Judicial Review’s Scope, Foundations and Purposes: Joining the Dots

Abstract

As judicial review has expanded beyond its heartland — namely, control of the exercise by government of statutory powers — its perimeter has become increasingly uncertain. Yet, as techniques of governance evolve — thanks, among other developments, to contractualisation, corporatisation and reliance upon commercial and voluntary entities to provide public services — delineating the extent to which judicial review applies, and should apply, in atypical settings is an increasingly pressing challenge. This article argues that the scope of judicial review cannot be delimited in principled or consistent terms without first confronting the logically prior question: what is judicial review for? It is argued that the normative foundation of judicial review consists in three interlocking factors — respect for legality and the rule of law, the need to control government, and the public interest in good governance — and that, in combination, these factors can be used to determine the appropriate province of judicial review. The analysis developed in parts I and II of the paper is applied, in part III, to several problem areas in which courts have notably struggled to adopt (or at least articulate) a coherent approach when presented with novel questions about the legitimate reach of judicial review.

Keywords: Public Law, Judicial Review, New Zealand, United Kingdom

JEL Classification: K19, K30