Substantive Review, Statutory Interpretation and Bifurcation in the United Kingdom Supreme Court

Abstract

This doctoral thesis examines the interrelationship between administrative law doctrine and policymaking in the UK Supreme Court. In particular, the thesis tests the hypothesis that administrative law in the UK is hindered by the problem of ‘bifurcation’. Bifurcation arises when law and policy are conceptualised in discursively separate fields, and in particular when legal norms do not fully develop an institutionally sensitive approach to the regulation of administrative discretion. Its core effects are that judicial scrutiny of executive policy can oscillate between strong review and judicial deference. It is functionally sub-optimal, because it can risk leaving serious flaws in decision making processes untested, or dictating outcomes to decision makers. Finally, bifurcation can exacerbate differences in judicial attitude toward the appropriate extent of executive discretion. This hypothesis is tested via analysis of public law judgments handed down by the Supreme Court between 2014-2018. The analysis considers three areas of doctrine separately: proportionality analysis in qualified rights cases under the Human Rights Act 1998, substantive review under the common law, and statutory interpretation. The thesis finds qualified support for the hypothesis, discovering in all three doctrinal approaches the potential for bifurcation. At the same time, it unearths a body of judgments in which the Supreme Court takes an institutionally sensitive approach, stimulating public bodies to exercise their functions in a deliberative, participative and transparent manner. The approaches taken in these cases are used to develop and recommend a judicial attitude of ‘passivactivism’. Drawing on functionalist and pragmatist schools of thought, passivactivism seeks to structure the intensity of judicial review via consideration of whether a public body has made effective use of those institutional characteristics which led to it being entrusted with a particular decision.