The Justiciability of Resource Allocation

Date01 March 2007
Publication Date01 March 2007
AuthorJeff A. King
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.
This distinction, however,does not guide judicial approachesu nder the Human Rights Act 1998,
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
rights law.
Judgesoften claim limited competency to adjudicate disputesin which a claimant
challenges the legality of a public authoritys 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-
tions of rights u nder the Human Rights Act1998 (HRA 1998), as well as for su⁄-
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
discretionary allocative decision-making on Wednesbury reasonableness grounds,
where‘allocative’ means the cost of the allocation is a relevant concern. Allocative
impact, on the other hand,remains a justiciable matter, but one that maycontinue
to function as a policy ground in£uencing judicialdiscretion.
In the ¢rstpart, the article de¢nesthe scope of the non-justiciability doctrine as
it currently stands in publiclaw.The focus of this part is on the idea of discretion-
ary allocative decision-making. It then o¡ers a rigorous de¢nition of how ‘discre-
tion’ is to be understood in this formula, deliberately excluding more loosely
de¢ned versions of the idea such as the ‘discretionary area of judgment’ doctrine.
The second partde¢nes allocative impactand reviews theway in which itarises i n
various cases. Such cases range from those in which allocative impact is almost
irrelevant,to those where it is highlyrelevant.Yet in no case is it properly regarded
as a non-justiciable consideration.The third part defendsthe tenability of this dis-
tinction in light of the practical connection between allocative impact and discre-
tionary allocative decisions in budgetary planning. Throughout these various
parts, the focus is on rendering the positive law more coherent, and showing
where the boundaries of the non-justiciabilitydoctrine lie.
Although this analysis helps to explain the existing approach of the courts
under administrative and tort law, it does not endorse the view that the non-jus-
ticiability doctrine is justi¢ed. The need to re-examine its justi¢cations is high-
lighted by new approaches to resource allocation disputes under the HRA 1998,
as reviewed in the fourth part of this article. Such approaches break with past
practice. They show that in terms of positive law, the non-justiciability doctrine
as such no longer applies. Institutional competency and judicial deference remain
prominent issues, and the need for guidance is acute. But the non-justiciability
doctrine as a notion of a judicial no-go area has receded and courts now take a
more £exible approach. Concerns of justiciability, under the HRA 1998, have
faded into concerns of judicialdeference.While this is not a radical development,
it is one that makes a practical and potentially signi¢cant di¡erence.
‘Discretionary allocative decision-making’may be de¢ned as occurring where an
administrative decision-maker decides to allocate public resources under the
authority of a discretionary power accorded under the law (statute, delegated leg-
islation or prerogative powers). Such powers may be contrasted with duties. An
allocative decision’, for present purposes, can be de¢ned as one in which the deci-
sion-maker decides to allocate public resources and the cost of the allocation is a
consideration relevant to the correctness, reasonableness, or proprietyof the deci-
The aim of this section is to de¢ne the point at which courts view discre-
tionaryallocativedecision-making as raising non-justiciableissues, and the minor
exceptions to that rule.
2 I am aware that I may here be departing fromother plausible understandings of the expression
allocativedec ision.
The Justiciability of Resource Allocation
198 r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(2) MLR 197^224

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