The Justiciability of Resource Allocation
Je¡ A. King
A perennial problemi npublic law is how courts ought to deal with legal challenges to the alloca-
tion of public resources.This article explains and renders more coherent the variedapproaches of
English courts to the justiciabilityof resource allocation disputes in administrative and tort law.It
drawsa distinction between‘discretionaryallocative decision-making’ and ‘allocativeimpact.’ The
non-justiciability doctrine in RvCambridge HealthAuthority,ex p B is concerned with the former
only. By contrast, allocative impact is ajusticiable matter, but can still ultimately defeat aclaim.
where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more
£exibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a
relatively narrow scope in admin istrative and tort law, it has nearly disappeared under human
Judgesoften claim limited competency to adjudicate disputesin which a claimant
challenges the legality of a public authority’s allocation of scarce resources. They
often say such matters are non-justiciable. But there is more to such judicial
restraint than the mere fact that courts would compel governments to expend
resources. All judgments against government have ¢nancial repercussions that
a¡ect the allocation of scarce resources in some way. It has been settled law for
many years thatthe Crown is liable before the courts for breachof contract, recov-
ery of property, and tort.
When courts have been asked to enforce a statutory
duty to provide bene¢ts, or a substantive legitimate expectation, they have often
granted the requested relief. Furthermore, courts will award damages for viola-
ciently serious breaches of European Community law. Thus it is clear that courts
will continue to compel expenditure from the public purse while con¢dent that
they are within their proper constitutional role in doing so.The question to be
asked then is at what point, in the view of the courts, do resource implications
become a bar to judicial review?
This article proposes that recognising a distinction between discretionary alloca-
tive decision-making and allocative impact helps to und erstand and render more coher-
ent the approaches of the courts to the justiciability of resource allocation issues.
Allocative impactis the ¢nancial or distributional adjustmentmade necessary by a
court’s judgment.This occurs in a much broader class of cases than those in which
a court is asked to review discretionary allocations of scarce resources. It is shown
below that at present, the‘non-justiciability doctrine’concerns legal challenges to
D.Phil candidate, Keble College, Oxford. I am grateful to Timothy Endicott, Nicholas Bamforth,
J.W. F. Allison, Paul Craig, Graham Gee, Kirsty McLean, John O’Dowd, Brian Flanagan, Franc ois
Tanguay-Renaudand the MLR’s two anonymous reviewersfor helpful comments on earlier drafts.
1 S. Arrowsmith, CivilL iability and Public Authorities (Hull: Erlsgate Press,1992); D.Fairgrieve, State
LiabilityinTort (Oxford:Oxford University Press,20 03).
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(2) MLR 197^224