AuthorDaniel TAN BA (Cantab).
Published date01 December 2013
Date01 December 2013
Citation(2013) 25 SAcLJ 296

This Article Examines The Development Of Substantive Review In Singaporean Administrative Law Jurisprudence Vis-à-vis That Of The Uk. The Study Reveals That Substantive Review In Singapore Is Relatively Underdeveloped Due To The Conflation Between Illegality And Irrationality Review And The Reluctance Of The Courts To Adopt Proportionality Review. It Will Be Suggested That This State Of Affairs Can Be Best Explained By Institutional Factors As Well As The “doctrine” Of Judicial Deference. While This Article Will Not Consider The Desirability Of These Autochthonous Developments, Two Small Proposals For Reform Of The Law Will Be Suggested.

I. Introduction

1 It can no longer be said that there is little interest in administrative law in Singapore. Recent years have seen a number of high-profile cases on judicial review1 and a spurt of academic discourse on the topic.2 Moreover, in an extra-judicial lecture at the Singapore Management University in 2010, the then Chief Justice Chan Sek Keong noted the students' “sense of unease about the dormant state of judicial review in Singapore”.3 This “angst”,4 as the Chief Justice called it,

portends — if anything — a burgeoning interest in judicial review in Singapore.

2 This article focuses on one aspect of administrative law in Singapore: substantive review. The analysis is structured as follows. The article first considers the origins of substantive review in English administrative law5 and how it has developed subsequently in light of the Human Rights Act 1998,6 taking special care to distinguish substantive review from the other grounds of judicial review — especially illegality review.7 Thereafter, the attention turns to substantive review in Singapore8 and how it has taken a different route in its development: irrationality review has become conflated with illegality review, rendering the former a blunt tool,9 and proportionality review has yet to be adopted.10 Indeed, the study reveals that little is done by way of true substantive review in Singapore (that is, substantive review is underdeveloped). The implications of these developments will then be considered11 and a few explanations will be proffered for this current state of affairs.12 In particular, the article considers the probable adoption of a “doctrine” of judicial deference13 by the courts — a development that must be viewed with caution. Finally, the article concludes with two small proposals for reform of the law, which would aid conceptual clarity in judicial review.14

3 The focus on substantive review also serves a secondary purpose. Judicial review of administrative acts for procedural matters is generally uncontroversial; it is largely agreed upon that the courts should intervene and quash on grounds of, for example, natural justice or bias. The extent of the courts' power to interfere with an administrative decision on substantive grounds, however, is far less clear-cut; after all, judicial review is premised on the orthodoxy that it is review on the basis of the legality of a decision rather than its merits. It is therefore contended that an examination of how substantive review has developed would reveal more clearly the judicial attitudes towards judicial review. Indeed, the principles of administrative law owe themselves largely, if not solely, to judicial development.

II. What is substantive review? — Lessons from the UK

4 It is trite law that judicial review of administrative action seeks to review the legality and not the merits of the administrative decision. In other words, the court's judicial review jurisdiction is not an appellate one. This distinction between legality and merits is premised on the doctrine of ultra vires— the “juristic basis of judicial review”15— which posits that all administrative power must be exercised within legal limits. Therefore, the powers of a (statutory) public body are delineated by the Act of Parliament which constitutes it, and the role of the courts in judicial review is to interpret such legislation, ascertaining whether the challenged administrative decision is indeed ultra vires [beyond the powers].

5 However, it is often the case that Parliament, in granting power to the administrative decision-maker, accords him a margin of discretion as well. In such cases, whether the decision is ultra vires or not might depend on considerations beyond legality simpliciter; here, contrary to the orthodoxy stated above, judges are drawn into questions regarding the merits or substance of the decision. Indeed, administrative decisions have long been subject to scrutiny on grounds of substance, where said decisions flagrantly breach a high standard of unreasonableness (irrationality review) or, more recently, where such decisions are found to be disproportionate (proportionality review). However, before these specific grounds of substantive review are considered below, it would be helpful at this juncture to consider an illustration.

6 Consider this fictional scenario: Parliament enacts the (imaginary) Air Pollution Act, which gives the Minister for Environment discretion to develop policies to reduce Singapore's carbon footprint. He then passes secondary legislation purporting to ban all outdoor barbecues as, in his considered judgment, this would be a significant step towards reducing carbon emissions. Assume that the Minister is acting completely within the statutory powers granted him. His plan is announced; there is huge public outcry (“how else are we to obtain our chargrilled meats?”). The Minister's policy does seem ludicrous, not least because he does not seem to direct any attention to carbon emissions from cars and other vehicles. Indeed, the decision might have political ramifications both for himself and the ruling party. Yet, is it challengeable in law? Specifically, notwithstanding that the Minister's decision is intra vires, can it still be challenged by way of judicial review? If so, on what grounds?

7 The short answer is “yes”. Provided that the applicant for judicial review has the requisite standing,16 he could challenge the decision on grounds of substance. This is the essence of substantive review. In the UK, this takes the form of irrationality review and proportionality review, which will now be considered in turn.

A. “Irrationality” or Wednesbury unreasonableness

8 In his seminal judgment in In re the Council of the Civil Service Unions (“GCHQ”),17 Lord Diplock recognised the head of review for irrationality or Wednesbury18 unreasonableness: a decision could be quashed where it was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.19 That is, a decision could be quashed on the basis of its substance where it was so unreasonable that no reasonable authority could have come to it, such as where a teacher is dismissed solely on account of her red hair.20 Crucially, however, in considering whether a decision is irrational, the court persistently guards against substituting its own view of what is reasonable for that of the decision-maker. This prevents the judge from usurping what Parliament has delineated to be the rightful role of the

decision-maker and underlies the orthodoxy of judicial review as being premised on review for legality and not merits.

9 As in other areas of the law,21 what is reasonable depends on the context. As Sir John Laws observed:22

On the surface at least the test of unreasonableness or irrationality … is monolithic; it leaves no scope for a variable standard of review according to the subject-matter of the case … But in fact the courts, while broadly adhering to the monolithic language of Wednesbury, have to a considerable extent in recent years adopted variable standards of review.

10 Laws gave examples to illustrate this variable standard of review. In Nottinghamshire City Council v Secretary of State for the Environment,23 a higher threshold of unreasonableness was required to review a decision of a Minister, which had previously been endorsed by a resolution of the House of Commons. Conversely, in R v Secretary of State for the Home Department ex parte Brind24 (“Brind”), a lower threshold of unreasonableness (corresponding to a greater standard of review) was required where the fundamental right to freedom of expression was engaged.

11 The variable standard of review depends generally on two factors, illustrated by the case of R v Secretary of State for Defence ex parte Smith.25 The applicants here had been dismissed from the British armed forces on the sole ground that they were of homosexual orientation. The decisions to discharge them were based on a policy of the Ministry of Defence, which had been debated in both houses of Parliament and considered by select committees of the House of Commons. In applying the test of irrationality, Sir Thomas Bingham MR (as he then was) identified two key considerations. First, whether fundamental human rights were interfered with. Approving the submissions of counsel, he held:26

The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the

interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above. [emphasis added]

12 The second factor — the policy content of the decision — was described two pages later:27

The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court...

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