This is the first piece in a series of comments offered on Paul Daly’s book Understanding Administrative Law in the Common Law World (OUP 2021) at a meeting hosted by the public law cluster at the Essex Law School on 9th March 2022 and gathering Paul Daly, John Bell, Peter Cane and Giacinto della Cananea. Paul Daly provided a summary of his book earlier, available by clicking here. He will kindly reply to the comments.
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The work Paul Daly has undertaken is interesting and involves coverage of an impressive range of case law from different jurisdictions within the common law. I read it and learnt a lot, especially about the principles that he thinks underpin the common law of judicial review. Inevitably things are left out because choices have to be made. It may seem unfair to criticise the author for the book he has not written. Maybe the usefulness of my remarks is to encourage lines of enquiry by him or by others which can complement what he has written.
My remarks are limited to identifying some questions which a comparative lawyer interested in European legal systems might have in reading this book.
- A WORK OF IUS COMMUNE
From a comparative perspective, this work is interesting because it represents a presentation of a ius commune administrative law. Starting from the practitioner’s perspective, it presents arguments and cases that could be cited in any of the featured major common law jurisdictions (UK, Ireland, Australia, Canada and New Zealand). Cases are cited almost inter-changeably. This is like the 17th century ius commune described by David Ibbetson, where Italian courts might cite Polish and Dutch cases. There is no way that a French public lawyer would cite Italian or German case law as freely. For those lawyers, public law is nation-specific, unless you are applying common provisions in the European Convention or EU law.
The core idea of Daly’s work is to show that certain principles or ideas shape the scope of judicial review in the common law, even though the balance between those principles may not be the same. It does not seem to me that that these principles are peculiar to the common law. It might well be that continental European would put more emphasis on the public interest or public services as a contributing idea. But his list and description would not seem at all alien to lawyers from non-common law systems.
Daly’s presentation takes for granted a background of features which enable this ius commune:
- Commonality in legal education: the fact that many leading judges and scholars have been educated in England (e.g. as Rhodes or Tapp scholars) together with other Commonwealth students. Texts from one country are frequently studied in others.
- Commonality of careers: Cane and Daly neatly illustrate the frequency of careers that involve more than one jurisdiction. Barristers may also work in more than one jurisdiction. This is rarely the case in continental Europe where academic and professional careers are nation specific, not least for linguistic reasons.
- Commonality of institutions: Until relatively recent years, the Privy Council provided a common institution. Commonwealth lawyers do meet together (e.g. the conference of the Commonwealth Lawyers’ Association). In recent years, the Public Law and Private Law (Obligations) Conferences have shown great similarities between jurisdictions – presenters are not typically presenting their jurisdiction, but common themes.
In a way, it is a pity that the reasons for the plausibility of the ius commune are not explained.
Perhaps the most significant feature missing from Daly’s presentation is context. In studying different European jurisdictions, I have found it necessary not just to look at the principles of judicial review, but also the practical significance of that branch of law. Some questions I would typically ask are:
- How far do people use judicial review? Are there general rules or typical appeal remedies (what Daly calls merits) and how significant are they? Are there other forms of administrative adjudication (to use Cane’s term)? In many countries I know, judicial review is very small compared with other forms of administrative adjudication to administrative redress. In England and Wales Judicial Statistics for 2019/20 show that 393,000 appeals were made to tribunals plus 1869 statutory appeals to the High Court, compared with 2842 applications for judicial review. (I.e judicial review is less than 1% of all administrative adjudication). Indeed in 2019, only 100 applications were successful, 30% against local authorities and 30% against the court system. In 2020-21, the Ombudsman made 23,124 decisions.
- What subject matters are typical of judicial review? In many countries immigration and asylum is significant (in England and Wales, it was 40% in 2020). In other countries, tax is a major element. In England, only 6 applications for leave were successful in 2019 and 5 in 2020, with none successful on their merits. So, when we talk about judicial review, are we talking about handling the same sorts of problem?
- Court organisation matters. How easy is it for a complainant to access a tribunal or an Ombudsman, rather than judicial review? Are there regional issues, e.g. are tribunals organised regionally and courts centrally? Daly acknowledges the issue of costs and so this brings out the issue of how far judicial review actions (especially for the poor) need the support of NGOs. Does this play out differently in the different countries, eg in the strength of NGOs in particular subject-matter?
- Constitutional context: may be significant. For example, does the existence of a federal system give rise to issues of competence between levels of government? Daly points to the issue of the Australian understanding of the separation of powers. Does that make a difference to the sorts of issues that are litigated or the sorts of remedies that are granted?
3. BENCHMARKS AND INFLUENCES
In my experience of European countries, there are often external benchmarks against which courts and scholars compare their system. In much of Europe, the Strasbourg and Luxembourg courts tend to be a filter through which good ideas in the rest of Europe are brought to the attention of national jurisdictions, rather than national jurisdictions comparing each other directly. With the virtual disappearance of the Privy Council, how do mutual influences and benchmarking happen in the common law world? In much of the second half of the 20th century, the US was a major reference point. US law has diverged and the jurisdictions Daly deals with have become more mature. So where are the influences now? In particular, does the UK’s excursion into Europe (and Ireland’s continued place within it) make a difference? How does the mix of influences from within and outside the common law affect the law? After all, it is not just the EU that is covered by the SIGMA principles of public administration, but the OECD as well. In the modern world, can the common law be studied in a way that is self-contained?
I conclude by repeating that this is a very good book, especially within the common law world. The result of it being good is that there are new projects and ideas that can spin off from it. Deepening Daly’s comparative law approach would be one way forward to bring out the richness of his insights into the subject.
Posted by John Bell (Emeritus, Cambridge).
Suggested citation: J Bell, “COMMENTS ON PAUL DALY, Understanding Administrative Law in the Common Law World“, BACL, available https://british-association-comparative-law.org/?p=4518.
 D. Ibbetson, ‘English Law and the European Ius Commune 1450-1650’ (2006) Cambridge Yearbook of European Legal Studies 115.
 These are:
- Individual self-realisation: Protecting individual interests (not just rights)
- Good administration: Avoid compromising effective and efficient (good) administration
- Electoral legitimacy: Respecting the roles of elected decision-makers
- Decisional autonomy: Keeping distinct roles for judicial and administrative decision-makers.
 See https://publiclawconference.law.cam.ac.uk/ and the private law Obligations conference: https://law.uwo.ca/conferences/obligationsx/index.html
 See already W. I. Jennings, W. A. Robson and E. C. S. Wade, ‘Administrative Law and the Teaching of Public Law’ (1938) J. S. P. T. L. 10 and B. Schwartz, Law and the Executive in Britain (New York, 1949) before the publication of the first major textbook, J. A. G. Griffith and H. Street, Principles of Administrative Law (London: Pitman, 1952). Also later authors such as P. P. Craig, Public Law and Democracy in the United Kingdom and the United States of America (Oxford: Oxford University Press, 1990); I. Harden and N. Lewis, The Noble Lie: The British Constitution and the Rule of Law (London: Hutchinson, 1988).
 This book eschews references to EU and ECHR jurisprudence, but refers to many scholarly works that make the comparison between the UK and Ireland and those two legal systems which were (at least at the time) part of both legal systems.