Editor’s Note: Earlier this week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected to be more sympathetic to the report and others much less so. The third reply is by Dr Farrah Ahmed from the University of Melbourne.

Jason Varuhas offers us a meticulous critical study of the judicial review of political accountability mechanisms. He warns that judicial review could impoverish and stymie, rather than facilitate, these mechanisms. This warning is well-founded, carefully argued and deserving of our close attention.

Varuhas’ strongest reproach centres on the judicial review of the reasonableness of the government’s response to the Parliamentary Ombudsman’s findings. In Bradley, the Court of Appeal held that the Secretary of State can only reject the Ombudsman’s findings based on cogent reasons. The rule in Bradley appears to require more of the government than the traditional standard for reasonableness in administrative law (the Wednesbury standard). Varuhas argues that the rule in Bradley is unjustified for a number of reasons. This comment focuses on just two: that Bradley is unjustified because it deviates from the Wednesbury standard and because it leads courts into enquiries to which they are ill suited. On each of these points, I suggest that a more generous reading of the judicial approach is available.

First, Varuhas sees the rule in Bradley as a ‘radical departure from the orthodox Wednesbury standard’. He argues that the rule allows courts to intervene ‘simply because they feel the Minister’s reasons are not particularly convincing or the Minister had not quite engaged with the Ombudsman’s report to the Court’s satisfaction.’ He argues that the rule is ‘not very far at all from the court simply standing in the Minister’s shoes and itself determining whether the Ombudsman’s findings should be accepted or rejected’.

While many of Varuhas’ criticisms are on target, there is a more charitable understanding of the rule in Bradley (followed in the case of EMAG). The relationship between reasonableness and deference is central to this understanding. A person defers to another person’s judgement on an issue if she gives the person’s judgement weight in her own deliberations. Reasonableness sometimes requires deference. The point is commonplace: it may be reasonable for me to drink a cup of coffee every day; but it is no longer so, if an esteemed medical expert warns that a cup of coffee could seriously damage my health. To act reasonably now, I must defer to the medical expert. If I continue drinking coffee, showing that I am acting reasonably will involve some work: I may have to undermine the expert’s evidence, or her status as an expert, or question whether she applied her mind to the particularities of my case. Clearly the medical expert’s warning has made it much harder to show that I act reasonably in drinking coffee.

Something like this relationship between deference and reasonableness is implicit in the judgments in Bradley and EMAG. The courts imply that in order to act reasonably, the Minister cannot deliberate in isolation from the Ombudsman’s findings. Reasonableness requires that the Minister defer to the findings, that is, give them weight in decision-making. The factors identified in EMAG against rejecting the Ombudsman’s report – the complex nature of her investigation, her access to expert advice, her consideration of representations from parties – strongly suggest an implicit connection between reasonableness and deference. Similarly Sir John Chadwick writes in Bradley:

…the Secretary of State, acting rationally, is entitled to reject a finding of maladministration and prefer his own view. But … it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman’s finding in favour of his own view is, itself, not irrational… (emphasis mine)

To say that the Minister must defer to the Ombudsman’s findings is not to say that the Minister must always accept the findings. But just as it is harder for me to show that drinking coffee is reasonable in the face of the medical expert’s warning, showing reasonableness in rejecting the Ombudsman’s findings is harder than showing reasonableness in the absence of such findings. This is perhaps why the court held that the Secretary of State can only reject the Ombudsman’s findings based on ‘cogent reasons’.

Varuhas complains that Bradley entailed a ‘radical departure’ from the Wednesbury standard and that ‘there was no explicit acknowledgement of this departure in the judgment’. But it may be that the court saw itself as elaborating on what this standard requires in a particular context – where deference to the Ombudsman’s findings is due – rather than departing from the standard. This understanding of the judgment opens up the possibility that the rule in Bradley can develop to avoid some of the pitfalls Varuhas alerts us to. While Varuhas calls for the Supreme Court to overrule Bradley at the next opportunity, it may be that the genie can go back into the bottle instead. This would require some careful judicial pruning and clarification. Even critics of the Wednesbury standard would acknowledge that the standard for reasonableness in administrative law is, and should remain, lower than the non-legal standard we use to assess the reasonableness of actions like coffee drinking. Varuhas is right to emphasise that the standard for reasonableness in administrative law must be sensitive to the need for courts to defer to administrators. (This is the kind of deference with which administrative lawyers are most familiar.)

Second, Varuhas argues that, while the Ombudsman’s findings deserve respect, courts are ill-suited to reviewing the government’s response to these findings due to their relative inexpertise. While this is an appealing argument, it is worth pausing to consider how much expertise courts require to effectively review the government’s response. Judges are routinely tasked with evaluating expert evidence and comparing conflicting expert testimony in a range of scenarios in which they have little or no expertise. Moreover, while it is often assumed that experts are better than novices at every task relating to their domain of expertise, this assumption is faulty. If a student has ever pointed out an error in a view you have held for decades, you will be unsurprised to hear that, in some situations, novices outperform experts. Some non-legal studies of expertise show that experts may perform more poorly than novices in many scenarios because they may gloss over details, operate with biases, display inflexibility and miscalculate their abilities. These limitations of experts suggest that more evidence is needed to definitively conclude that judges are not suited to judicial review in scenarios like Bradley. The court’s modest assertion of their incapacity to “resolve the differences between the experts within the limitations of the present judicial review proceedings” in EMAG should serve as a prompt for empirically-informed reflection amongst judges, scholars and government about the extent to which judges can review governmental responses effectively given their relative inexpertise.

Varuhas makes many other excellent arguments. He argues, for instance, that the current judicial approach undermines Parliament’s intent in enacting the Parliamentary Commissioner Act 1967. (While Varuhas lays great stress on the absence of express words regulating the governmental response to the Ombudsman’s findings, he is on firmer ground when he argues that the overall scheme of the Act implies intent to create a political rather than legal accountability mechanisms.) He argues also that political accountability mechanisms are effective, and that judicial review of these mechanisms undermines the office of the Ombudsman and leads to ‘accountability overkill’. Taken together, the arguments in this report make a strong case for protecting the autonomy of political accountability mechanisms.

Dr Farrah Ahmed
Associate Professor, Melbourne Law School