Facticity: Judicial Review of Factual Error in Comparative Perspective

Judicial review of factual error is an aspect of the problem of allocating power between judges and the political branches of government. This problem is shared by so-called Commonwealth jurisdictions whose contemporary law of judicial review of administrative action has devolved from the prerogative writs developed by the English courts in the 16th and 17th centuries. “Who decides?” is thus the common issue for the comparative inquiry in this paper, with “fact” taking the central role as a potential explanatory variable. For one way of answering the “who decides?” question is to label certain issues as “fact” and allocate the determination of such issues to administrative decision-makers, on an exclusive basis or near-exclusive basis. I will analyse, from a comparative perspective, the law of judicial review of administrative action as it relates to factual error, in four common law jurisdictions (Australia, Canada, England and Wales, and Ireland). In Part I, I outline the traditional approach to judicial review of factual error in the four jurisdictions, characterised by limited judicial oversight of issues of fact (with the exception of those classified as jurisdictional). I also describe the underlying considerations which explain and justify the traditional approach, those of institutional and constitutional competence. In Part II, I describe the recent evolution in the law of judicial review of factual error. Although the evolutionary path has not led to the same destination in each jurisdiction, there has been increased judicial willingness to examine alleged factual errors in judicial review proceedings. However, the factors which have influenced the evolution of the law are different in each jurisdiction: in Australia, struggles between the federal legislature and the judiciary have prompted changes in the common law relating to factual error; in Canada, the courts’ attempts to simplify the law of judicial review of administrative action; in England and Wales, the introduction of a statutory tribunal structure has affected the evolution of administrative law; and in Ireland (as well as in England and Wales), the influences of European Union law and European human rights law. I will also note that the changes to the approach taken by common law courts to judicial review of factual error have occurred against the backdrop of a general shift towards a more context-sensitive approach to judicial scrutiny of the lawfulness of administrative action, which I attribute (albeit tentatively) to an increased emphasis on the justification of administrative decisions.

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