display their own internal ("intra-doctrinal") bifurcation between judge-centric and deferential approaches. Although proportionality’s application under the Human Rights Act 1998 has generated culture of justification in rights cases, fixation on the test’s rights/aims balancing aspects has embroiled judges in value adjudication. Faced with preferring either legal or policy aims, the Court has at times fluctuated between strong and weak oversight. Traditional Wednesbury review, while methodologically distinct, can also swing between highly deferential reasonableness review and more robust review drawing, for example, on statutory purpose. Substantive review thus currently risks contradictory pathologies; deploying legal trumps to preclude political decision making and permitting clear policy failures. These pathologies stem from UK public law’s inadequate engagement with substantive decision making. We therefore re-evaluate functionalist constitutionalism, advancing an active functionalist model which urges public lawyers, outwith instances of illegality, to maximise institutional effectiveness. By prioritising legitimacy as an organising principle for judicial review, this approach sustains political decision making within the bounds of a liberal democratic order.

This is an analysis piece discussing the rule of law in two recent claims regarding historical abuses during the Mau Mau insurgency in Kenya by the colonial government. The piece argues that these two cases represent the tendency of the Diceyan concept of the rule of law to divide into either very strong or very weak review of government action. It urges careful consideration of the kinds of case, including those involving Britain’s colonial past, where review is more likely to be of the latter character.