Hammond J in Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385; [2009] 1 NZLR 776 states
[348] I agree with the result of this appeal as set out in the judgment of Arnold J and, in general, with the reasoning by which that result was arrived at.
[349] Because this is an important administrative law case, I propose to add some broad comments on the proper scope of judicial review in a case such as this. I emphasise that they are not intended to detract from the actual resolution of this case as set out in the judgment of Arnold J, to which the entire panel has subscribed.
[350] As a matter of convenience, I have grouped my comments under four heads, which might be called four “P’s”: the point of entry of judicial review; the purpose of judicial review; the principles of judicial review; and the place of judicial review in New Zealand today. I will then add some brief comments on this particular case.
The point of entry of judicial review
[351] The point at which judicial review may be resorted to is a matter of distinct importance. While, in principle, any decision of a public nature is potentially reviewable, there seems to be a growing misconception that just about any decision is amenable to judicial review. However, there are some “no-go” areas, as well as “twilight” contexts which have occasioned real, and still largely unresolved, arguments as to the appropriateness of making judicial review available in those areas.
[352] One of these twilight areas is public sector contracting, where governmental bodies provide or arrange for the provision of services to the public by means of contractual relations with private sector enterprises. “Government by contract” has had major ramifications for administrative law theory and practice as it has become the dominant paradigm for the provision of public services over the last quarter of a century. See Harlow “Law and New Public Management: Ships that Pass in the Night” in Gordon (ed) Judicial Review in the New Millenium (2003) at 5 – 18; McLean “Contracting in the Corporatised and Privatised Environment” (1996) 7 PLR 223; and Allars “Administrative Law, Government Contracts and the Level Playing Field” [1989] UNSWLawJl 7; (1989) 12 UNSWLJ 114.
[353] Leaving to one side any applicable statutory provisions, the problem for the law, stated in the simplest terms, is whether to apply private law principles, public law principles, or some admixture of the two. See, for example, Oliver Common Values and the Public-Private Divide (1999) and Taggart “‘The Peculiarities of the English’: Resisting the Public/Private Law Distinction” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 107 at 120. Some commentators have suggested that the courts should develop a stand-alone set of “government contract” principles which are to be applied. See, for instance, Davies Accountability: A Public Law Analysis of Government by Contract (2001). For a comparative common law and continental perspective, see Auby “Comparative Approaches to the Rise of Contract in the Public Sphere” (2007) PL 40.
[354] There has been real ambivalence on the part of both commentators and courts on this issue. Professor Freedland, a prominent commentator on “government by contract”, started out by arguing for the application of public law principles: “Government by Contract and Public Law” (1994) PL 86. Yet more recently, Professor Freedland has oriented his overall approach more firmly in the direction of private law (“Government by Contract Re-examined – Some Functional Issues” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 123 at 133): My real reason for sketching out an area of public/private enterprise law, which is not specially oriented towards public law, is not so much the view that ‘government by contract’ should be regulated by a body of law which is not specially oriented towards public law, but rather a prediction that English law will on the whole tend to generate a mixed but private law-based body of law for that purpose. Indeed, Professor Freedland now goes so far as to suggest that (at 134): ... we might expect that the techniques of private law in the areas of contract, tort, and restraint of trade will be the tools mainly used to address issues arising from the tension or conflict between the public contracting role and the public/private market-making function, and that our primary concern should be to ensure that these private law-based instruments are tuned to register the sound of public interest.
[355] A contrary view can be found in Collins Regulating Contracts (1999), which argues that markets do not provide an appropriate mechanism for distributing public services and questions the efficacy of contract law principles in this area. For a critical discussion of Collins’ analysis, see Cane “Administrative Law as Regulation” in Parker and others (eds) Regulating Law (2004) 206 at 210 – 213.
[356] Unsurprisingly, courts have had the same sort of difficulties as to what approach the law should adopt. As a general proposition, which I can only sketch here, the early cases around the British Commonwealth and in New Zealand did not favour judicial review. But some courts then began to adopt a stance that judicial review is available if there is a sufficient “public” component. The high water-mark of that approach is R v Panel on Take-overs and Mergers, ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815 (CA) which evidenced a shift from a “source of the power” test for reviewability to a “nature of the function” approach: Hunt “Constitutionalism and the Contractualisation of Government in the United Kingdom” in Taggart (ed) The Province of Administrative Law (1997) 21 at 29. In the “government by contract” context, that kind of thinking rests on a market contract paradigm which somehow becomes sufficiently suffused with public characteristics, or has a sufficient impact on the public, so as to render events attendant on it reviewable.
[357] With respect, this analysis is much too simplistic. The stereotype of the market contract involves a purchaser going into a market, which offers many opportunities (or service providers) for the transaction in question. That purchaser then has the option of purchasing the services in question either in a single transaction or a number of distinct transactions.
[358] There are, however, two characteristics which differentiate “government by contract” from the market orthodoxy. The first is that government contracting arrangements are functionally a form of regulation. (This conclusion is shared by Walsh and others Contracting for Change: Contracts in Health, Social Care, and Other Local Government Services (1997).) The second is that these kinds of agreements are a classic example of what I have referred to elsewhere as “relational” contracts: Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 8 TCLR 612 at [93] (HC). The contracting parties routinely provide that the contract will run for some time, involving ongoing evolutionary elements, and obligations of good faith and the like. In short, they are not closed market contracts. Moreover, the government has a powerful interest in ensuring that goods or services are supplied in accordance with a contract. If a contractor defaults, the continuity of essential public services may be jeopardised. Thus, these contracts involve what we could loosely call wider public interests.
[359] The characteristics I have noted might suggest that, as with any other government activity, government contracting should ultimately take place within a framework of public law precepts, modified to the particular contractual and statutory context, but nonetheless underpinned by constitutional values such as respect for the rule of law and democratic principles. But the pull in favour of private law still remains strong.
[360] My purpose in making these general points is not to attempt to resolve the present case in an abstract way. Each case will have its own complexities, as Arnold J has convincingly demonstrated, and the statutory and contractual context will be of the greatest importance. My concern is that I would not want it to be thought in other cases that, on the basis of what has happened in the case in front of us at this time, counsel can automatically assume reviewability in this subject area.
[361] In this case, we are faced with a somewhat unusual position. Typically a case of the kind which is before us would have attracted strenuous debate as to its amenability to judicial review in the first place. Here, both Diagnostic Medlab Limited (DML) and Lab Tests Auckland Limited (Lab Tests) have accepted that judicial review is appropriate. But they are poles apart as to why and how reviewability should come into play. For Lab Tests, Mr Curry takes a very narrow line. He contends that the wider arguments as to reviewability do not really matter very much in this case because the only possible ground for review is the admittedly narrow statement of Lord Templeman, for the Judicial Committee of the Privy Council, in Mercury Energy Ltd v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385 at 391 that “[i]t does not seem likely that a decision by a [SOE] to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.” Mr Hodder, on the other hand, doubtless delighted to have got over the preliminary hurdle of reviewability without opposition, has advanced a far-reaching basis for judicial review: namely an ability in the High Court to constrain, at least in some respects, decisions “tainted by a serious lack of integrity, i.e., fraud, corruption, bad faith or any other material departure from accepted public sector ethical standards which requires judicial intervention” (emphasis added). I will enlarge on what Mr Hodder meant by that later in this judgment.
The purpose of judicial review
[362] Broadly, there are two schools of thought about the Judge’s task when engaged in judicial review.
[363] The traditional stance is that the Judge’s predominant task is to ensure that administrative authorities remain within the powers granted to them by law. Whatever the Court may do by way of judicial intervention, that intervention must be linked, in one way or another, to the legal powers of the relevant public authority. This orthodox approach to administrative law has been defended, most magisterially, by Sir William Wade: Wade and Forsyth Administrative Law (9ed 2004) at 4-5. There can hardly be any argument that the legality principle is the first and most important limb of judicial review. While cases decided under the legality rubric routinely throw up difficult issues of statutory construction, that is nevertheless a “comfortable” task for a court, which can set about it without any disconcerting suggestion that the court is outside its proper bailiwick.
[364] On this traditional approach, the only long stop for challenging the decision itself, as opposed to what led to it, was so-called Wednesbury review for unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (CA). The primary decision is that of the first instance decision maker and courts have a highly constrained ability to interfere with respect to the decision actually taken.
[365] Wednesbury review is logically circular, distinctly indeterminate and functions as a “cloak” which, on the one hand, has the potential to seduce lawyers and courts into the merits rather than legality of decisions and, on the other hand, can lead to abject caution. See Le Sueur “The Rise and Ruin of Unreasonableness?” (2005) JR 32 at 32 and, more generally, Taggart “Reinventing Administrative Law” in Bamforth and Leyland (eds) Public Law in a Multi-layered Constitution (2003) at 311 – 335. Famously, Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 (HL) regarded Wednesbury as (at 549): ... an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.
[366] Instances of successful intervention on the basis of Wednesbury unreasonableness appear to be much more common in the United Kingdom than in New Zealand. In “The Rise and Ruin of Unreasonableness?” (above at [365]), Le Sueur observes that close to half of the Wednesbury unreasonableness/irrationality cases (some 40 cases) heard between January 2000 and July 2003 in the UK succeeded on those grounds (at 44 – 51). Even then, Lord Woolf has suggested extra-judicially that judicial review is still excessively executive-friendly in the UK: “Judicial Review – The Tensions Between the Executive and the Judiciary” in Campbell-Holt (ed) The Pursuit of Justice (2008) 131 at 142. In New Zealand, success under this head is a distinct rarity. I am reminded of an observation by Bauer CJ in the United States of America: the decision must “strike us [as] wrong with the force of a five-week old dead, unrefrigerated fish [to attract review]” (Parts and Electric Motors Inc v Sterling Electrical Inc 866 F2d 228 at 233 (7th Cir. 1988; cert. denied, 493 US 847 (1989)).
[367] The second, and more modern, school of thought challenges the traditional orthodoxy. At heart it holds that High Court judges have always had, and still have, an independent capacity to intervene by way of judicial review to restrain the abuse of power and to secure good administration. Protagonists of this school of thought include, amongst commentators, Professors Oliver and Craig in the United Kingdom, and Professor Cane in Australia. Amongst the senior judiciary its adherents include Sir John Laws and Sir Stephen Sedley. At rock bottom the broad concern is to identify what might be termed “core public law values” and secure better governance.
[368] Again, these two schools of thought are reflected in the position of the parties before us: Mr Curry stands firmly on what I have called the “traditional” orthodoxy while Mr Hodder on this occasion advances a thoroughly “modernist” argument.
[369] As a matter of fairness, to exercise a putative right of reply for Mr Curry, there are a number of decisions in courts of the highest authority (particularly the High Court of Australia) to the effect that judicial review should not allow courts to impose ideas about “good administration” or “good governance” on the executive or other governmental bodies. Historically, or so the argument runs, judicial review involved a “power grab” by the courts which is bearable and even beneficial, so long as it is kept within its traditional bounds and goes no further than it already has.
[370] In light of this division, it is obvious that one of the fundamental difficulties which afflicts judicial review is that there is a widespread disagreement about the fundamental task of the reviewing judge. It is true that all basic building blocks of the law attract some measure of disagreement about “purposes”, but none have the difficulties, or the “edge” that judicial review attracts, given its impact on government and governance. And when fundamental disputes about “purpose” are leavened with confusion as to the principles on which courts will intervene (often called the “grounds for review”), the state of the law is rendered distinctly problematic.
The principles of judicial review
[371] The Chief Justice of New Zealand, writing extra-judicially, has suggested that “the Courts are largely adrift” in dealing with cases where the decision maker has (to put it broadly) got the decision wrong: Elias “The Impact of International Conventions on Domestic Law” (Address to the Conference of International Association of Refugee Law Judges, March 2000) at 8.
[372] The nautical metaphor can be pressed further. William Prosser, the doyen of American torts scholars, once recounted something said by a West Coast North American Indian sitting on a rock and looking out to sea: Lighthouse, him no good for fog. Lighthouse, him whistle, him blow, him ring bell, him flash light, him raise hell; but fog come in just the same. Prosser went on: That quotation has been haunting me. I have the feeling that it has some application to something connected with the law, but I do not know exactly what. I have shown it to a number of lawyers, and some of them have told me that it summarizes for them a lifetime of argument before the courts. Some of the judges seem to think that it describes the thankless task of writing opinions for the bar to read. To some morose and melancholy attorneys it calls at once to mind their relations with their clients. One man was sure that it must have something to do with the income-tax regulations, although he was by no means clear as to precisely how. Among only one group have I found general and enthusiastic agreement. I have yet to show that quotation to any professor of law who did not immediately say, with a lofty disregard of the laws of English grammar, “That’s me!” See “Lighthouse No Good” (1948) 1 J Leg Ed 257 at 257.
[373] The public law practitioner could also say: “That’s me!” The reason is that judicial review is a critically important beacon and guard against abuses of power. But it does presently stand in something of a fog of mushy dogma. And lighthouses do not work by themselves. They function effectively only in concert with complete and precise charts. It is a pressing task for the courts to ameliorate the problem of fog in judicial review.
[374] There is one possibility I can get out of the way at the outset. Every so often a senior judge attempts to formulate a unified theory of judicial review, by reducing everything to one theorem.
[375] One example was the extra-judicial suggestion by Sir Robin Cooke (as he then was) that “it might not be an altogether absurd over-simplification to say that the day might come when the whole of administrative law could be summed up in the proposition that the administrator must act fairly and reasonably”: “The Struggle for Simplicity in Administrative Law” in Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 1 at 5.
[376] More recently, in “Administrative law in Australia: Themes and values” in Groves and Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 15, the newly appointed Chief Justice of Australia, Robert French, has suggested that (at 23): ... [A]dministrative justice in the sense administered by the courts may be identified as follows: Lawfulness – that official decisions are authorised by statute, prerogative or constitution. Good faith – that official decisions are made honestly and conscientiously. Rationality – that official decisions comply with the logical framework created by the grant of power under which they are made. Fairness – that official decisions are reached fairly, that is impartially in fact and appearance and with a proper opportunity to persons affected to be heard. The learned Chief Justice explicitly gives his “grand theory” objective (and background in physics) away, when he goes on to note that “the identification of these elements of administrative justice is a little like the identification of ‘fundamental’ particles in physics” (at 24).
[377] Even senior appellate courts are not immune from this sort of approach. Recently, the Supreme Court of Canada opted for a dual standard of review, “correctness” and “reasonableness”, which one suspects will bring its own very real share of difficulties: Dunsmuir v New Brunswick 2008 SCC 9 at [34].
[378] Both practitioners and representatives of governmental bodies will rightly state the obvious: that grand theorem approaches fail to drill down far enough to enable respectable advice to be given to parties who are supposed to abide by the law. In short, better charts are needed, without simply exchanging one shibboleth for another.
[379] Another concern is that things like spectrums of response and “deference” in this subject area are ultimately quite unhelpful, and even unworkable. To say that something rests somewhere on a “continuum” is a conclusion, not a principle; it does not tell us how that point in a spectrum is reached. And courts do not defer to anything or anybody: the job of courts is to decide what is lawful and what is not.
[380] As far as the grounds of review are concerned, the difficulty stems partly from the lack of an agreed classification or taxonomy, accompanied by properly developed substantive principles as to when a court will intervene by way of judicial review, particularly in “merits” cases. Then too, there will always be problems of application in the law, but when the underlying principles are obfuscated, there is cause for real concern. The costs of litigation are extremely high in this area, and “uncertainty” is, I think, a major contributing factor to those costs. This in turn restricts access to the courts, which is most undesirable in judicial review.
[381] Perhaps the best way to understand the concerns which judicial review endeavours to reach is to consider the various grounds in functional rather than doctrinal terms. One good reason for a functional rather than doctrinal analysis is that it helps to transcend unhelpful semantic or terminological quibbles.
[382] First, there are procedural grounds of review. These focus on the conduct of the decision maker and include procedural fairness requirements, fair hearing rules, and rules against bias. These sort of rules are well enough settled.
[383] Secondly, there may be concern over the decision maker’s reasoning processes. This is where the vast majority of judicial review cases fit given that it includes things like misappreciation of the law; unauthorised delegation; and the perennial problem of control of the exercise of a discretion. All of this is the stuff of legality and everyday lawyering and, in fairness, the principles “fog” is not at its densest here.
[384] Thirdly, there are grounds which in one sense or another relate to the decision itself, rather than the procedures adopted or the reasoning process. This is easily the most contentious functionalist category of the grounds for judicial review. The argument here is that there should be substantive grounds of review, even where a decision maker has assiduously followed all required procedures and has made no errors of reasoning. But here the fog is presently a “pea souper”.
[385] One thing should be said at the outset. Every so often some commentator suggests that “activist” judges are somehow intent on taking over and making “merits” decisions for themselves. However, in my experience, judges do not like making merit decisions. They are relieved when “government” makes a clear or at least workable decision. Knowing – or purporting to know – what is best for somebody or something else is a dangerous enterprise; judges, of all people, see in their daily work instances of ill or insufficiently considered actions which can cause great difficulties in the lives of others. And they appreciate that judicial review is not an appeal: it is a “review” of what has occurred, but with an emphasis upon principles which ought, in terms of Prosser’s fog metaphor, to be respectably well defined.
[386] If, therefore, judges are going to approach the merits of a decision, the analysis has to be undergirded by something other than concern about the decision as such. That is, there has to be something or some things in a sense standing “outside” the particular decision which rightly attracts judicial concern. The most obvious candidate is the concept of abuse of power, which lies at the very heart of administrative law. See Sedley LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498; [2008] QB 365 at [60] (CA): “[Abuse of power] is what the courts of public law are there to identify and, in proper cases, to correct ...”. The French would say that abuse of power is a stand-alone type of illegality: see Auby “The Abuse of Power in French Administrative Law” (1970) 18 Am. J. Comp. L. 549. The term “abuse of power” should not be understood as necessarily pejorative: to act outside one’s powers, in genuine error, is still an abuse of power and the traditional “four-corners” doctrine reels in the large majority of abuses of power. The central issue is, what beyond that orthodoxy ought to be addressed, and how?
[387] There is here a preliminary issue which has vexed pre-eminent social and political philosophers worldwide, and is an issue for lawyers: the very nature of power. There are broadly two possible responses.
[388] The continental school tends to see power as a thing in itself. De Tocqueville suggested that it is men who build up institutions and enslave themselves in a universally tragic way. M de Jouvenal in Du Pouvoir treated power as if it is a morbid pathology, rather like a terrible god with deterministic outcomes. The notion of power as a thing in itself can be seen in the writings of Kant and Nietzsche. [389] The English school is more pragmatic: it does not see power as a thing in itself. Lord Radcliffe of Werneth put it wonderfully well in Lecture VII of his 1951 Reith Lectures (published as The Problem of Power (1952) at 99 – 100): Take away the abstract idea and there remains nothing but the conduct of men, human beings, who occupy in their turn the seats of authority. It does not seem to me that there is only one possible attitude towards authority or one inevitable set of rules that govern its exercise. Attitudes change with the social conditions which surround authority and, as we have seen, men in their turn exalt and denigrate power under the impulse of their general attitude towards life itself. You can see it your own way, so long as you know what that way is. It reminds me of an old saying: ‘Take what you want’, said God; ‘take it, and pay for it.’
[390] If Lord Radcliffe is right, and I think he is, it would follow that it ought to be possible to do something practical about the problem of abuse of power through the development of distinct substantive principles in relation to merit decisions.
[391] It is not possible in a judgment to describe what a full scheme of principles based on that fundamental objective might look like. But the law is already moving slowly in the direction of building on that concept. For instance, one area which is now relatively well recognised by the Anglo-New Zealand judiciary is that, in the area of human rights, an otherwise lawful response must still be a proportionate one.
[392] Another possible doctrine is that of substantive unfairness, to be deployed in situations where a result is arrived at which is within the powers of the particular authority but which is so grossly unfair that it ought to be impugned. That is what I effectively held in NZFP Pulp and Paper Ltd v Thames Valley Electric Power Board HC HAM CP35/93 1 November 1993. Although that approach was not favoured by this Court on appeal (see Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641), in Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58, this Court held that (at 66): The concept of substantive fairness ... also requires further consideration. The law in this country applicable to situations of that kind will no doubt be developed on a case by case basis.
[393] In this instance, I did not understand Mr Hodder to be arguing for an incremental gloss on the well-known Mercury Energy “fraud, corruption or bad faith” test. His argument, at least as I apprehended it before us, was that there should be a distinct substantive principle on which the merits of a decision can be attacked. Mr Hodder put it this way in oral argument: Public powers and resources under our system are to be used in the public interest, and they are misused or abused if they are used and diverted to private advantage, obviously, apart from statutory authorised grants or where there is contract for mutual benefit. But that’s the essence of the responsibility of public power. It has to be used in the public interest not for private interests.
[394] I will deal with this proposition of a “no-conflict” principle in government contracts later in this judgment. I mention it at this point only because, as I apprehended it, this is where Mr Hodder’s principle would fit in the sort of taxonomy I have been discussing. It must be at least implicit, if not explicit, in Mr Hodder’s proposition that this is a substantive principle which we need in New Zealand today. That brings me to the next subset of comment.
Place
[395] Francis Cooke QC has recently noted that in New Zealand administrative law, “we still take our lead from the United Kingdom”: “Relief at Last” in Administrative Law (New Zealand Law Society Intensive, August 2008) 31 at 31. Whilst a respectful eye will doubtless continue to be cast on judicial review developments in England, I agree that New Zealand has to develop its own solutions in terms of its own needs and aspirations. There are some difficulties which ought to be made explicit here.
[396] One is the question of “opportunity”. Professor Burrows has remarked that case-made law “scores its runs in singles”. That is a real difficulty in a small country like New Zealand, with only an irregular supply of cases (“the bowling”), and consequently the run accumulation technique becomes highly problematic. Commentators in New Zealand routinely fail to focus sufficiently on the “supply” side of bowling from which a respectable innings may be fashioned. It is difficult for senior judges to work at the problem systematically. There is instead an intermittent and somewhat mad-headed chase after the “latest case” on the part of the bar and commentators, and seminars sprout up as if there has been a seismic shift when one case is decided.
[397] A second and related problem is, if I may resort to Willis Airey’s splendid phrase of a “Small Democracy”, that single judicial review decisions in New Zealand have a disproportionate impact. In recent years in the United Kingdom, Lord Woolf, then Lord Bingham, have had to deal with the tensions which arise between the judiciary and the executive when the judiciary exercises a firmer hand. The English judiciary has survived, and many may think it has undertaken its task admirably across a real run of cases. But quite how things would go in a much smaller and more visible “Small Democracy”, where a pebble in a pond has the effect of a boulder, is more problematic.
[398] Thirdly, we should not overlook the problem that if the goal of administrative law is to be defined partly in terms of somewhat broader objectives – such as, for instance, the promotion of good governance – one would normally pay close regard to the empirical evidence that administrative law can actually achieve that end. Regrettably, there is little in the way of empirical evidence in the New Zealand context as to whether administrative law as a behaviour modification mechanism in government actually works. Such empirical evidence as there is in other jurisdictions tends to suggest that administrative law is likely to be able to make only a modest contribution to the promotion of external goals. If that is right, it may suggest that such substantive doctrines as are developed for merit review should go only to what might be termed “true excesses”.
