CPL Seminar: 'Administrative law values and the scope of judicial review of administrative action'

Speaker: Paul Daly

The purpose of this paper is to suggest that the boundaries of judicial review of administrative action have been shaped by administrative law values. Difficult issues arise at the boundaries of administrative law. For instance, the boundaries of judicial review of non-statutory powers are uncertain. The same is true of judicial review of the exercise of contractual powers by statutory bodies, or of statutory functions that have been 'contracted out' to private entities. It has been said that what must be identified to distinguish private matters from public matters "is a feature or a combination of features which impose a public character or stamp on the act" (Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, at para 65, per Lord Woolf CJ). What is needed, however, is some guidance as to what "public" might mean in this context. My thesis is that administrative law values can provide useful illumination as to the boundaries of judicial review of administrative action. I will endeavour to support this thesis by building on my previous work on values: "Administrative Law: A Values-Based Approach" in Bell, Elliott, Varuhas and Murray eds., Public Law Adjudication in Common Law Systems: Process and Substance (Hart, 2016) and "Administrative Law: Characteristics, Legitimacy, Unity", forthcoming in Elliott, Varuhas and Stark eds., The Unity of Public Law? Theoretical and Comparative Perspectives (Hart, 2018).