The Justiciability of Resource Allocation

Abstract

A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between ‘discretionary allocative decision‐making’ and ‘allocative impact.’ The non‐justiciability doctrine in R v Cambridge Health Authority , ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non‐justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non‐justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.