Judicial Review, Methodology and Reform
Forthcoming, Public Law January 2022
33 Pages Posted: 21 Jul 2021
Date Written: June 28, 2021
Reform of judicial review has featured prominently in UK Ministry of Justice initiatives, with independent panels established on judicial review, and the HRA, and the possibility of an investigation concerning the Supreme Court. These initiatives have been fuelled prominently, albeit not exclusively, by claims of judicial overreach, but they have not been empirically tested. There is indeed an inverse relationship between the force of such allegations, and the empirical evidence that underpins them. This article seeks to redress this important gap.
It begins with the conceptual connection between judicial review, allegations of judicial overreach and reform. The focus then shifts to the empirical evidence that underpins such claims. This is beset by a twin malaise, mining and lumping, and path dependency.
Mining and lumping captures the historical methodological error whereby a proposition is sustained by searching for supporting evidence, aggregating it and ignoring contrary evidence. It is manifest in four ways, which are termed the macro, the micro, the temporal and the transformative. This is followed by consideration of what would have to be shown quantitatively and qualitatively to sustain the claim of judicial overreach for any year.
Path dependency captures the idea from political science that policy choice may be constrained by history. It can also inform intellectual thought, such that we think about an issue along a well-trodden intellectual track. It is manifest in the way we consider judicial review. The ‘issue’ is cast as judicial overreach, thereby ignoring four important facets of judicial review. We ignore contrary evidence; we disregard the normal incidence of review; we disregard circumstances where judicial review can favour the legislature or the executive; and we fail to consider that judicial review might be too limited in certain instances. This is followed by consideration of the quantitative and qualitative implications of this analysis for discussion of judicial overreach.
The final section of the article focuses on the principle of legality. It received attention in IRAL and in the MOJ’s response. The latter regarded the court’s jurisprudence as evidencing judicial overreach, thereby echoing some academic literature. We must, however, be mindful of the very small number of successful actions; we must be equally mindful of cases where the courts rejected such claims, since ignoring this data gives an unbalanced view of judicial practice; and we must take care to distinguish successful claims that are controversial from those that are not. When the data is thus analysed the claims of systemic judicial overreach do not withstand examination.
Keywords: judicial overreach, empirical assessment, path dependency, mining and lumping, judicial review
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