Reconsidering Public Law Reform

On September 20, I gave a paper with Robert Thomas (University of Manchester) at the Public Law Reform Now Conference. The event was held at the University of Sussex and involved engagement with the Law Commission.

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The abstract for our paper is below:

The question asked is: if you could change just one aspect of the law relating to judicial control of administration, what would it be? There are several possible answers to this question. Before suggesting any particular reform, some important background questions need to be addressed. In particular, before racing ahead into discussing a solution we need to, at least, consider: (i) what the problem actually is; (ii) what are the options for resolving or at least ameliorating it; and (iii) whether those options are likely to resolve the issue or whether they might have unintended or dysfunctional consequences. In addressing such questions, it must be remembered that we can only define what ought to be done by first considering what could be done. This paper, first, sets out a broad distinction between two types of reform: political and technical. Recognising that these two broad categories are not necessarily exclusive, the challenge is to work out which problems are amenable to which type of reform. The paper, second, identifies some of the major forces and pressures bearing down upon the administrative law system: caseload pressures, delays, backlogs, limited judicial and other resources, cost pressures, the need to make the system more efficient, the need for accessibility, and political pressures. These forces are parts of the trade-offs in reform. The paper then goes on to demonstrate the influence of such forces through a survey of major developments and trends in three areas of administrative law (judicial review, tribunals, and administrative review). Throughout, we suggest reforms that may be designed with such trade-offs in mind.

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