Crime Research Centre

Criminal Law Reform Now

In September 2016 the Crime Research Centre hosted a major international reform conference, Criminal Law Reform Now.

The Criminal Law Reform Now Network was established as a result of this conference. See tweets from the conference at #CLRNSussex.

This was a three-day conference which discussed potential reforms to criminal law, and formed part of the larger initiative Law Reform Now 2016-2020, a series of events coinciding with the Law Commission consultation on their 13th Programme of Law Reform. The Sussex Law School also hosted a two-day conference on public law reform, Public Law Reform Now.

The Law Commission is an independent body that keeps the law under review and, where needed, recommends reforms to make the law fair, modern, simple and as cost-effective as possible. With this in mind, every three to four years, the Law Commission engage in a consultation on law reform – asking the public and stakeholders to highlight areas of the law that are in need of review. The Law Commission, guided by their Protocol with Government, will then select appropriate projects to take forward within each new Programme.  

Coinciding with the Law Commission’s consultation for the 13th Programme, both conferences discussed multiple recommendations for law reform. Speakers at the conference (half invited and half recruited from a call for papers) presented their ideas for law reform in a lively and interactive environment, with each paper followed by Q&A.

The conference was also the official launch event for the new Crime Research Centre.

Papers were then submitted to the Law Commision for consideration. You can read the abstracts below.

Criminal Law Reform Now

Professor Peter Alldridge, Queen Mary University of London - “Lawyers’ law” and the limitations of the role of reform bodies in criminal law

Moving the House of Lords’ debate on the first report of the Law Commission (which repays rereading), Lord Lloyd of Hampstead spoke of the ‘old fallacy’ that there was a discrete category of ‘lawyers’ law’ separate from the rest. He drew an immediate response from Lord Reid, and Lord Gardner, chairing the debate, did not express a view on this point. The paper will suggest that the ‘fallacy’ is still with us and has operated to restrict the law reform process. By this I don’t mean only, or even predominantly the Law Commission, but the interaction between legislators, executive members and law reformers. The paper will trace three recurrent and related themes.

  1. Depoliticization: of criminal law contemplated by the Gardner mission means that law reformers have never dealt head-on with the major recurrent in criminal justice (drugs, organised crime, terrorism, prisons) or individual liberty (police and other investigatory powers, privacy and sexual autonomy, death penalty) that have contributed so significantly to the alteration of criminal justice over the past 50 years.
  2. Decriminalisation: Failure to dispense with common law offences conspiracy to defraud, cheat, murder, conspiracy to corrupt public morals conspiracy to outage public decency public nuisance, and, more generally failure to decriminalise anything much since the 1960s: the Commission is currently looking for reasons why we can’t survive without an offence for which, until very recently, there were prosecutions once every decade.
  3. Incrementalism: a repeated argument in Law Commission documents proceeds along the lines “criminal offence a extends to case x but not case y: case x is, in relevant respects, like case y: therefore the offence should extend to case y.” The alternative argument: “criminal offence a extends to case x but not to case y: case y is, in relevant respects, like case x: therefore the offence should not extend to case x.” is never heard.

The implication of these matters is that the Law Commission’s approach to whichever matters it considers should be changed in various ways.

Chara Bakalis, Oxford Brookes University - Re-thinking cyberhate laws: modernising the legal regulation of online hate 

The phenomenon of cyberhate and online abuse is a growing challenge for our digital society. The impact on victims is huge, but the law struggles to give the police the necessary tools to deal with the problem effectively. The issue is attracting political attention: there are plans to introduce a Private Member’s Bill by Liz Saville Roberts MP calling for a review and consolidation of current cyberhate legislation; and Yvette Cooper MP and Maria Miller MP launched their Reclaim the Internet campaign last week, a key element of which focusses on law reform in this area.

Although legislation currently exists to combat cyberhate, it is outdated, cumbersome and inadequate at dealing with online abuse. It was mostly created before the growing presence of the internet in our lives, and thus is not able to deal with the way in which hate is perpetrated in a Web 2.0 world. There are a number of problems with the current law:

  • the legislation is disparate and it is not easy for prosecutors to use;
  • the offences are often of a minor nature which do not reflect the harm caused by online hate;
  • regulation is designed around identifying and punishing the perpetrators of hate, with inadequate emphasis being placed on the liability of ISPs, and the need to give the authorities the power to remove offending material from the internet;
  • the relationship between the current cyberhate offences and hate crime legislation is uncertain and unsatisfactory;
  • the threshold for certain offences, such as the stirring up hatred offences is too high for successful prosecutions to be likely;
  • and the legislation assumes ‘cyberhate’ is an amorphous mass without sufficient attention being paid to the different forms that hate takes on the internet.  

Reform is urgently needed to review the current legislation in order to ensure victims of online hate are protected. However, it is also imperative that any changes in the law respect our fundamental freedom of expression. Reform is particularly pressing because tech giants such as Facebook, Twitter and Whatsapp have begun to self-regulate in order to combat hate speech. However, in order to ensure these endeavours strike the appropriate balance between protection against cyberhate and free speech on the internet, clear legislation needs to be in place to provide a framework for such decisions. A review of this sort requires a balanced, non-political and thorough examination of the issues to ensure the successful reform of the law.

Dr Charlotte Bishop, University of Exeter - Traumatised, Vulnerable and Intimidated: Special Measures for Domestic Violence Victim-Witnesses

This paper will propose reforms that will ensure that the recent developments in the legal response to domestic violence (DV), culminating in the new offence of ‘coercive and controlling behaviour’ under Section 76 Serious Crime Act 2015, lead to an increase in the number of prosecutions and convictions for DV offences. Although obstacles to the successful prosecution of DV are complex, it is clear that the reluctance of victim’s to report and/or be a witness in criminal proceedings play a significant part (see Robinson 2006).

The proposed reforms to the position of witnesses in DV proceedings would encourage more victims to report abuse and participate in the criminal justice process, thereby reducing the high attrition rate in these cases (see Hester 2005).

The proposed reforms are based upon recognition of the often traumatic nature of DV and the fact that victims are frequently reluctant to participate in criminal proceedings due to fear and intimidation. Memory recall for traumatic experiences is fragmented and unclear due to the impact that trauma has upon the brain’s processing and storage of information (Brewin 2010). This has a significant impact upon a victim’s ability to give a coherent and convincing narrative of the abuse in court, thus undermining witness credibility.

These barriers to prosecution could be reduced through the following measures, which would be presumed necessary in DV cases, unless rebutted by the victim:

  • the use of pre-trial witness interviews by the CPS to clarify witness statements and enable witnesses to account for any apparent discrepancies ahead of trial;
  • review and extension of the special measures for vulnerable and intimidated witnesses under the Youth Justice and Criminal Evidence Act 1999 to victims of DV;
  • expert testimony routinely provided to the jury to explain the impact of DV and trauma on a victim’s responses and ability to provide a clear account of the abuse.
Gemma Davies and Adam Jackson, Northumbria University - The impact of Article 8 ECHR on the retention and disclosure of criminality information in the UK

It was established in R (L) [2009] UKSC 3 that Article 8 ECHR is engaged by the retention, storing and sharing of criminality information. The ECtHR in MM [2012] ECHR 24029/12 held that: "...indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable."

As a result of the consistent adverse findings of the courts the rules for the retention and disclosure of criminal records information were changed. Certain convictions and cautions are now filtered out depending on the age of the conviction/caution and whether or not it appears on a list of offences that will never be filtered. Despite the fact that the regime could be described as more “nuanced” in the recent case of P [2016] EWHC 89 the court reached the conclusion that the Act in its present form fails to meet Article 8 ECHR requirements. There could be no rational for thinking that the minor convictions of the claimants bore, for the rest of the claimants’ lifetime, a rational relationship with the objects sought to be achieved by the disclosure provisions of the Act simply because there was more than one conviction.  In the case of G [2016] EWHC 295 the offence was serious enough to be disclosed but there was no opportunity for an individual assessment of the applicant’s case. The absence of any procedure enabling a decision-maker to examine all the relevant considerations resulted in the statutory regime being incompatible with the claimant’s right.

It is clear from the emerging body of case law that there are still significant problems with the system of retention and disclosure in England and Wales and Northern Ireland despite a “bright line” system which does differentiate between different types of convictions and their age.  The law has already been amended once unsuccessfully. This is an area which affects millions of people and is causing substantial unfairness, interfering with a person’s ability to seek employment and leave their criminal past behind them. It is suggested that the Law Commission review the differing and now complex retention regimes across the UK and consider the potential expansion of the role of the Chief Officer and Independent Monitor (discussed in [2015] EWHC 2085) to take a more proactive role in relation to “hard cases” alongside consideration of the retention regime itself.

Professor Shachar Eldar, Ono Academic College Israel - Reconstructing the Ambit of Criminal Attempt: Take Two 

The proposal traces the failed effort to reform the law of criminal attempt in CP 183 (Oct 2007) and LC 318 (Dec 2009). Learning from the shortcomings of the past, guidelines for a more theoretically sound and viable solution will be offered, particularly in relation to:

  1. delineating the lower boundary of attempt liability;
  2. excluding offences from the application of attempt liability and;
  3. exemption from liability in cases of abandonment.
Professor Sally Kyd, University of Leicester - Done to Death? The Reform of Homicide Law 

Despite repeated calls for the law of murder and involuntary manslaughter to be reformed, it remains an uncodified area of law, reliant on the common law developed through the centuries to define its parameters. It is now ten years since the Law Commission most recently recommended the reform of general homicide offences, applying its “ladder” principle to propose statutory offences of first and second degree murder, and manslaughter. Despite these recommendations not attracting the political will to find their way onto the statute books, it is also ten years since parliament legislated to create new vehicular homicide offences, adding to the increasing body of codified homicide offences in a limited number of contexts, under what Horder labels the regulatory or bureaucratic-administrative model.

This paper will argue that the uniqueness of homicide is both a facilitator and an obstacle to bringing about law reform in this area. The arc of liability for homicide sweeps extremely widely under both the recently created statutory offences, and the pre-existing law of involuntary manslaughter, particularly through the species of constructive or unlawful act manslaughter. Despite the latter incorporating those whose blameworthiness in relation to the causing of death can be argued to be minimal, the gaps left by the common law in labelling as manslaughterers those who change their “normative position” by engaging in violent conduct has been filled by particularly punitive statutory offences.

What both the common law model and regulatory model of homicide offences have in common is their tendency to create case law testing some of the most essential and basic general principles of criminal law. This can be seen in relation to: the mens rea requirement of intention for murder; the complexity of rules on complicity culminating in the recent Supreme Court case of Jogee; and the challenge to the meaning of causation in Hughes. Given the ongoing inconsistencies in the law of homicide it remains a topic that ought to be further considered by the Law Commission, with the potential for a radical rationalisation of existing offences. Equally, though, there is a decision to be made as to whether the law of homicide should be used as it has been in recent decades to test the application of general principles, or whether that is asking too much of one “family” of offences.

Professor Heather Keating, University of Sussex -The Age of Criminal Responsibility 

The Law Commission has explored briefly the issue of the age of criminal responsibility in England and Wales in a number of reports in recent years and in its final report, Unfitness to Plead (Law Com No, 364, 2016), it stated that it remained of the view that there ‘may be sound policy reasons for looking afresh at the age of criminal responsibility’, acknowledging ‘the increasingly loud calls for such a review by clinicians and academics’ (para 7.54).

This paper invites the Law Commission, in its 13th programme, to respond positively and as a priority to these calls (which have also been made by, inter alia, the United Nations Committee on the Rights of the Child), including within its terms of reference further detailed consideration of the allied question of a new defence of developmental immaturity.

It is accepted that such a review would take place against a backdrop of governmental resistance to reform. As recently as January 2016, at the end of the second reading  of Lord Dholakia’s Private Member’s Bill during which strong cross-party support was expressed for increasing the age of criminal responsibility from ten to twelve, the Government reiterated its view that ‘children of ten and above are, for the most part, able to differentiate between bad behaviour and serious wrongdoing’ and that ‘the current age … is appropriate to hold young people to account’ (Lords Hansard vol 768, cols 1573, 1577, 29 January 2016). Lord Dholakia’s Bill failed to progress further during the last parliamentary session and thus that opportunity was lost.

However, this paper argues that the legal, psychological and policy issues pertaining to the current low age of criminal responsibility remain and that they warrant full consideration by the Law Commission in what, it is hoped, would become a persuasive launchpad for reform.

Professor Michael Levi, Cardiff University - A new code for confiscation

Abstract forthcoming

Dr Hannah Quirk, University of Manchester -The Case for Restoring the Right of Silence 

I propose repealing ss34-38 of the Criminal Justice and Public Order Act 1994 and reinstating the common law right of silence. The CJPOA allows, inter alia, the prosecution and judge to comment, or a jury or magistrate to draw inferences from, a suspect's 'failure to mention when questioned something which [s/he] later relies on in court'. Inferences may also be drawn from a defendant's failure or refusal to testify. This has effectively required suspects to cooperate with the police from the earliest opportunity which undermines the presumption of innocence. It has also damaged the solicitor-client relationship because suspects are required to 'second-guess' the advice of their representative and lawyers know that they may have to give evidence about their advice. The value of legal representation has been undermined because lawyers have to advise suspects whilst not in full possession of the police case and they have less negotiating power with the police. The increase in unrepresented defendants has made the  effects of the CJPOA more acute - a problem that seems likely to worsen with the cuts in legal aid. This proposal is based on my forthcoming monograph The Rise and Fall of the Right of Silence (in press Routledge).

Dr Jonathan Rogers, UCL -The time limit that prevents some prosecutions for underage sex: a case for retrospective reform 

I will argue that the time limit of one year for bringing prosecutions for unlawful sexual intercourse with a girl under 16 years old, pursuant to section 37(2) and paragraph 10(a) to Schedule 2 of the Sexual Offences Act 1956, should be abolished. This reform should be undertaken even though the offence itself has now been repealed and the offence which succeeds it (sexual activity with a child, contrary to s.9, 13 Sexual Offences Act 2003) has no time limit. This is different from most law reform projects. Here, the “desired” law seems obvious: the questions are whether it should be amended retrospectively, and how to achieve it.

Professor Andrew Sanders, University of Sussex -“The CPS, Policy-Making and Assisted Dying: Towards a ‘Freedom’ Approach” 

In this paper I evaluate the CPS Policy using the three core values that I used to evaluate the CPS in general in my paper in Criminal Law Review February 2016. These are ‘Justice’, ‘Democracy’ and the ‘Three Es’ (efficiency, effectiveness and economy). The Policy is found to be inadequate in relation to all three. It is unjust to many victims who wish to be helped to die at the time and in the manner of their own choosing; and to many ‘perpetrators’ who wish to help those ‘victims’. It fails many of the tests of democracy because, for example, of the way the consultation on the policy was carried out. And it is ineffective because it fails to protect many people who would not wish to die if changeable circumstances were different; and impedes those who do wish to die, and would continue to wish to die, even if changeable circumstances were different.

Using the ‘freedom model’, developed by Richard Young and myself in our Criminal Justice text, I then identify the key elements of a new Policy that would do a better job of incorporating these core values. Ultimately, however, I conclude that no prosecution policy can fully adopt a ‘freedom approach’ incorporating these core values. What is needed instead is a system of regulation. 

Professor Stephen Shute, University of Sussex -Reforming Civil Preventative Orders 

Abstract Forthcoming

Public Law Reform Now

Professor Lindsay Stirton, University of Sussex and Professor TT Arvind, Newcastle University - After Proportionality: Coming to Terms With the Repeal of the Human Rights Act 

Although proportionality review is usually only available where breach of a convention right is asserted, the reach of human rights law has been substantial, extending into such `routine' matters as health care resource allocation decisions, planning decisions and public authority liability. The result has been that this technique of judicial control over the administration plays an important role in resolving disputes between the citizen and the administration.

This acquires importance given that recent developments have put the repeal of the Human Rights Act on the agenda. While substantive options for the replacement of the Bill of Rights have been investigated, most significantly by the Bill of Rights Commission, there has been little analysis of the potential impact of repeal on proportionality review on existing constitutional arrangements for judicial control of the executive. Our paper focus on this issue.

We demonstrate that unlike the techniques associated with `ordinary' judical review, which are directed towards ensuring that public bodies perform their public duties in accordance with legal requirements, proportionality review is unique in providing a means through which courts can assess the balance between public objectives and the private interests that may sometimes have to be subordinated to attain those objectives. It has long been regarded (including by the Law Commission itself) that some means of balancing public and private interests is necessary to prevent injustice to individuals in the administrative state. Indeed it could be argued that this explains the expansionary pressure which human rights law has come under in recent years.

This paper considers some of the consequences that the disappearance of this form of review may have, and suggests the outlines of a programme to more fully investigate the role of proportionality, as well as ways in which this role could be fulfilled in the absence of the Human Rights Act (including incorporating proportionality review into 'ordinary' judicial review, as well as a return to the pre-1998 situation), and how they might be introduced as a statutory law reform exercise.

Dr Richard Kirkham, University of Sheffield - Promoting Judicial Clarity

We are in the midst of a period of profound uncertainty in public law. Many previously held givens about the role and purpose of the discipline are under scrutiny, including the role of the judiciary when reviewing administrative decision-making. In this paper I will argue that, whilst judicial review is a vital constitutional safeguard, the judiciary are not always successful in either explaining the extent or purpose of their power, or providing clear guidance to public administration as to the import of their rulings. I will further argue that too often debates as to the impact of judicial review, or use of judicial power, are conducted without adequate empirical evidence to support the claims being made.

I will explore these questions through a study into the approach taken by the judiciary in almost 100 cases involving ombudsman schemes. Although in some respects this body of case law represents an atypical niche in administrative law, such cases challenge the judiciary to review wide-ranging discretionary powers, a common aspect of public law. The review of discretionary power raises fundamental questions of when and how judges should interpret legislation and use legal doctrine.

The argument will be made that the judiciary are capable of developing incrementally a consistent approach towards its decision-making in such cases, one which situates its interpretative powers and use of legal doctrine within a coherent model of the role of the judiciary. However, what the study also reveals is the lack of consistency between judges, both in the deployment of various legal strategies towards judging cases; and the transparency in which the choices judges make are defended and explained. This lack of consistency and transparency is detrimental to the rule of law in that it creates uncertainty in dispute resolution and provides poor guidance to primary decision-makers.  

Variance in judicial approaches towards statutory interpretation and legal doctrine is a well-known phenomenon, this paper though will argue that when it comes to adjudicating administrative discretion the judiciary should (a) consider whether it is appropriate for the court to interpret legislation and (b) provide reasons for the strategies that it adopts to resolve the case; before (c) resolving the case on the strategies and legal doctrine selected.

Whether this is an issue best pursued by the Law Commission or further academic debate is a moot point, but if the Law Commission does consider the grounds of administrative law it will be important that its work is supported by empirical evidence that interrogates how different judicial strategies and legal doctrine are deployed in practice. 

Dr Aisling McMahon, Newcastle University - The Limits of Judicial Review in the Context of Transnational Governance: A Case Study of the European Patent Office

Transnational governance regimes now operate in many areas of law and international quasi-judicial/administrative bodies are often vested with significant functions. Despite this, decisions of such bodies may be extremely difficult to challenge and/or national courts may be reluctant to intervene. This gives rise to questions relating to the external accountability of international organisations and limitations of judicial review become apparent in such contexts. This paper examines this issue by taking the European Patent Office (EPO) as a case study.

The EPO is the patent granting body for ‘European’ patent applications with 38 Contracting States including the UK. It has a significant role granting 68,421 patents in 2015 alone.[1] Despite this, decisions of the EPO, including the Boards of the EPO, are subject to limited external oversight. Once granted a ‘European’ patent application is refracted into a bundle of national patents in States designated whose post grant life are within the jurisdiction of national courts. However, national courts only become involved if a patent is challenged before them and crucially, decisions of national courts only impact the national patent in that jurisdiction; general principles derived have no binding impact on the EPO.

Moreover, it was held in Re Lenzings AG European Patent[2] that decisions of the EPO could not be judicially reviewed by the national court as ‘it is not for the national court to query its [the EPOs] doing whether in a direct, or collateral attack’. The European Patent Organisation (EPOrg) is also not party to the European Convention on Human Rights, therefore it is not directly subject to the jurisdiction of the European Court of Human Rights and given the presumed equivalence of the EPOrg with ECHR protections, national States also cannot be held accountable for EPO decisions unless protections are proven ‘manifestly deficient’. [3]  Thus, there are limited means to achieve external oversight of the EPO decisions which is of heightened concern due to controversies surrounding the independence of Boards of the EPO.[4]

By taking the EPOrg as a case study, this examination seeks to highlight the main limitations in the current system and the need for further and more sustained discussion on the role of judicial review in the context of international organisations.

[2] Queens Bench Division (Crown Office List) 20 December, 1996.

[3] Rambus Inc v Germany [2009] ECHR 40382/04.

[4] See generally, Decision Art. 23 1/16 of the Enlarged Board of the EPO, (10 June 2016). 

Ms Sarah Nason, Bangor University - Judicial Review: Localisation, Simplification and Codification

There are two tiers of Administrative Court judicial review in England and Wales (though these are not mutually exclusive).

One tier, centred around the RCJ, determining claims involving the exposition of specialist public law principles in light of constitutional values and rights, claims with wider impacts on the national public good, and claims that address the balance of powers between state institutions.

A second regional (or local) tier, primarily concerned with issues of importance to local communities and relatively non-complex, routine individual grievance (street-level bureaucratic) applications often turning on their own facts, issued by unrepresented litigants or by generalist high-street solicitors.

Based on empirical and normative research into the characteristics of these tiers, I explore two proposals:

  1. Much scholarly commentary (especially that related to ‘mapping’ substantive review) has led to unnecessary complexity. From a ‘ground-up’ analysis of case-law, I suggest that judicial reasons for deciding are often (and rightly) more simplistic than scholarly commentary implies; that there are six categories of review; and that there is potential for exploring whether these could be ‘codified’ in some way. The categories are: (1) mistake, (2) procedural impropriety, (3) ordinary common law statutory interpretation, (4) discretionary impropriety, (5) breach of an ECHR right or Equality duty, and (6) ‘significant’ claims (more explicitly ‘constitutionalised’ claims).
  2. Empirical evidence suggests that recent reforms to judicial review procedures and costs have had disproportionately negative effects on access to justice outside London (on so-called ‘second-tier’ judicial review). I wish to propose that adoption of the simplified categories of grounds of review would fit well with a further proposal to examine whether all current topics of Administrative Court judicial review require resolution in the High Court. The impact of opening regional Administrative Court Centres has been mixed and I argue that these reforms have not gone far enough to ensure public law justice outside London. I propose that only category (6) ‘significant’ claims necessarily require resolution at High Court level, and that the potential for at least a presumption that other categories of claim could be determined ‘locally’ in county courts should be explored. Properly implemented, further localisation could lead to greater efficiency and cost-effectiveness in our system of judicial review, as well as enhancing administrative justice.

Proposals A and B align since there is evidence from other legal jurisdictions that increased localisation and some form of codification are complementary aims. 

Dr Ole W Pedersen, Newcastle University - Judicial Public Law Practices and the Role of Environmental Law

By way of a series of examples, this paper seeks to illustrate how the UK courts fail to engage with important doctrines of environmental law. When engaging in environmental adjudication, the courts all too often approach the subject from within existing practices and doctrines of traditional public law adjudication. There are good reason for doing so; for the majority of modern environmental law is by and large ‘public’ and regulatory in nature, seemingly forming part of standard administrative law. The judicial eagerness to make environmental law fit within existing ‘practices’ is, however, problematic. First, this tendency runs contrary to the content of some of modern day environmental law which explicitly seeks to carve out special environmental law doctrines when it comes to adjudication. Second, the paper further highlights how the failure by the courts to develop specific environmental law doctrines may well be explained by unjustified institutional inertia on their behalf, seeing as specific environmental law doctrines are increasingly forming part of statutory and regulatory initiatives. 

Professor Keith Syrett, Cardiff University - Substantive review of allocative decision-making in healthcare: fit for purpose?

As in many other fields, judicial review has expanded its reach over decisions on allocation of scarce healthcare resources in recent decades. Much of this expansion has been proceduralist in orientation, as judges have sought in particular to render allocative choices both more transparent and more participatory for disappointed stakeholders, such as patients and pharmaceutical companies. This development has been widely welcomed for its contribution to the legitimation of such decisions, thus addressing a key problem in this area of social and economic policy. 

Much less attention has been paid to the role of substantive review grounded in rationality. In one sense this is unsurprising, since there remain significant (and, arguably, justifiable) limitations to the constitutional and institutional competence of the judiciary in this context, which are frequently acknowledged both by judges and commentators. Yet there are also instances where judges have seemingly adopted the ‘second face’ of the ground of irrationality, understanding it to relate to ‘a decision which can be seen to have proceeded by flawed logic’ (R v North and East Devon Health Authority, ex parte Coughlan, [1999] EWCA Civ 1871 [65] (Lord Woolf MR)). This has facilitated some judicial venturing beyond procedural review so as to more closely scrutinise the evidential basis of allocative decision-making in healthcare, an approach which sits closer to the ‘hard look’ standard applied in US administrative law than to Wednesbury

This paper seeks to critically interrogate the standard of review applied in cases of this type, and, more broadly, to examine the appropriate role for substantive review in this particular social policy context. While focusing upon the healthcare field, it will be submitted that the issues which it raises are more widely germane to an understanding, and critique, of the irrationality ground as it applies to modern modes of governance in the ‘regulatory state’.

Professor Robert Thomas (University of Manchester) and Dr Joe Tomlinson (University of Sheffield) - "Reconsidering Administrative Law Reform"?

‘If you could change just one thing about the law relating to judicial control of the administration what would it be?’ Well, there are many possible answers: statutory codification of the principles of judicial review; an administrative procedure act akin to those in the US and Germany; repealing the Criminal Justice and Courts Act 2015; increasing legal aid; and enhancing tribunal appeal rights. But before rushing straight ahead into prescriptions for reform, we need to focus on what the problem is. Finding solutions is easy; finding the right problem is the hard part. What is the issue, if any, of contemporary administrative law? Is there a problem with substantive law – as opposed to deeply embedded administrative and political attitudes and cultures toward the law? To formulate a framework for discussion, a good place to start is how the current system operates. This paper will therefore commence by drawing upon available quantitative data on judicial review and tribunals, cases lodged and allowed. The paper will then proceed to discuss core problems. The paper will suggest that the issue is not so much judicial, but non-judicial control of administration. There is a fundamental paradox of contemporary administrative law: ironically, the most frequently used administrative law mechanism is the least regulated, the most fragmented, the least studied, and entirely devoid of an agreed set of principles.

Richard Percival, Cardiff University - The challenge of Public Law reform: Lessons from a failed project

In May 2010, the Law Commission published its report Administrative Redress: Public Bodies and the Citizen. The genesis of the project went back a considerable time: even before the project appeared as a scoping exercise in the Commission’s Ninth Programme of Law Reform (2005), a “team paper” on Monetary Remedies in Public Law had been published (2004). The initial impetus, therefore, was a pure public law one: the (it was said) lacuna that monetary remedies were not available on judicial review. The scoping paper (2006), however, developed it on a twin track, considering both monetary remedies in judicial review and the tortious liability of public bodies. The scheme proposed in the consultation paper (2008) sought to create a unified special regime across public and private law, delineating a sphere of “truly public” decision-making subject to new rules.

The provisional proposals fared badly on consultation. In part, tort lawyers were overwhelmingly hostile to any derogation from the general rules for public bodies. But the fundamental problem was that “the key stakeholder – Government – was firmly opposed to our proposed reforms.” The result was that the 2010 report brought the project to an end without substantive recommendations on the main subject matter; a public recognition that continuation was futile in the face of rooted opposition from Government.

The paper will examine what the failure of the project tells us about the particular challenge of public law law reform. In the law reform process, the Government is expected to decide on law reform recommendations in an objective way. The Government is not, of course, required to adjudicate on recommendations purely within the law reform paradigm of rational and principled legal policy making – it can and will take into account political considerations, legislative and policy-making priorities, resource issues and so on. But in many public law law reform contexts, the Government itself is part of the subject matter, and has a party-like interest in the outcome of substantive law reform. This arguably undermines the Government’s general role in law reform. The paper will also aim to elucidate the effect of changes in the machinery of Government – particularly the development of the lawyer-oriented Lord Chancellor’s Department into the Ministry of Justice, a large main stream policy department – in intensifying this challenge.