Grounds of Review: Foundations Reconstructed

26 Pages Posted: 9 Aug 2022

See all articles by Dean R. Knight

Dean R. Knight

Victoria University of Wellington, Te Herenga Waka - Faculty of Law

Date Written: June 1, 2022

Abstract

Modern common law judicial review in many places has been built on the idea of justiciable ‘grounds of review’. Illegality, procedural impropriety and irrationality, as Lord Diplock famously explained in GCHQ; perhaps more.1 The tradition in England and Wales, New Zealand and some other Anglo-Commonwealth jurisdictions has been to base the forensic conversation on grounds of review: the courts intervene when they identify a flaw in the exercise of power that provides a legitimate basis to quash the decision. Yet, the nature and role of this foundational organising concept has generally been assumed. Nowadays, reformation pressures have generated a new lexicon — variable intensity, standards of review, due deference and so forth — destabilising the old simplicity of grounds of review. This growing conceptual and methodological pluralism demands a deeper appreciation of the way grounds structure legal accountability exacted through judicial review, especially if grounds of review are expected to continue to play a frontline role in judicial review doctrine and method.

In this paper, I examine grounds of review as a foundational, but oddly often neglected, concept in judicial review. This includes interrogation of their provenance, their doctrinal essence, their changing expression, their implicit rule-of-recognition, and their relationship with more modern concepts such as standards of review. Grounds of review have deceptive simplicity, marrying together norms of prudential decision-making with ideas of forensic intensity and humility. A framework of grounds, sometimes evolving, also gives flexibility: differing emphasis in individual cases and continuing development over time. The analysis in this paper aims to expose the virtue of thinking of judicial review in terms of grounds of review, reconstructing grounds as a foundational concept in modern-day judicial review.

Keywords: Judicial review; grounds of review; standards of review; standards of legality; intensity of review

JEL Classification: K1; K30

Suggested Citation

Knight, Dean R., Grounds of Review: Foundations Reconstructed (June 1, 2022). Available at SSRN: https://ssrn.com/abstract=4166432

Dean R. Knight (Contact Author)

Victoria University of Wellington, Te Herenga Waka - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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