Foundations of Judicial Review Flashcards
Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts’ powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?
introduction
- Joseph’s statement is underlined by a number of assertions which need to be addressed carefully in order to express disagreement with him:
o Assertion #1: The principles of judicial review (JR) are based on the common law; and
o Assertion #2: The legitimacy of the courts in invalidating decisions of democratically empowered decision-makers is unaffected by those principles being based on the common law. - It will be argued, contrary to these assertions that:
o In dealing with assertion #1, the principles of judicial review are not so easily ascribable to the common law both in doctrine and in fact; and
o In dealing with assertion #2, even if the principles of JR can be said to be based in the common law, the legitimacy of the court, although sustainable when invalidating SOME types of decisions and/or decision-makers, it cannot account for the entire field of JR as Parliamentary sovereignty is undermined by statutory powers are concerned.
Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts’ powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?
Common Law Theory, its Strengths, and its Problems
- OUTLINE: Common Law Theory
o Briefly, Craig [(1999) PL], as one of the prominent common law theorists, argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the “common law standards of good administration”.
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, they are enforcing their own judicial will and standards, not those of Parliament. - STRENGTH #1: Factual Honesty
o Galligan’s “standards of good administration” would include principles such as:
♣ The requirement of fairness (as seen in Cooper v Wandsworth, Osborn v Parole Board, amongst many other cases);
♣ The rule against bias (as seen in Porter v Magill, Pinochet (No 2), amongst many other cases);
♣ The protection of legitimate expectations (as seen in MFK Understanding, ex parte Unilever, ex parte Coughlan, amongst many other cases);
♣ Prohibitions against fettering of discretion (in the numerous forms seen in British Oxygen v Minister, ex parte Kynoch, amongst many other cases); and
♣ Reasonableness (Wednesbury v Associated Picture).
o These principles, as Laws [(1995) PL] points out, and opposing author Forsyth [(2000) Judicial Review and the Constitution] concedes, are creations of the common law and judicial innovation.
o This lends common law theory factual honesty (which Laws (1995) and Craig [(1998) CLJ] argue the modified ultra vires theory lacks – discussed below) and internal coherence as it is clear that Parliament does not (or if it does, rarely ever) explicitly legislates that the above-mentioned principles are to be applicable in the field of administrative law. In fact, in Wilkinson v Barking, the court even noted that unless it is clear that Parliament intended to displace the principles of procedural fairness, the courts would be reluctant to disapply them.
o As such, there is some truth to Joseph’s assertion that the principles of JR are “sourced in the common law”, in the sense that they originate therefrom. However, to sustain the assertion that the common law forms the constitutional foundation of JR, we need to look deeper. - STRENGTH #2: Accounting for Non-Statutory Powers and Bodies
o Beyond factual honesty, the common law also seems to be a legitimate foundation for the courts’ application of its standards of good administration insofar as non-statutory powers and bodies are concerned.
♣ In Lewis v AG of Jamaica, the Privy Council enforced the principles of natural justice against the Mercy Committee in the exercise of their prerogative powers of mercy.
o Forsyth [(1996) CLJ] himself noted that the ultra vires doctrine (discussed below) was “never [meant to be] the sole justification for judicial review”, and that the common law can legitimately form the basis of JR of non-statutory powers and bodies.
o As seen in ex parte Bentley, the Home Secretary in the UK (typically considered a “democratically empowered decision-maker”—although this will be explored more thoroughly later) exercises the mercy prerogative.
♣ The fact that his decisions, given their prerogative nature, can be subject to JR purely on the basis of the common law (even on Forsyth’s account) without calling into question the courts’ legitimacy to do so, gives some credit to Joseph’s support of the common law as the foundation of JR.
♣ However, this is only observable with regards to non-statutory powers of democratically empowered decision-makers, or the powers of non-democratically empowered decision-makers (such as that seen in ex parte Datafin).
♣ Where statute comes into play, the common law theory runs into contravening the doctrine of Parliamentary Sovereignty (PS). - WEAKNESS: Misalignment with Parliamentary Sovereignty
o Forsyth [(2000) Judicial Review and the Constitution] put forth a convincing case (expanding on the case he built in [(1996) CLJ]) that common law theorists (or “weak critics” as he called them), even if they do not intend to do so, necessarily undermine PS. Allan [(2002) CLJ], despite being in an entirely different camp, also makes the same point.
♣ Forsyth (2000) puts forward the following two propositions:
• Common law theorists propose that the common law will require decision-makers to apply the standards of good administration unless Parliament clearly intends otherwise.
• Ultra vires theorists propose that unless Parliament clearly intends otherwise, it is presumed that Parliament intended for the decision-makers to abide by the common law standards of good administration.
♣ Although similar, without the presumption that Parliament impliedly intended for such standards to apply, the common law will necessarily be supplementing the absolute criteria set out in legislation without Parliamentary mandate and therefore undermining PS.
• E.g. If legislation stipulates that X, Y and Z are criteria required for exercising a power, if the common law were to include the standards of good administration (e.g. natural justice), this would effectively mean that Parliament’s authority to lay down absolute criteria is undermined, and therefore its sovereignty.
• This he argues, transmutes the ‘weak’ ultra vires critics that adopt common law theory without seeking to challenge Parliamentary sovereignty, into ‘strong’ critics which challenge Parliamentary sovereignty, whether they intend to or not.
o The force of logic in Forsyth’s argument is undeniable but is challenged on two fronts:
♣ Firstly, Laws’ [(1995) PL] argues that the common law can legitimately fill in gaps left by Parliament when it is silent and presumably agnostic as to the applicable standards of good administration.
♣ Secondly, Jowell [(2000) Judicial Review and the Constitution] argues that the court should not be reduced to a mere bureaucrats enforcing Parliamentary will. They should be recognised as an independent institution whose function is to “[form] their own view”.
♣ Read together, these arguments seems to show that the courts would be acting legitimately by imposing their own standards of good administration where Parliament is silent. After all, Parliament retains the ultimate right to break the silence and exclude the courts from continuing to do so if it so desires.
♣ However, although compelling, this proposition runs into subsequent theoretical difficulties—in that it fails to account for the courts’ treatment of administrative acts which contravene the common law standards of good administration as void ab initio (as seen in DPP v Head amongst many other cases), something which is reliant on the doctrine of ultra vires. If an act is only unlawful by virtue of its contravention of the common law, and not Parliament’s legislation, it should simply be voidable, not void.
o Joseph’s statement therefore, despite being sustainable at some levels as discussed above, is not correct. By “sourcing” the principles of JR in the common law in a doctrinal sense that goes beyond factual honesty, a crisis of legitimacy over the courts’ powers to invalidate decisions of democratically empowered decision-makers does arise.
o If it were to do so, it would undermine the sovereignty of Parliament, and unless orthodoxy is to be relinquished (as is along the lines of what Allan [(2002) CLJ] suggests), Joseph’s support for the common law as the basis of JR is doctrinally unsustainable.
Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts’ powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?
Modified Ultra Vires as a Better View
- OUTLINE: Modified Ultra Vires Theory
o Briefly, Forsyth and Elliott, as prominent MUV theorists, have in many places ([(1996) PL], [(1999) CLJ], [(2000) Judicial Review and the Constitution], and [(2003) CLJ]) argued that the basis on which the courts can give effect to the common law standards of good administration, is on the implied assumption that Parliament is taken “to have granted an imprimatur” to the courts to apply and develop the law in this area (Forsyth, 1996).
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, although they are enforcing their own judicial will and standards, such enforcement is impliedly authorised by Parliament.
o However, as will be discussed below, this view is not as artificial as it appears to be as MUV theorists ultimately still recognise judicial creativity in this area. It merely brings that creativity in-line with Parliamentary sovereignty using the implied assumption stated above. - STRENGTH #1: Alignment with Orthodoxy
o As Forsyth (2000) correctly points out, Lords Steyn, Browne-Wilkinson, Irvine, and Slynn (amongst others) have all acknowledged ultra vires as the basis of JR (most notably in Boddington v British Transport Police).
♣ So while there may be some faults with this proposition, it is relatively clear that it is law that Parliament impliedly intends for the court to give effect to such standards (or as Lord Steyn put in ex parte Pierson, “Parliament does not legislate in a vacuum… [but] for a European liberal democracy founded on the principles and traditions of the common law…”
♣ This allows the court to act on Parliament’s imprimatur, be recognised as the source and keepers of these standards of good administration, yet without illegitimately “imposing an additional requirement for validity” (Forsyth, 2000) beyond the limits set by Parliament. - STRENGTH #2: Minimal Artificiality
o A core criticism of the above-mentioned proposition is put forward by Craig [(1998) CLJ] who noted that this approach “does not accord with reality”. Bamforth [(2000) Judicial Review and the Constitution] seems to agree with this, and points out that Wade and Forsyth [(1994) Administrative Law] have even conceded that ultra vires theory involves “a high degree of artificiality”. Simply put, critics are dissatisfied with the artificiality of attributing what are clearly judicial doctrines and developments to Parliament.
♣ However, refinement of the doctrine since that concession demonstrates the weakness of this criticism. Elegantly summing up his response, Forsyth [(2000) Judicial Review and the Constitution] noted that the MUV theory “does not assert that every nuance of every ground of judicial review is to be found in the implied intent of the legislature… It simply asserts that when the courts do turn to common law principle to guide their development of judicial review they are doing what Parliament intended them to do.”
♣ Support for the idea that the development of principles of JR can be attributable to Parliament even without changes to legislation can be found with Lord Mustill in ex parte Doody, where he noted that although “there is a presumption that [powers] will be exercised in a manner which is fair… the standards of fairness are not immutable”.
♣ As such, MUV theory only makes the minimal assertion that Parliament impliedly sanctions/authorises the application of JR principles, without which, Parliamentary sovereignty would be undermined by the courts’ supplementation of additional requirements for the exercise of pubic powers, effectively preventing Parliament from setting definitive limits.
o Nonetheless, there is still a measure of artificiality in this proposition, as Laws [(1995) PL] points out, common law theorists only assert that the principles of JR are only applicable where Parliament is silent and presumably agnostic. On this view, should Parliament explicitly state that it intends for such principles not to apply, the court cannot act in defiance of this, and Parliamentary sovereignty is preserved.
♣ However, as Elliott [(2000) Judicial Review and the Constitution] points out, Laws’ proposition that Parliament might be agnostic is even more artificial as Parliament’s very job is to have views, it would surely have some on crucial matters such as the standards of good administration.
♣ Or, as Forsyth [(2000) Judicial Review and the Constitution] put it, “even the most dim-witted legislator… will, if asked, say that in legislating they intend that the powers granted should be fairly exercised”.
o As such, although it is undoubtedly more honest to say as Joseph does that the principles of JR are “sourced in the common law”, to accept the common law as the constitutional basis of JR, trades orthodox for honesty. The MUV theory as detailed above, does not require this as it both recognises orthodoxy, and is not as “artificial” as critics would suggest. - APPARENT WEAKNESS: Non-Statutory Powers and Bodies
o An issue which is pertinent to the debate about the constitutional foundations of JR is the democratic empowerment of the decision-maker in question. This is mostly a non-issue as most decision-makers’ (the Executive Government, Local Authorities, various Commissioners, etc.) draw their decision-making powers from Parliament (sometimes indirectly when subsidiary legislation is concerned) which can be said to “democratically empower” them.
♣ However as discussed above, the Executive Government has prerogative powers which do not stem from Parliament. And given that they are not elected in the strict sense—although they may be elected as Members of Parliament (they need not be, as they can may be Peers), they are not elected to their executive positions—Joseph’s statement has some truth (discussed above as a strength of the common law theory).
o Although Forsyth [(1996) CLJ] justifies this gap in the ultra vires theory by saying that it was “never [meant to be] the sole justification for judicial review”, it is somewhat unsatisfying to suggest that the source of the courts’ power to give effect to the same principles of JR stem from two separate bases. Or as Jowell [(2000) Judicial Review and the Constitution] criticises, “both statutory and non-statutory bodies [and powers] should be governed [by the same principles], if the functions they perform are equivalent.”
♣ Elliott [(1999) CLJ] deals with this by arguing that the “whole of judicial review rests on… the rule of law”, and that by implying the intention to legislate in accordance with the common law principles of good administration (unless Parliament clearly indicates otherwise), the courts are giving effect to the rule of law.
♣ On this view, where statutory powers are concerned, the courts are giving effect to the rule of law through the presumption that Parliament intends for them to do so, and outside of statutory powers Or as Elliott put it, “the rule of law can be effectuated directly, since the constraints which the sovereignty principle imposes on review of statutory power do not operate”.
o Elliott refines how we conceive of the doctrine of ultra vires. He sets aside the contrived notion that ultra vires is about what Parliament intends, and proposes that we recognise that the true foundation of JR is the rule of law which is given effect by the courts. The role of Parliamentary intention (given Parliament’s status as the sovereign) is as a co-existing, but superior fundamental constitutional principle of the UK—where Parliamentary intention excludes the rule of law, it must prevail if we continue to accept that Parliament is sovereign. However, where Parliament is silent, it can be fairly presumed that it intends for the courts to give effect to the rule of law.
♣ Therefore, by adopting this more refined version of ultra vires theory, we can reconcile the court’s application of its common law standards of good administration in cases of statutory and non-statutory powers. On both accounts, the rule of law is the true “basis” of JR, and the presumption of Parliamentary authorisation is simply necessary to recognise Parliamentary sovereignty as a superior principle to the rule of law in UK constitutionalism. - APPARENT WEAKNESS: Ouster Clauses (not necessary for this question)
o Craig [(1998) CLJ] points out the “internal tension” within the ultra vires theory created by the House of Lords’ treatment of the ouster clause in Anisminic. The issue being: how can Parliament both intend to oust JR, while implicitly intending for the courts to give effect to the rule of law which requires access to justice?
♣ Although seemingly self-contradictory as Craig suggests, his argument fails to recognise that ouster clauses contain ambiguities and can be reasonably interpreted to varying effect depending on the wording of the clause.
♣ This can be seen from the debate surrounding the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003 which included an ouster clause which lifted Lord Reid’s words from Anisminic in order to create an ouster clause which would exclude even “purported determinations”.
♣ As such, ouster clauses should not be taken, in every incarnation to be “all-out” attempts by Parliament to prevent judicial intervention; if there are ambiguities, it is certainly permissible that Parliament might have intended for it to have effect only in certain situations.
o Once we recognise that such ambiguities exist, there is no longer any internal tension. Given Elliott’s [(1998) CLJ] proposition that the courts’ job is to balance the competing considerations of Parliamentary sovereignty and the rule of law, such ambiguities gives legitimate room to the court (as it did in Anisminic) to uphold the rule of law without undermining Parliamentary sovereignty.
♣ Sales LJ’s judgment in Privacy International v Investigatory Powers Tribunal seems to support this. Disagreeing with Leggatt J’s comments in the High Court, who suggested that ambiguity in the language of the ouster clause is unnecessary to give rise to the presumption that Parliament did not intend to prevent JR, Sales LJ’s said that the clarity of the clause would affect the court’s latitudinal ability to reduce its effect. On his view, only in the absence of such clarity, and where there are sufficient rule of law considerations pulling it to do so, should the court resist an ouster clause (which it did not in this case because the scheme of the Act concerned provided for statutory appeal).
o Therefore, the “internal tension” Craig highlights within the MUV theory is not truly a tension, but rather an unavoidable “constitutional triangulation” (Elliott [(2017) PLFE Blog]) the courts must go through when determining (given the ambiguity and/or clarity of the ouster clause) the degree to which Parliament truly intended to legislate against the principles of the rule of law, and minimise separation of powers. - APPARENT WEAKNESS: Usurpation of Decision-Making Authority
o Although, on the MUV theory, we can assume that Parliament intended for the court to give effect to the common law principles of good administration, as Forsyth [(2000) Judicial Review and the Constitution] concedes, the theory does not help inform to what degree those standards should be imposed.
o Without such guidance, the application and development of those standards is largely unrestricted. Consequently, if the court imposes extremely strict standards that effectively diminishes the decision-maker’s conferred discretion, it might be argued that the courts are still acting illegitimately by usurping the decision-maker’s authority (especially if democratically granted to him by Parliament).
o And even if we adopt, as Joseph suggests is correct, the common law as the basis of JR, usurpation of powers would still call into question the legitimacy of the courts in invalidating the decisions of democratically empowered decision-makers. This is a problem which is certainly not “difficult to fathom”.
♣ A notable example is Coughlan, where the court, by strictly enforcing the common law doctrine of legitimate expectations, took into its hands what seemed to be a polycentric and meritorious decision which should rightfully have been within the domain of the executive.
♣ Although it might be possible to justify Coughlan, it does not appear to be necessary. As Craig [(2016) Administrative Law] notes, the courts are not a perfect institution which does not err. They sometimes “evince a preference for the common law over legislation”, and instances of over-overstepping of boundaries are bound to happen. Accordingly, such isolated mistakes cannot be said to take away an institution’s legitimacy.
♣ This proposition will only fail if the courts’ intrusions into executive decision-making authority goes beyond isolated instances, and amounts to being categorical. If that were to happen, it might have to be conceded that even the MUV theory will not be able to legitimise JR on every front. But this is unlikely, and as Craig [(2016) Administrative Law] notes, given the advent acceptance of the MUV theory as the orthodox basis of judicial review, the courts have become “more aware of the limits to the exercise of judicial power”.
Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts’ powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?
Conclusion
- There is an aspect of Joseph’s statement that is undoubtedly true—that the principles of JR are “sourced” in the common law; i.e. they are creatures of judicial innovation. However, when we attribute the courts’ powers of JR to directly to the common law as the common law theorists do, it is quite apparent that a crisis of legitimacy arises, contrary to Joseph’s disbelief.
o The common law theory’s main appeal seems to be factual honesty, but as shown, the MUV theory does not actually guise judicial creativity behind Parliamentary intention; so there seems to be little reason to abandon ultra vires for the common law. It not only undermines Parliamentary sovereignty which would create a crisis of legitimacy as demonstrated above, but it also fails to fit in with judicial proclamations of ultra vires and the fact that unlawful decisions are treated as void ab initio, not voidable.
o To abandon ultra vires for it would create unnecessary “uncertainty and confusion” Forsyth [(2000) Judicial Review and the Constitution]. So as Forsyth put, “the prudent course is to stick with the devil we know”, and reject Joseph’s statement.
Allan argues that: ‘Despite their protestations to the contrary, the common law theorists cannot reasonably object to ultra vires in its very modest “modified” version while continuing to accept absolute parliamentary supremacy.…In so far as the common law basis of judicial review is offered as a viable and genuine alternative to legislative intent, broadly understood, it entails at least a limited qualification of legislative power.’ Is this true?
Introduction
- Allan’s statement is underscored by two assertions which need to be explained and addressed before I can express broad agreement with him:
o Assertion #1: Common law theory entails at least a limited qualification of legislative power; and
o Assertion #2: Common law theorists cannot reasonable object to ultra vires theory in its “modified” version (notably defended by both Elliott and Forsyth in numerous places). - However, although Allan merely criticises the common law theory in this statement, his broader argument (put forward notably in [(2002) CLJ], where the statement is taken from; and [(2003] OJLS]) calls into question ultra vires theorists’ unqualified acceptance of Parliamentary sovereignty as well.
o It will be argued that Allan’s broader argument, while telling of a more complex relationship between the court and Parliament that the general debate on the constitutional foundations of judicial review (JR) will disclose, ultimately is less sustainable than the MUV theory, and he also cannot reasonably reject it.
Allan argues that: ‘Despite their protestations to the contrary, the common law theorists cannot reasonably object to ultra vires in its very modest “modified” version while continuing to accept absolute parliamentary supremacy.…In so far as the common law basis of judicial review is offered as a viable and genuine alternative to legislative intent, broadly understood, it entails at least a limited qualification of legislative power.’ Is this true?
Assertion #1: Common Law Theory and its Contradiction of Parliamentary Sovereignty
- OUTLINE: What is the Common Law Theory?
o Briefly, Craig [(1999) PL], as one of the prominent common law theorists, argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the “common law standards of good administration”.
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, they are enforcing their own judicial will and standards, not those of Parliament. - WEAKNESS: Misalignment with Parliamentary Sovereignty
o Although there are some positive aspects of the common law theory (mostly its factual honesty in recognising that the application and development of the common law standards of good administration is entirely attributable to the court, and not to Parliament; and its ability to account for the application of those principles to non-statutory powers and bodies), as Allan [(2002) CLJ] (the article from which the quote in the essay title is taken) points out, it undermines Parliamentary sovereignty.
o This argument was first made by Forsyth (in [(1996) CLJ] and [(2000) Judicial Review and the Constitution]). He argues that common law theorists (or “weak critics” as he called them), even if they do not intend to do so, necessarily undermine PS. Allan (2002) subsequently expressed agreement with Forsyth on this, stating that he was “right to maintain the ‘weak’ critics of ultra vires… are [necessarily] transmuted into ‘strong’ critics”.
♣ To make his argument, Forsyth (2000) puts forward the following two propositions:
• Common law theorists propose that the common law will require decision-makers to apply the standards of good administration unless Parliament clearly intends otherwise.
• Ultra vires theorists propose that unless Parliament clearly intends otherwise, it is presumed that Parliament intended for the decision-makers to abide by the common law standards of good administration.
♣ Although similar, without the presumption that Parliament impliedly intended for such standards to apply, the common law will necessarily be supplementing the absolute criteria set out in legislation without Parliamentary mandate and therefore undermining PS.
• E.g. If legislation stipulates that X, Y and Z are criteria required for exercising a power, if the common law were to include the standards of good administration (e.g. natural justice), this would effectively mean that Parliament’s authority to lay down absolute criteria is undermined, and therefore its sovereignty.
• This he argues, transmutes the ‘weak’ ultra vires critics that adopt common law theory without seeking to challenge Parliamentary sovereignty, into ‘strong’ critics which challenge Parliamentary sovereignty, whether they intend to or not.
o The force of logic in Forsyth’s argument is undeniable but is challenged on two fronts:
♣ Firstly, Laws’ [(1995) PL] argues that the common law can legitimately fill in gaps left by Parliament when it is silent and presumably agnostic as to the applicable standards of good administration.
♣ Secondly, Jowell [(2000) Judicial Review and the Constitution] argues that the court should not be reduced to a mere bureaucrats enforcing Parliamentary will. They should be recognised as an independent institution whose function is to “[form] their own view”.
♣ Read together, these arguments seems to show that the courts would be acting legitimately by imposing their own standards of good administration where Parliament is silent. After all, Parliament retains the ultimate right to break the silence and exclude the courts from continuing to do so if it so desires.
♣ However, although compelling, this proposition runs into subsequent theoretical difficulties—in that it fails to account for the courts’ treatment of administrative acts which contravene the common law standards of good administration as void ab initio (as seen in DPP v Head amongst many other cases), something which is reliant on the doctrine of ultra vires. If an act is only unlawful by virtue of its contravention of the common law, and not Parliament’s legislation, it should simply be voidable, not void.
o Therefore, regardless of any positive normative or descriptive traits the common law theory may or may not have, it is inherently unsustainable and inescapably “entails at least a limited qualification of legislative power”.
Allan argues that: ‘Despite their protestations to the contrary, the common law theorists cannot reasonably object to ultra vires in its very modest “modified” version while continuing to accept absolute parliamentary supremacy.…In so far as the common law basis of judicial review is offered as a viable and genuine alternative to legislative intent, broadly understood, it entails at least a limited qualification of legislative power.’ Is this true?
Assertion #2: Modesty of the Modified Ultra Vires Theory
- OUTLINE: Modified Ultra Vires Theory
o Briefly, Forsyth and Elliott, as prominent MUV theorists, have in many places ([(1996) PL], [(1999) CLJ], [(2000) Judicial Review and the Constitution], and [(2003) CLJ]) argued that the basis on which the courts can give effect to the common law standards of good administration, is on the implied assumption that Parliament is taken “to have granted an imprimatur” to the courts to apply and develop the law in this area (Forsyth, 1996).
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, although they are enforcing their own judicial will and standards, such enforcement is impliedly authorised by Parliament.
o However, as will be discussed below, this view is not as artificial as it appears to be as MUV theorists ultimately still recognise judicial creativity in this area. It merely brings that creativity in-line with Parliamentary sovereignty using the implied assumption stated above. - STRENGTH: Alignment with Orthodoxy
o As Forsyth (2000) correctly points out, Lords Steyn, Browne-Wilkinson, Irvine, and Slynn (amongst others) have all acknowledged ultra vires as the basis of JR (most notably in Boddington v British Transport Police).
♣ So while there may be some faults with this proposition, it is relatively clear that it is law that Parliament impliedly intends for the court to give effect to such standards (or as Lord Steyn put in ex parte Pierson, “Parliament does not legislate in a vacuum… [but] for a European liberal democracy founded on the principles and traditions of the common law…”
♣ This allows the court to act on Parliament’s imprimatur, be recognised as the source and keepers of these standards of good administration, yet without illegitimately “imposing an additional requirement for validity” (Forsyth, 2000) beyond the limits set by Parliament. - APPARENT WEAKNESS: “Artificiality” of Parliamentary Intention
o A core criticism of the above-mentioned proposition is put forward by Craig [(1998) CLJ] who noted that this approach “does not accord with reality”. Bamforth [(2000) Judicial Review and the Constitution] seems to agree with this, and points out that Wade and Forsyth [(1994) Administrative Law] have even conceded that ultra vires theory involves “a high degree of artificiality”. Simply put, critics are dissatisfied with the artificiality of attributing what are clearly judicial doctrines and developments to Parliament.
♣ General Artificiality:
• However, refinement of the doctrine since that concession demonstrates the weakness of this criticism. Elegantly summing up his response, Forsyth [(2000) Judicial Review and the Constitution] noted that the MUV theory “does not assert that every nuance of every ground of judicial review is to be found in the implied intent of the legislature… It simply asserts that when the courts do turn to common law principle to guide their development of judicial review they are doing what Parliament intended them to do.”
• Support for the idea that the development of principles of JR can be attributable to Parliament even without changes to legislation can be found with Lord Mustill in ex parte Doody, where he noted that although “there is a presumption that [powers] will be exercised in a manner which is fair… the standards of fairness are not immutable”.
• As such, MUV theory only makes the minimal assertion that Parliament impliedly sanctions/authorises the application of JR principles, without which, Parliamentary sovereignty would be undermined by the courts’ supplementation of additional requirements for the exercise of pubic powers, effectively preventing Parliament from setting definitive limits. It does not, as common law theorists suggest, propose that Parliament implicitly intends to give effect to every single detail of the common law standards of good administration.
♣ Nonetheless, there is still a measure of artificiality in this proposition, as Laws [(1995) PL] points out, common law theorists only assert that the principles of JR are only applicable where Parliament is silent and presumably agnostic. On this view, should Parliament explicitly state that it intends for such principles not to apply, the court cannot act in defiance of this, and Parliamentary sovereignty is preserved.
• However, as Elliott [(2000) Judicial Review and the Constitution] points out, Laws’ proposition that Parliament might be agnostic is even more artificial as Parliament’s very job is to have views, it would surely have some on crucial matters such as the standards of good administration.
• Or, as Forsyth [(2000) Judicial Review and the Constitution] put it, “even the most dim-witted legislator… will, if asked, say that in legislating they intend that the powers granted should be fairly exercised”.
♣ Artificiality Surrounding Ouster Clauses:
• Craig [(1998) CLJ] argues that by artificially attributing judicial will to Parliament in the MUV theory, an “internal tension” is created within the ultra vires by the House of Lords’ treatment of the ouster clause in Anisminic. The issue being: how can Parliament both intend to oust JR, while implicitly intending for the courts to give effect to the rule of law which requires access to justice?
o Although seemingly self-contradictory and artificial as Craig suggests, his argument fails to recognise that ouster clauses contain ambiguities and can be reasonably interpreted to varying effect depending on the wording of the clause.
o This can be seen from the debate surrounding the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003 which included an ouster clause which lifted Lord Reid’s words from Anisminic in order to create an ouster clause which would exclude even “purported determinations”.
o As such, ouster clauses should not be taken, in every incarnation to be “all-out” attempts by Parliament to prevent judicial intervention; if there are ambiguities, it is certainly permissible that Parliament might have intended for it to have effect only in certain situations.
• Once we recognise that such ambiguities exist, there is no longer any internal tension. Given Elliott’s [(1998) CLJ] proposition that the courts’ job is to balance the competing considerations of Parliamentary sovereignty and the rule of law, such ambiguities gives legitimate room to the court (as it did in Anisminic) to uphold the rule of law without undermining Parliamentary sovereignty.
o Sales LJ’s judgment in Privacy International v Investigatory Powers Tribunal seems to support this. Disagreeing with Leggatt J’s comments in the High Court, who suggested that ambiguity in the language of the ouster clause is unnecessary to give rise to the presumption that Parliament did not intend to prevent JR, Sales LJ’s said that the clarity of the clause would affect the court’s latitudinal ability to reduce its effect. On his view, only in the absence of such clarity, and where there are sufficient rule of law considerations pulling it to do so, should the court resist an ouster clause (which it did not in this case because the scheme of the Act concerned provided for statutory appeal).
• Therefore, the “internal tension” Craig highlights within the MUV theory is not truly a tension, but rather an unavoidable “constitutional triangulation” (Elliott [(2017) PLFE Blog]) the courts must go through when determining (given the ambiguity and/or clarity of the ouster clause) the degree to which Parliament truly intended to legislate against the principles of the rule of law, and minimise separation of powers.
o As such, although it is undoubtedly slightly more honest to say that the common law standards of good administration are creatures of judicial innovation, and rejection of ouster clauses is the result of judicial will, accepting the common law as the constitutional basis of JR, ultimately trades orthodox for honesty. However, the value of this trade is greatly diminished by the fact that the MUV theory, as detailed above, both recognises judicial innovation (and in fact authorises it), while still maintaining the orthodox doctrine of Parliamentary sovereignty. Common law theorists therefore, as Allan says, cannot reasonably reject this modified and modest conception of ultra vires.
Allan argues that: ‘Despite their protestations to the contrary, the common law theorists cannot reasonably object to ultra vires in its very modest “modified” version while continuing to accept absolute parliamentary supremacy.…In so far as the common law basis of judicial review is offered as a viable and genuine alternative to legislative intent, broadly understood, it entails at least a limited qualification of legislative power.’ Is this true?
Allan’s Proposition v Modified Ultra Vires Theory (Whole section is question-specific)
- OUTLINE: What Does Allan Propose?
o Briefly, Allan [(2002) CLJ] proposes that the basis of judicial review cannot be so easily attributed to either legislative intention or the common law. It is dependent on a more complex understanding of Parliamentary sovereignty, which he argues is “confined by the judges’ duty to make sense of the law as a whole”.
♣ On his view, neither the common law theory nor the MUV theory offer instructive guidance to determine the answers to substantive questions arising in judicial review and the control of administrative power.
• Ultra vires theory is formalistic and largely devoid of content, because the “relevant legislative intent is supplied by judicial construction” (Allan, 2002).
• Conversely, common law theory is equally uninstructive as the various grounds of review are “essentially labels… affixed to conclusions drawn from… claims of injustice or impropriety in particular circumstances” (Allan, 2002).
• And the debate over which of this positions is preferable has become “ever more abstruse” and “less intelligible as a contribution to constitutional theory”. Instead, he notes that both legislative intention and the common law are of fundamental importance, and advocates that the debate should be focused on the correct meaning of “Parliamentary sovereignty” and the “rule of law”, which will help better inform how administrative law should function as a whole.
• Or as he put in [(2003) PL], the type of doctrinal analysis offered by MUV or common law theorists plays a “rather limited role”, and “neat jurisdiction answers… cannot shield us from the critical questions of substance where legal analysis and political judgment are inextricable intertwined.” - Utility of Allan’s Proposition
o Allan’s propositions highlight a key flaw within the MUV theory—its lack of substantive content.
o However, the same criticisms can be said to apply to rule of law, which Allan argues needs to be more meaningfully explored to better understand its relationship with Parliamentary sovereignty, and to therefore determine the true extent of legislative intention and Parliamentary authority.
♣ As Griffith [(1979) MLR] argued, the rule of law can be manipulated by those in power to preserve certain principles they deem important. It is difficult to pin down to be of instructive utility.
o As such, without comprehensively detailing exactly what the rule of law should be, Allan’s propositions seems to be of limited utility.
♣ Furthermore, Elliott [(1998) CLJ] already notes that the ultra vires doctrine is set alongside its constitutional counterparts—the rule of law and separation of powers. He merely gives greater weight to the preservation of formalistic idea that Parliament is sovereign, whereas Allan argues that Parliament’s sovereignty is necessarily qualified by the rule of law. - Allan should also Accept MUV Theory
o MUV theory’s recognition of the role the rule of law plays in relation to the court’s treatment of Parliamentary legislation closely aligns with Allan’s proposition while additionally maintaining respect to the current doctrinal orthodoxy surrounding Parliamentary sovereignty.
o Without a concrete conception of the rule of law to guide judicial actions, and examples of instances where the court has demonstrated blatant disrespect for Parliamentary sovereignty in favour of the rule of law (examples which MUV theory has failed to explain or account for), Allan’s theory is ultimately less sustainable than MUV theory and by his own criticism of common law theory, should yield to the force of its logic.
Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?
Introduction
- There are three main theories about the constitutional foundations of judicial review (JR): (a) the modified ultra vires theory; (b) the common law theory; and (c) Allan’s view which serves as a counter view to both theories.
o Their individual ability to accommodate the courts’ general resistance to ouster clauses varies based on how far they depart from the current orthodoxy that Parliament is sovereign.
o The greater they depart from orthodoxy, the greater explanatory value they have in relation to ouster clauses. - However, the debate about the constitutional foundations of JR is not, like this essay, about inquiring into the nature of Parliamentary sovereignty. As Forsyth [(2000) Judicial Review and the Constitution] put it, “the ultra vires doctrine is the consequence of Parliamentary sovereignty; it is not a defence of it.”
o On that note, moving forward with the assumption that the current orthodoxy is correct, it will be argued that although theories (b) and (c) can account for the courts’ general resistance towards ouster clauses, it comes at the expense of departing from orthodoxy.
o The modified ultra vires theory on the other hand, can do both.
Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?
What is the Court’s General Approach towards Ouster Clauses?
- The courts’ general resistance to ouster clauses is characterised by the House of Lords’ decision in Ansiminic. All the Lords therein (except for Lord Morris) held that (although Lord Pearson dissented on the facts) the ouster clause in question was not sufficiently clear to exclude JR of decisions which include an error of law which they said should be treated as an error of jurisdiction.
o The court effectively abolished the distinction between jurisdictional errors of law and non-jurisdictional ones (for the purposes of this case; it was only in ex parte Page where the court conclusively abolished the distinction).
o Their reason for doing so is best explained by Supperstone, Goudie and Walker [(2017) Judicial Review] who said that “an ouster clause is not sufficient described by the mere proposition that it limits, indeed excludes, the High Court’s jurisdiction; the real position is that by such a clause Parliament, in some circumstances, would be setting the decision-maker above the law.”
o Therefore, the effect of the decision in Anisminic is that where an ouster clause is ambiguously drafted, the court will take the conservative interpretation that Parliament did not intend to set the decision-maker above the law. - The court expanded on this notion in Privacy International v Investigatory Powers Tribunal, where it was said that the courts’ resistance towards ouster clauses is based in the rule of law which seeks to preserve access to justice and the notion that decision-makers should not be able to act outside the law.
o Leggatt J’s decision in the High Court said that whether the court would interpret an ouster clause to have no effect depends on the push and pull factors of the case—i.e. to what extent the rule of law would be undermined if the ouster clause were to be given effect.
o Sales LJ in the Court of Appeal agreed mostly, but qualified that he was of the opinion that the clarity of the drafting of the ouster clause would affect the ability of the court to resist its effects; while Leggatt J suggested that ambiguity was unnecessary for the court to do so, and that the key determinant was the need to uphold the rule of law. - This suggests that the courts’ general resistance to ouster clauses is based on their conception of what the rule of law requires and their corresponding ability to take advantage of ambiguity to apply the rule of law without undermining Parliamentary sovereignty.
Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?
Common Law Theory and Ouster Clauses
- What is Common Law Theory?
o Briefly, Craig [(1999) PL], as one of the prominent common law theorists, argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the “common law standards of good administration”.
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, they are enforcing their own judicial will and standards, not those of Parliament. - Can it Accommodate the Approach Described above?
o Forsyth [(1996) CLJ] makes reference to the South African case of Staatspresident v UDF, and argues that if the common law theory were to be adopted, the court would not be able to apply the reasoning in Anisminic as was the case in UDF which rejected ultra vires as the constitutional foundation of JR and accepted the common law model instead.
♣ Rabie ACJ in UDF reasoned that without ultra vires, the vague regulations would still be protected by the ouster clause because it was be made in accordance with the legislation.
♣ Therefore, to resist the ouster clause and conduct review of the regulations would undermine Parliamentary sovereignty.
o Craig [(1998) CLJ] rejects Forsyth’s argument and instead submits that the court in UDF could still have resisted the ouster clause by honestly admitting that it is upholding the rule of law (which was done only recently in Privacy International as discussed above) and restrictively construing the ouster clause to not exclude decisions (or regulations) which commit an error of law, or those that do not abide by the common law standards of good administration and are consequently unlawful.
♣ This argument seems to be both correct yet slightly wrong. Craig is right in suggesting that the court can use its interpretive abilities (against) the background of the rule of law) to restrictively construe ouster clauses to reach the same outcome as Anisminic.
♣ However, even if the court can get around the ouster clause using the common law theory, it will reach and impasse when the court actually comes to review the decision. As Forsyth [(1996) CLJ] points out, if a decision (or regulations) are made in accordance with the defined requirements set out in the statute, the courts will be, by imposing its own common law standards of good administration, undermining Parliamentary sovereignty by excluding Parliament’s right to set definitive requirements for valid jurisdiction.
♣ In this way, although the courts might (as Craig suggests) be able to get around ouster clauses, they ultimately will still not be able to give effect to the various common law heads of review without unintentionally undermining Parliamentary sovereignty—or as Forsyth (1996) put, ‘weak’ critics like Craig will necessarily be “transmuted into ‘strong’ critics”.
o Laws [(1995) PL] tries to correct this problem with common law theory by arguing that if Parliament is silent as to whether the various common law heads of review are applicable, they can be taken to be agnostic, and the courts can legitimately impose their own common law standards of good administration without undermining Parliamentary sovereignty.
♣ However, this is, as Elliott [(2000) Judicial Review and the Constitution] points out, even more artificial than suggesting that Parliament implicitly intends for the courts to apply the common law standards of good administration. This is simply because Parliament’s very job is to have views, it would surely have some on crucial matters such as the standards of good administration.
♣ Or, as Forsyth [(2000) Judicial Review and the Constitution] put it, “even the most dim-witted legislator… will, if asked, say that in legislating they intend that the powers granted should be fairly exercised”.
♣ But even if we ignore Elliott’s criticism (which is difficult given its force of logic), Laws’ and Craig’s position will still run into analytical difficulties when trying to account for the fact that unlawful administrative actions are treated by the courts as void ab initio, not voidable. Surely, if the common law were to be the basis of JR, and yet not undermine Parliamentary sovereignty, the common law grounds of JR would be unable to render a decision which fails only to abide by the common law, void ab initio.
o Therefore, can the common law accommodate the courts’ general resistance towards ouster clauses? The answer is invariably ‘yes’ and ‘no’. As mentioned, while the approach taken in Anisminic and also in Privacy International would not be out of the courts’ reach if the common law theory were to be taken as the foundation of JR, it still fails to be a coherent theory that can account for ouster clauses without undermining current orthodoxy.
Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?
Modified Ultra Vires Theory and Ouster Clauses
- What Modified Ultra Vires Theory?
o Briefly, Forsyth and Elliott, as prominent MUV theorists, have in many places ([(1996) PL], [(1999) CLJ], [(2000) Judicial Review and the Constitution], and [(2003) CLJ]) argued that the basis on which the courts can give effect to the common law standards of good administration, is on the implied assumption that Parliament is taken “to have granted an imprimatur” to the courts to apply and develop the law in this area (Forsyth, 1996).
o On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, although they are enforcing their own judicial will and standards, such enforcement is impliedly authorised by Parliament. - Can it Accommodate the Approach Described above?
o A core criticism of ultra vires theory is put forward by Craig [(1998) CLJ] who noted that this approach “does not accord with reality”. He points out the “internal tension” with the ultra vires theory created by the House of Lords’ treatment of the ouster clause in Anisminic. The issue being: how can Parliament both intend to oust JR, while implicitly intending for the courts to give effect to the rule of law which requires access to justice?
♣ Although seemingly self-contradictory as Craig suggests, his argument fails to recognise that ouster clauses contain ambiguities and can be reasonably interpreted to varying effect depending on the wording of the clause.
♣ This can be seen from the debate surrounding the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003 which included an ouster clause which lifted Lord Reid’s words from Anisminic in order to create an ouster clause which would exclude even “purported determinations”.
♣ As such, ouster clauses should not be taken, in every incarnation to be “all-out” attempts by Parliament to prevent judicial intervention; if there are ambiguities, it is certainly permissible that Parliament might have intended for it to have effect only in certain situations.
o Once we recognise that such ambiguities exist, there is no longer any internal tension. Given Elliott’s [(1998) CLJ] proposition that the courts’ job is to balance the competing considerations of Parliamentary sovereignty and the rule of law, such ambiguities gives legitimate room to the court (as it did in Anisminic) to uphold the rule of law without undermining Parliamentary sovereignty.
♣ Sales LJ’s judgment in Privacy International v Investigatory Powers Tribunal seems to support this. As discussed above, he held that the clarity of the clause would affect the court’s latitudinal ability to reduce its effect. On his view, only in the absence of such clarity, and where there are sufficient rule of law considerations pulling it to do so, should the court resist an ouster clause (which it did not in this case because the scheme of the Act concerned provided for statutory appeal).
o Therefore, the “internal tension” Craig highlights within the MUV theory is not truly a tension, but rather an unavoidable “constitutional triangulation” (Elliott [(2017) PLFE Blog]) the courts must go through when determining (given the ambiguity and/or clarity of the ouster clause) the degree to which Parliament truly intended to legislate against the principles of the rule of law, and minimise separation of powers.
Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?
Conclusion
- It is unnecessary to repeat the conclusions reached above here. It suffices to say that MUV theory seems the most able to accommodate the courts’ general resistance towards ouster clauses while still respecting the notion that Parliament is sovereign in the Diceyan sense.
- Common law theory, despite its claims of honesty and ability to somewhat accommodate the treatment of ouster clauses, cannot hope to do so while attempting to respect Parliamentary sovereignty. Given that they already run afoul with orthodoxy, it would behove common law theorists to instead adopt Allan’s more coherent view of JR, which although logical, rests on a view of Parliamentary sovereignty which has yet to receive acceptance.
Craig textbook: Dicey’s unitary democracy and ultra vires principle
o Unitary democracy (democrary is unitary in that all public power is channeled through parliament)
♣ Parliamentary sovereignty involves a second limb – parliamentary monopoly: all government power should be chanelled through Parliament for legitimation and oversight
♣ This democratic system is self-correcting (Commons reflects the will of the people and controls the executive)
o Ultra vires principle (people don’t have powers unless Parliament conferred them)
♣ Parliamentary monopoly necessitates judicial review to police its boundaries because Parliament can confer powers on Ministers but someone has to make sure they don’t transgress these powers
♣ Origins of judicial review wasn’t to serve this end – it was to assert superiority of the High Court over ‘inferior jurisdictions’ and to give remedies to unjustly treated people: thus there was much room for conflict with legislative will
♣ 19C evolution of role of judicial review more geared to the will of Parliament and ultra vires principles increasingly used to justify judicial intervention:
• Courts became more explicit that their reasoning is connected to legislation:
o Explicit reference to not extending area of jurisdiction beyond that granted by Parliament
o Conflicting cases resolved by legislative will (reasoning sometimes dubious but still useful conceptual tool to justify intervention in administrative behaviour)
• Courts became more aware of limits of judicial power within the scope of parliamentary authority (didn’t exercise judicial power when the admin was within Parliamentary power)
o This idea survived because the flexibility of legislation preserved the veneer that the court wasn’t doing anything more than applying it
Craig textbook: Implications of the UV model
o Distinction between appeal and review
♣ Appeal: court can substitute its opinion for that of the initial decision-maker, on fact and on law. The right is statutory (no inherent appellate jurisdiction)
♣ Review: concerned with validity not merit (in theory), not based on statute but inherent jurisdiction
o Model had profound effect on shape and scope of judicial intervention:
♣ Accorded centre stage to court control of administrative agencies (supremacy of ordinary law over these, and the distrustful view of government, are the focus of admin law)
♣ Generalist and not functionalist approach to admin law (all rules of a legal system should be applicable to all – RoL)
♣ Fosters judicial activism by allowing courts to reconcile anything with legislative intent, and thus achieve superiority over admin institutions
o Impact on the range of interests within ambit of admin law:
♣ “Gateways” (rules governing access to administrative decision-making etc.) barred to those who didn’t possess private rights (cause of action in contract/tort etc.)
♣ Concept got on well with judicial attitude, which protects private rights by keeping public bodies within their limits, and only protecting other rights where they exist
♣ Inherent tension: policing the boundaries of legislative intent, and protecting only the private rights conferred (eg. Legislation relating to private matters don’t confer private rights, but the court may want to police) – courts sometimes gave up its policing role in these areas and sometimes relaxed the definition of ‘rights’ and widened the gateway (this duality caused complexity in the caselaw)
o Impact on the meaning of ‘procedural rights’:
♣ Natural justice requires a right to be heard and a right to an unbiased hearing (assumes adversarial adjudication) – thus procedural rights are modelled after the ordinary courts
♣ Traditional model explains:
• Distinction between administrative and judicial proceedings in 20C caselaw
• Explains the judicial unwillingness to grant process rights in legislative contexts (reluctance to interfere when agencies are making general rules rather than individual adjudication) (difficult to apply ‘judging’ process rights to ‘legislative’ situations)
• Constricts experimentation with other types of process rights
Craig textbook: - Deficiencies of the ultra vires model
o Operates on false premises about the way democracy works (Parliament didn’t in fact control the executive – party made sure that the executive legislated)
o Traditional model was based on distrust of the administrative state and the courts’ role was to control the exercise of their power – this didn’t conform with the increasing perception of the positive contributions of agencies (people no longer assumed that the justice administered by courts was better than that of agencies)
o Traditional model was that courts would preserve legislative monopoly of Parliament by ensuring that agencies didn’t overstep their bounds – this was flawed:
♣ Difficulty of defining the sceope of an institution’s designated area (flexibility in the ultra vires concept preserved veneer that courts were only obeying the legislative mandate, but courts define things like what is “an employee”, “who is injured”, “at work” etc.)
♣ Traditional model didn’t fit with legislation intended to limit courts’ power
♣ Court changes the law over time (eg. by adding proportionality as a head of review so that agency actions have to be proportional) not because legislation asked it to
♣ Agency decisions can be attacked directly or collaterally (as a defence to, say, criminal prosecution) and in collateral attacks usually courts depend on justice because there is no legislation
♣ Change of legislative style – legislation became more open-textured and granted more discretionary powers, so the interpretation of legislative intent became harder
o Range of institutions and subject matters susceptible to judicial review – perhaps should be limited to traditional public bodies but courts have applied it to other matters eg. non-statutory exercise of power (prerogative, common law powers) and exercise of power by institutions that are not public bodies (because they don’t derive their power from statute)
o Private rights scheme (gateway to admin law only open to those with tort/contract/other private rights)
♣ If taken seriously then courts won’t police boundaries unless such rights are present
♣ Mistaken to consider such cases as private dispute
♣ Interests that aren’t rights might be important
Craig textbook: Debate about the ultra vires principle
o “ultra vires”, though indicative of action that is beyond power, doesn’t tell us why (because of legislative intent, or common law creation) it is so
o traditional model dictates that judicial review is appropriate because the courts are applying the intent of the legislature (thus legislative intent is necessary and sufficient, so that administrative law in this sense derives its legitimacy and content from the fact that the legislature intended to)
o Proponents of the common law model say that the ultra vires model is:
♣ Principle is indeterminate, unrealistic, beset by internal tensions, and unable to explain the application of public law principles to bodies that don’t derive their power from statute
♣ Principles of juidical review are developed by the courts and legislature merely provides an indication of content/limits of what constitutes judicial review (courts impose controls because they are normatively justified)
♣ Claim that judicial review is grounded in legislative intent because of parliamentary sovereignty is unfounded – the common law model speaks better to the historical foundation of judicial review
Craig textbook: Craig’s position in the debate
- Courts don’t use judicial review because of parliamentary intent, but because they’ve adopted principles that guide administrative action and interpret legislation in light of these principles
Craig textbook: meaning of common law model
o Courts should interpret legislation and admin discretion in light of fundamental rights (presumption that legislation isn’t intended to interfere with rights)
o This approach requires choice as to what counts as fundamental rights
o Alternate interpretation: courts should also articulate procedural and substantive principles (legality, procedural propriety, participation, openness….)
o Third interpretation: any view of public law must be based on some view of law and the adjudicative process (eg. Dworkin’s theory is based on law as integrity)
Craig textbook: justification for the common law model
o The constitution assigns a role to the courts and the legislator; the court’s role is to place normatively justified limits on public power
o Legislation rarely provides indication as to the content of judicial review – the latter is based on justice, rule of law etc. and if Parliament doesn’t like it, it has to make it unequivocally clear
o Which limits are normatively justified is controversial (ultra vires model doesn’t eliminate the issue, just conceals it under some elusive legislative intent)
o Rule of law – formal conception (law must be clear so as to allow people to plan their lives) doesn’t help, but the substantive conception does (Dworkin’s rights conception – no distinction between the rule of law and substantive justice, but requires the law to capture and enforce moral rights). Third conception of RoL is advocated by those unhappy with the purely formal conception but also doesn’t want the concept too similar to substantive justice, so they include some substantive rights without tying them closely to a conception of justice (but the choice of which substantive rights is included is dictated by the version of liberalism that its subscribers believe in). Fourth conception is process-based (accountability and participation preferred)
o Human Rights Act – a lot of administrative review cases are pleaded on HRA grounds, which creates a new relationship between the legislature and parliament basedo n respect for human rights.
Craig textbook: criticisms of the common law model
o Poole criticizes common law constitutionalism (political communities are ordered according to a set of fundamental values, decision making should be determined by what values shoud apply in a particular case, common law is the repository of these values, and thus judicial review should be rights oriented) because judicial review is not suited to consideration of polycentric disputes (arguments in judicial review don’t involve as much substantive rights as political debate. He prefers a view focusing on legitimacy (judicial review is justified because of the fallibility in government decision-making)
Craig textbook: response to criticisms of common law model
o Nature of CLC
♣ CLC proponents acknowledge and examine concerns with accountability and legitimacy outside of judicial review
♣ Common law doctrines for eg. crime, contract, tort etc. are undoubtedly developed with regard to assumptions about the important values that sould be applicable – why should public law not follow this?
♣ Relationship between values and established doctrine within public law is intrinsic whether or not they are rationalized as an expression of legislative intent
♣ Questions regarding what rights are fundamental is a problem, but it’s a problem not unique to public law but that permeates all areas of law – public law is not special in this regard
♣ Craig argues that adopting CLC views (judicial review based on rights) doesn’t mean that courts are always right and administration always wrong
o CLC and judicial review: participation
♣ Poole argues that judicial review is bipolar and thus ill suited to considering multiple competing viewpoints, and therefore cannot be based on such considerations. However:
Craig textbook: natural justice and hearings
- Individuals are affected by government action:
o Primary legislation
o Rulemaking
o Adjudication - Individuals don’t have formal rights to be consulted before primary legislation is enacted, by often are in fact consulted
- Process rights (right to be heard) relating to individualized decisions traditionally based on natural justice: individuals should be given adequate notice of the charge and an adequate hearing, and that the adjudicator should be unbiased
- Adequate notice of charge and adequate hearing (audi alteram partam): developed from deprivation of offices cases (you need adequate notice and a hearing before deprivation)
- Rationales for natural justice:
o Connection between hearing rights and correctness of outcome
o Process rights protect human dignity - Natural justice undermined after response to 9/11 attacks
Craig textbook: abuse of discretion
- Two grounds of judicial review:
o Use of discretionary power for purpose not allowed by legislation
o Use of power allowed by legislation but in a manner that is unreasonable, irrational or disproportionate (Lord Diplock in GCHQ – distinction between review for illegality and irrationality) - Reasonableness – two meanings
o Wednesbury (corporation empowered to grant licenses granted one subject to condition that no children under 15 be admitted; decision challenged for unreasonableness) developed two sense of unreasonableness:
♣ Umbrella sense – “unreasonableness” as a synonym of more specific grounds of attack (taking account of irrelevant considerations, acting for improper purpose/mala fide…)
♣ Substantive sense - no reasonable public body could have made it… - Types of power that can be controlled
o Statutory power – courts can’t invalidate primary legislation (PSov) though dicta suggests that exceptional cases may be otherwise (compatibility with EU law etc.)
o Prerogative – subject to judicial review (GCHQ)
o Common law discretionary power – Dicey thought prerogatives were the lawful basis of all executive action that could be done without parliamentary authority, but Blackstone thought that prerogatives were those powers that only the executives had and individuals didn’t, so powers to make contracts etc. are really common law discretionary powers. Greater uncertainty as to whether these are subject to review - Grounds of review
o Illegality – improper purpose, relevancy, bad faith
J. King ‘The instrumental value of legal accountability’
Why legal accountability?
o Rule of law
o Prevent abuse of power
o Protect rights
J. King ‘The instrumental value of legal accountability’
Law as means to an end: Strong and weak thesis
- Strong thesis of value: desirability of law is measured exclusively by reference to whether it produces desirable ends (nothing intrinsically valuable about law)
- Weak thesis: worth of law predominantly determined by the ends it achieves
J. King ‘The instrumental value of legal accountability’
Meaning of legal accountability
o Bovens offers narrow account: transparency, responsiveness, controllability etc. to a forum
o But legal accountability cannot point to the institution that administers it (courts); thus IAO these constitute legal accountability:
♣ Individual right of petition
♣ Functionally independent adjudicator who interprets and applies publically affirmed legal standards
♣ Existence of remedies
♣ Remedy is final
J. King ‘The instrumental value of legal accountability’
Prima facie benefits of legal accountability
o Focus: factual focus on narratives of particular individuals and the effect policies have on their rights
♣ BUT appellate litigation is usually about policy/abstract principles, not discrete issues and compelling narratives (Waldron)
♣ BUT litigation is myopic; judges have a poor understanding of the dynamic/knock-off effects of their decisions
o Principled reasoning: well-reasoned interpretations of public standards (logical rigour, responsiveness to submissions (treatment of counter-arguments), professional scrutiny of product (hierarchical supervision, third-party intervention, academic commentary, comparative analysis by foreign courts…), good faith attempt at objectivity, evidence assessment and fact-finding)
♣ BUT legal standards run out quickly and then judging is mostly the application of judicial preferences
♣ BUT legislators and administrators are better than courts at principled reasoning, objectivity and assessment of evidence so their decision shouldn’t be subject to judicial reversal (especially agencies)
o Constitutional authority: gleaned through historical role in protecting rule of law, and asserting individual rights (thus they have respect of political institutions and public (political responsiveness (govt takes it seriously), judicial confidence (judges will take controversial stand), courts have general jurisdiction (few holes in the regime of accountability), remedial flexibility (judges can choose between broad range of remedies)
♣ BUT these benefits are actually detriments (legal accountability cuts deeper into administration/politics than it ought to)
♣ BUT these benefits depend on an overestimation of impact of legal accountability
o Independence and impartiality
♣ BUT judges are political and are biased especially when interpreting vague norms (eg. Posner thinks that while judges won’t implement their political views directly, they do so indirectly)
o Rule interpretation competence
♣ BUT judges are poor with statutory interpretation (courts tend to be ‘overzealous’ in adhering to ‘extravagant’ notions of the RoL
o Procedural fairness competence
♣ BUT judicial conception of procedural fairness is dominated by model of the trial (Mashaw – judges don’t understand the dynamic impact created by their judgments and are powerless to reverse changes they promote that turn out to be dysfunctional)
o Participation of vulnerable/marginalized groups excluded from legislative/executive decision-making
♣ BUT people are alienated by the judicial process and have little say in hearings (Genn – courts are more stressful and alienating than resolution by agreement)
♣ BUT only the rich have reasonable access to the courts (but this isn’t always true – legal aid)
♣ BUT judicial review disrupts a more meaningful method of participation: voting
♣ BUT administrative/legislative process are better at facilitating inclusion (consultation exercises in green/white paper phases)
o Expressiveness: published decisions apply principles/policies/other values and become the fabric for public discourse (Fiss: “The judicial role is limited by the existence of constitutional values, and the function of the judiciary is to give meaning to these values” – courts provide justice, not just dispute resolution)
♣ BUT symbolic legality is of limited value (but on an ethical level symbolism and expressiveness are of some value – claimant often wants justice and not just remedies)
o Publicity
o Inter-institutional collaboration
Cane ‘Introduction to administrative law’
Purpose of administrative law
o To protect and promote certain values according to which public power ought to be exercised and the way administrators should interact with citizens (eg. procedural fairness ,consistency, rationality, openness…)
♣ Non-instrumental approach: admin law protects these values by embodying them in its rules and principles and providing appropriate accountability mechanisms for enforcing compliance
♣ Instrumental approach: admin protects values according to its impact on bureaucratic organizations and practice (admin law is only successful if it has a positive impact on these organizations)
Cane ‘Introduction to administrative law’
- Skepticisms as to effectiveness
o Courts operate much along the non-instrumental approach, but society’s conception of functions of accountability institutions is to improve the quality of public administration
o Some institutions (eg. tribunals, NHS complaint system) hear large numbers of cases while others hear very small number (eg. Administrative Court)
o Depending on aggrieved citizens to lodge complaints is less effective than systematic surveying of the decision making process
o Accountability will only be effective if public officials are well-informed of its process
o Courts look to the past, so aren’t the best placed to promote systematic improvement
Cane ‘Introduction to administrative law’
What does admin law achieve?
o Non-instrumentalist approach first asks what values are important, and the extent to which they are embraced in the institutions (this approach is taken by much judicial scholarship and judicial reasoning)
o Instrumentalist approach doesn’t really care about the values promoted, but the effect on bureaucratic organization and practice
o But achievement also depends on impact - it is probably more sensible to look elsewhere for mechanisms to improve the standard of public administration rather than try to use courts to fulfill this role
Tomkins ‘In defence of the political constitution’
Abstract
Tomkins highlights the difference between red-light and green-light theories of admin law (introduced by Harlow and Rawlings, and later amber and blue rinse views). Initial divide was based on four principal differences of view: (a) on law, (b) on the state, (c) on notions of control, (d) on liberty.
Tomkins ‘In defence of the political constitution’
RED-LIGHT theorists believe:
(1) That law is autonomous to and superior over politics;
(2) That the administrative state is something which needs to be kept in check by the law;
(3) That the preferred way of doing this is through rule-based adjudication in courts;
(4) That the goal of this project should be to enhance individual liberty where liberty is conceived as being the right to be left alone, the absence of external constraints (an idea of liberty best realised by having small government).
This tends to reflect a more politically conservative view. Paradigm example is the model of illegality where Parliament enacts legislation which confers discretion on an executive decision-maker to do x, decision-maker does y and this decision is challenged by way of judicial review resulting in court invalidating y on the ground that Parliament did not authorise decision y – from the red-light perspective, the court is merely enforcing the will or at least expectation of Parliament
Tomkins ‘In defence of the political constitution’
GREEN-LIGHT theorists believe:
(1) That law is nothing more than a sophisticated (or elitist) discourse of politics and is neither autonomous from politics nor superior to administration;
(2) That public administration is not a necessary evil to be tolerated, but a positive attribute to be welcomed;
(3) That the objective of administrative law and regulation is not merely to stop bad administrative practices, but is to encourage and facilitate good admin practices (to control administration by channelling and guiding and courts not necessarily best vehicle to realise these objectives);
(4) The goal of this project should be to enhance individual and collective liberty where liberty is conceived of as something which is, if not constituted by the state, then is at least facilitated by it, and is certainly not necessarily threatened by it (e.g. goal of the state might be to house the homeless and feed hungry and educate young, etc. and role of admin. law is to help state perform these tasks well).
More politically progressive – paradigm example of this model might be a complaint made to Parliamentary Ombudsman, resulting in Ombudsman investigating the complaint and reporting back to the government department against whom the complaint was made
Tomkins ‘In defence of the political constitution’
Historical differences between Red and Green light theories
RED LIGHT theories are rooted in 19th century Diceyan constitutional analysis and GREEN LIGHT theories are focused on questions of law’s relationship specifically to public administration.
Tomkins ‘In defence of the political constitution’
Wider debate on foundation of judicial review
- “One can see the recent argument about the constitutional foundation of judicial review as being an argument between red- and amber-light theorists.
- Those who argue that the ultra vires rule is the proper foundation of judicial review are defending a position which has close associations with red-light theory. Those who posit that the common law is the proper foundation of judicial review are making a strongly amber-light argument”
Tomkins ‘In defence of the political constitution’
AMBER-LIGHT theorists believe:
(1) (With red-light theorists) that law is both discrete from and superior to politics;
(2) That the state can successfully be limited by law, although that law ought properly to allow for the administration to enjoy a degree – albeit controlled degree – of discretionary authority;
(3) That the best way of controlling the state is through the judicial articulation and enforcement of broad principles of legality;
(4) That the goal of this project is to safeguard a particular vision of human rights.
Tomkins ‘In defence of the political constitution’
Difference of amber light theory
- this view of administrative law is “as narrowly focused on judicial remedies as are red-light theories, but it elevates the constitutional role of the judiciary considerably beyond that advocated by red-light theorists”.
- Paradigm example of theory in practice is the case in which Parl confers a broad discretionary statutory power on a decision-maker and the decision-maker exercises his discretion in such a way as to touch on what the judges subsequently hold to be a fundamental or constitutional right
- Recently and especially after the Human Rights Act 1998, there has been a “growing desire to strike out such executive decisions on the ground that they violate such supposed rights”. Sir John Laws in 1995 said that “a democratic constitution is in the end undemocratic if it gives all power to its elected government”.
Tomkins ‘In defence of the political constitution’
On Loughlin
- All three models rest on a different appreciation of the relationship between public law and politics. Significant part of LOUGHLIN’S ARGUMENT is that this legal challenge to politics is a more generally experienced manifestation of what he calls liberal-legalism (Loughlin defines the objective of liberal-legalism as to secure “the enclosure of politics within the straitjacket of law”).
- Tomkins considers whether this negative portrayal of politics is wise or even appropriate. The philosophical assumption upon which liberal-legalism is founded is that the relationship between law and politics is a polarised one.
- Tomkins seeks to show that POLITICS AND LAW ARE DEEPLY ENTWINED WITH EACH OTHER: he distinguishes distributive justice from corrective justice:
o Loughlin argues that for Aristotle distributive justice was “essentially a matter of politics” whereas corrective justice was “purely a question of law”.
o But Tomkins shows they’re related (e.g. with corrective justice, he discusses the politics of the English judiciary and the techniques and methods of interpretation and with distributive justice he looks at the welfare state).
o Tomkins: “the underlying assumption of liberal-legalism is empirically mistaken, and that law and politics are mutually dependent and complementary, and are not antagonistically polarised opposites”.
o Loughlin finishes with four main conclusions:
♣ (1) the relationship between law and politics has no fixed or settled form;
♣ (2) that each of the three basic conceptions of law (law as custom, law as command, and law as right) yields a different relationship between law and politics);
♣ (3) liberal-legalism seeks to control and limit politics by, with and through, law;
♣ (4) [most important] this liberal project is doomed to fail (Loughlin: the project of “establishing law as an objective framework of rational principles…has not been successful”). - Tomkins argues that there is more than one way of conceiving of the relationship between law and politics (e.g. might be talking about the relationship between legal and political institutions or between legal and political actors or between the academic disciplines, etc).
- “most obviously, there is no such thing as the relationship between law and politics. Law and politics collide and combine in a dazzling variety of (not always compatible) ways. It follows from this conclusion that any project which is designed to uncover the one true relationship of law to politics is futile and is doomed to fail” (although this is not Loughlin’s project, it does raise the issue of why he talks throughout his book about the relationship between law and politics).
Tomkins ‘In defence of the political constitution’
His republican solution
- an “attempt to sketch out a vision of politics which will suggest not only that politics is worthy of praise, but that it is vital that we stop attacking politics, and start celebrating its many virtues”.
- Tomkins finds it a dangerous belief that the ‘answers to all political disputes can ultimately be found in law’ – an example of the consequences of not doing so is the US Supreme Court decision in Bush v Gore [2000] where the judiciary were given the task of ascertaining who won the American presidential election from the oblique test of American constitutional law (however controversial due to the fact that the Court, when it gazed into the Constitution, seemed to see their own political preferences).
- “politics is not something which we should desire to entrap within the straitjacket of the law … Politics is something which should be celebrated, not castigated. For politics is what makes us free”.
- Suggests REPUBLICANISM as a defence of politics (ie. freedom not threatened by the political state but positively constituted by it).
o A central difference between liberal and republican constitutionalism is that while the former conceives of rights as being natural and superior to (or trumps over) the political order, the latter insists that rights and freedoms are utterly man-made and worldly (republicans hold that rights are derived from the political order, are dependent on it and not superior to it);
o republican constitutionalism does not seek to exclude law or courts from constitutional concerns but merely seeks to locate the role of law in a less all-embracing manner than does liberal-legalism. - He concludes by arguing that (despite antipathy with political engagement) “if politics is worth praising, and if it is worth rescuing from the liberal-legal onslaught, as Loughlin seems to imply despite the fact that he has thus far at least left the task to others [ie. does not provide a solution once he dismisses legal-liberalism], then it might be that politics has found a champion in republicanism. Is it time for a republic constitutionalism to come to the rescue of the ailing political constitution?”
So:
- Tomkins gives a summary of administrative law theoretical background and different schools of thought;
- identifies what liberal-legalism means, its dangers and the problems with seeing law as the solution over politics;
- and suggests the use of republicanism as a solution to defend the political constitution.
Barber, ‘The Academic Mythologians’ [2001]
Summary
- The debate as to the foundations of judicial review is important as the “passing of the Human Rights Act, the coming of devolution and the rapid expansion of judicial review have made the question of the legitimacy of judicial power more pressing than ever before”.
- AIM OF ARTICLE: to chart the complex relationship between sovereignty and judicial review within the framework of the two theories concerning the basis of judicial review (the modified ultra vires theory and the common law theory);
o he focuses almost exclusively on the arguments advanced in support of the modified ultra vires theory as the strength of the claims of the common law theorists will emerge through an examination of the weaknesses of their opponents’ contentions).
o “the common law theory is in essence a denial of the modified ultra vires theory: if the justification of judicial review cannot be extracted from the will of Parliament we must seek its legitimacy in the decision of the judges”.
Barber, ‘The Academic Mythologians’ [2001]
Common Law Theory of Judicial Review
- grounds the legitimacy of judicial review in the decisions of judges; idea that “unless Parliament clearly intends otherwise, the common law will require decision-makers to apply the principles of good administration as developed by the judges in making their decisions” (in forsyth’s words)
- broadly, this is the view advanced by Craig, Oliver, Jowell, Feldman, Sedley LJ, Laws LJ – exercise of judicial review, where not premised on the construction of the statute, is guided by and justified by the common law: judges do not need to have recourse to the implied intent of Parliament to justify striking down administrative acts – common law provides with the legitimacy needed to exercise review
- Barber: for these theorists, Parl’s will is “not an irrelevancy. Parliamentary intention is accorded both a direct and an indirect role in judicial review”
o DIRECT ROLE: when the court tests the actions of a decision-maker against the empowering statute (ie. conduct which falls outside the powers conferred by the Act, and which cannot be justified in some other way, will be struck down);
o INDIRECT ROLE: in shaping the requirements imposed by the judge from the common law (ie. though natural justice is a common law concept, not predicated on the implied will of the legislature, its application in any particular situation may be influenced by the statutory scheme within which decision-maker is operating)
Barber, ‘The Academic Mythologians’ [2001]
Modified Ultra Vires Theory of Judicial Review
- grounds the legitimacy of JR in the intention of Parliament, connecting public law with classical theories of sovereignty; Forsyth: “unless Parliament clearly indicates otherwise, it is presumed to intend that decision-makers must apply the principles of good administration drawn from the common law as developed by the judges in making their decisions”.
- The modified ultra vires theory DIFFERS from the full-bloodied ultra vires theory in that it does not claim that Parliament has willed the application of specific rules of administrative law – instead makes the (Barber) “rather more plausible argument that Parliament should be taken to have intended that judges should apply the rules of good administration that they have developed” (general intention).
- In Elliott’s re-formulation of the doctrine, “Parliament is presumed to have intended that the powers it confers are to be exercised in accordance with the rule of law, and this conception of the rule of law is flexible enough to include the principles of judicial review formulated by the judges at any point in time” (Barber).
- Barber tests the theories descriptively and normatively
Barber, ‘The Academic Mythologians’ [2001]
Modified Ultra Vires Theory of Judicial Review
Descriptive accuracy
- grounds the legitimacy of JR in the intention of Parliament, connecting public law with classical theories of sovereignty; Forsyth: “unless Parliament clearly indicates otherwise, it is presumed to intend that decision-makers must apply the principles of good administration drawn from the common law as developed by the judges in making their decisions”.
- The modified ultra vires theory DIFFERS from the full-bloodied ultra vires theory in that it does not claim that Parliament has willed the application of specific rules of administrative law – instead makes the (Barber) “rather more plausible argument that Parliament should be taken to have intended that judges should apply the rules of good administration that they have developed” (general intention).
- In Elliott’s re-formulation of the doctrine, “Parliament is presumed to have intended that the powers it confers are to be exercised in accordance with the rule of law, and this conception of the rule of law is flexible enough to include the principles of judicial review formulated by the judges at any point in time” (Barber).
- Barber tests the theories descriptively and normatively
Barber, ‘The Academic Mythologians’ [2001]
Normative arguments in favour of MUV
- Two arguments advanced in favour of the modified ultra vires doctrine: (a) from grand constitutional theory and (b) from the implications of the doctrine for substantive area of administrative law.
Barber, ‘The Academic Mythologians’ [2001]
Normative arguments in favour of MUV
(a) grand constitutional theory
- Advocates of the modified ultra vires theory claim that their theory provides a more attractive RECONCILIATION OF JR WITH PARL SOVEREIGNTY
o supporters of sovereignty believe that legal relationship of the courts and Parliament can be encapsulated in a single rule: whatever Parliament enacts as statute is law
o the “modified ultra vires may allow us to endorse both sovereignty and judicial review as coherent non-contradictory features of the British legal order”
o Barber notes, though, that “there is nothing in the modified ultra vires doctrine that requires us to accept the claims of sovereignty” - Second example of the relationship (ie. that acceptance of sovereignty entails acceptance of the modified ultra vires doctrine) that is controversial:
o Forsyth argues that “what an all-powerful Parliament does not prohibit, it must authorise either expressly or impliedly. Likewise if Parliament grants a power to a minister, that minister either acts within those powers or outside those powers”.
o Apparent Forsyth Endorsement Of Austinian Rather Than A Wadeian View Of Sovereignty:
♣ for Austin, all legal power flowed from a single source (Parliament) and thus all law gained validity from it;
♣ for Wade, it’s merely that Parl is the highest source of law within the legal order (through an Austinian view, the logical connection between sovereignty and modified ultra vires has been established).
o Criticism Of Austinian Model:
♣ “few, if any, modern scholars would now accept the Austinian model; most would accept that the courts’ articulation of the rules of private law does not depend on the tacit endorsement of the legislature” (Wade view of sovereignty merely accept that the court’s legal authority is subservient to that of the legislature).
o Elliott response:
♣ argued that an Austinian reading of Forsyth is inaccurate and argued that Forsyth is not intending to make a general statement about the source of legal power of the courts but rather a more limited comment about the consequences of the grant of a statutory power
♣ argues that when Parliament grants a power it must be presumed to have intended that the power be exercise in accordance with rule of law
o Barber Response To Elliott & Criticisms Of Common Law:
♣ “the rhetorical force of Elliott’s argument depends on the personification of Parliament” (personification is wrong as “it wrongly assumes that Parliament must have an attitude towards every legal development within the British system”
• the contention that when Parliament grants a power it must either intend it to be exercised in accordance with the principles of judicial review or must be taken not to care how the power is exercised, turns on our viewing Parliament as an individual – however “Parliament only intends what it is taken by the court to have said through the medium of statute”.
• [agreed]
♣ Elliott’s argument fails to establish a deductive link between sovereignty and the modified ultra vires doctrine: in accepting the Wadeian view of sovereignty Elliott has abandoned the strong claim that sovereignty necessitates modified ultra vires.
♣ Parl’s attitude to private law is illustrative: Barber “the relationship between sovereignty and judicial review advanced by the common law theorists is structurally identical to the relationship between, say sovereignty and the law of tort”.
• [so: comparison to private law shows that parl doesn’t manifest an attitude about every aspect of law. Craig makes this point too, see below]
Barber, ‘The Academic Mythologians’ [2001]
Normative arguments in favour of MUV
(b) Substantive Benefits to be gained from Adherence to the Modified Ultra Vires Doctrine
- one such benefit is the arg that the modified UV doctrine provides A METHOD OF CIRCUMVENTING OUSTER CLAUSES that is denied to their common law rivals (in fact they suggest that were the common law approach endorsed, judges would find it harder to overcome ouster clauses and litigants might find their access to the court blocked);
o Forsyth and Elliott use Anisminic as an example demonstrating the utility of the modified ultra vires doctrine in reducing the impact of ouster clauses (HL there argued that until the body made a decision within jurisdiction the ouster clause could not have effect). - BARBER RESPONDS by noting that the ouster clause argument seems to point to a lack of respect for the express will of Parliament (ouster clause in Anisminic was fairly explicit, the drafters of the statute plainly wanted to insulate the Foreign Compensation Commission from the attentions of the court and yet the modified ultra vires theory served to facilitate review).
- “a theorist who was genuinely concerned to protect the constitutional position of Parliament should find herself opposed to Anisminic, and should certainly not rely on it for support”.
- With regard to ouster clauses, common law theorists acknowledge and endorse the attempt by the courts to confine the impact of ouster clauses, whereas the modified ultra vires theorists attempt to justify departure from the literal meaning of the statute by relying on notions of implied intent – Barber says that “the common law theorists at least have the virtue of clarity on their side; they do not conceal judicial activism behind a fiction of parliamentary intent” [LACK OF CLARITY IN MODIFIED ULTRA VIRES POSITION].
o [I agree] - Re DEMOCRACY: “democracy lovers who might have been attracted to the theory by the primacy it appeared to give to Parliamentary intent will have been alarmed by Forsyth’s and Elliott’s treatment of ouster clauses. This demonstrates that, contrary to the modified ultra vires theorist’s claims, the doctrine does nothing to constrain the courts to the will of the legislature. Indeed, the modified ultra vires doctrine serves as a myth that empowers judicial activism. The use of implied intent diverts attention away from the political decisions made by the judges within the process of judicial review” (he says that “the fiction of ultra vires will only serve to muddle and obfuscate the law”).
- so the modified ultra vires doctrine is “an illusory constraint on judicial power. It provides a myth that conceals judicial activism. Judicial review will be better served, and the value of democracy better protected, by an overt acknowledgement of the power of the judges rather than a concealment of this power” (better to have an open acknowledgment and recognition of the importance of democracy by the judges which will provide “greater protection for Britain’s elected institutions than will the dangerous mythology of the modified ultra vires theorists”).
Barber, ‘The Academic Mythologians’ [2001]
Conclusion
- In this article, after exploring and defining the common law and modified ultra vires theories (seeking to justify judicial review), Barber criticises the latter extensively on normative grounds.
- He notes that the descriptive arguments seem weak as the legal material can be pulled both ways and also because the “nature of the modified ultra vires doctrine, as a theory about how judges should defend their decisions, is such that arguments of precedent are of less importance than when the legal status of proposed rules or principles is being considered”.
- He considers and criticises two main normative arguments justifying the modified ultra vires doctrine:
o (a) the coherence brought into the law by reconciling sovereignty and judicial review and
o (b) the substantive benefits such as a method of circumventing ouster clauses. - On the first justification, no deductive relationship could be found (common law theorists could equally well reconcile the two); Forsyth’s almost Austinian view of Parliamentary sovereignty (as opposed to a Wadeian position) was found untenable as it depended on a personification of Parliament and a reference to the analogous approach of Parliament to private law (compared with its stance on judicial review) showed that Parliament doesn’t manifest an attitude on every aspect of law;
- moreover with regards to ouster clauses, the approach of Forsyth seems to show a lack of respect for the implied will of Parliament – importantly in this respect, the example shows the modified ultra vires theory actually conceals judicial activism and enhances legal uncertainty (and doesn’t promote democracy, despite what a superficial reading might otherwise suggest).
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
Introduction
- seeks to explore the relationship between public law, political theory and legal theory.
- AIM OF ARTICLE: to argue: “what is commonly conceived to be the orthodox view of constitutional and administrative law does not represent the reality of our public law heritage”.
- TRADITIONAL VIEW of CONSTITUTIONAL LAW was one in which Parliamentary sovereignty was premised on existence of justificatory arguments drawn from legal and political theory which served to legitimate power ascription to Parliament;
- this picture was mirrored by a view of ADMINISTRATIVE LAW where courts, through common law, developed constraints on power they felt normatively justified on grounds of justice and rule of law (they “did not believe that it was necessary to find justification for this through legislative intent”).
- MODERN ORTHODOXY IS DIFFERENT: “the sovereignty of Parliament is the centrepiece of constitutional law, but normative arguments drawn from political theory play little if any role in the determination of legal sovereignty. This is reflected in a view of administrative law in which judicial review is rationalised in terms of legislative intent”.
- CENTRAL ARGUMENT: the traditional vision is superior to modern orthodoxy.
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
Traditional Vision Of Constitutional Law (Sovereignty):
- in the 18th century following the 1689 settlement, sovereignty was found to reside in the King-in-Parliament - King acting in conjunction with the Commons and Lords possessed all-embracing power
o Blackstone’s position – presented a vision of a balanced constitutional order. “For Blackstone the ‘true excellence’ of English government was that all parts operated as a mutual check upon each other. In the legislature, the people were a check on the nobility, and the nobility a check upon the people, through ‘the mutual privilege of rejecting what the other has resolved’. The King was a check upon both, which preserved the executive power from encroachments. The executive power itself was checked and kept within due bounds by the two houses” – focus on BALANCE and EQUILIBRIUM). - In the 19th century, Dicey found that sovereign power did exist and it was possessed by Parliament.
o The essence of the argument was that a Parliament, duly elected on the extended franchise, represented the most authoritative expression of the will of the nation and the Parliament thereby elected should therefore be able to carry out any action.
o Constitutional protections against the exercise of parliamentary power were not thus required since, Dicey says, “the permanent wishes of the representative portion of Parliament can hardly in the long run differ from the wishes of the English people … that which the majority of the House of Commons commands, the majority of English people usually desire”.
o CRAIG RESPONDS though by noting that Parliament never probably operated in this self-correcting way and this vision of the relationship between electors, Parliament and executive certainly does not accord with present reality.
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
Modern Vision:
- Division between the traditionalists such as Wade and new view proponents such as Jennings/Heuston/Marshall.
- Wade: there could be no substantive limits placed on a Parliament (no Act of the sovereign legislature could be judicially invalidated and was always open to the legislature to repeal any previous legislation and thus no Parliament could bind its successors (so where there was conflict between the two acts of Parliament, the latter repealed the former); the ultimate decision as to whether the top rule had altered was for the courts, since they could decide what was a valid Act of Parliament.
- New View argued that manner and form provisions enacted in a particular statute would be binding (a later statute dealing with the same subject manner could only alter the earlier statute if passed in accordance with the provisions of that earlier statute.
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
Legal Theory (Positivist & Non-Positivist Perspectives):
- a positivist position, which holds that the rule of recognition is the top rule of the system from which all other rules derive their validity, has similarities with and can be drawn on when looking at the legal conception of sovereignty.
- Craig looks at the internal and external perspectives and how the fact that Parliament has exerted power in the ways identified by Dicey constitutes (in Hartian terms) merely an external perspective on the rule of recognition (an observable statement of fact which could be made by one who had no attachment to the rule as such at all) – internal perspective entails a critical reflective attitude to certain patterns of behaviour which manifests itself in demands for conformity (and in an acknowledgment that such criticism is legitimate and justified).
- Craig says that in democratic societies, the link between the rule of recognition and political theory is closer within positivism than might have been thought (eg because it may be impossible to disaggregate the reasons for the internal endorsement of the rule from the legal rule itself).
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
Non-Positivist Perspective & Dworkin’s Theory Of Adjudication:
- based on the idea of law as integrity (propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice).
- Ideas of ‘fit’ and ‘justification’ are central to the concept of law as integrity: former provides a “rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible at all”.
- Application of Dworkin’s theory to sovereignty depends on how we frame the issue. We can postulate three possible interpretations but the most likely to meet the criteria is that Parliament has sovereign power provided that there is the requisite normative justification for that power;
o Craig: this interpretation does ‘fit’ the discussion of our constitutional history set out above and the test of justification (although he repeats that adoption of this view does not necessarily lead to the conclusion that there should be constitutional review of statutes policed by the courts).
Craig, ‘Public Law, Political Theory and Legal Theory’ [2000]
3 strands to his argument in favour of common law
(1) Historically, courts didn’t see review in terms of legislative intent- reasoned in the manner argued for by the common law theorists
- history of JR was inextricably bound up with the development of remedies as opposed to the creation of new heads of review
- there was no general theory of jurisdiction provided by Coke, Blackstone or Hale and it was left to individual courts to reach decisions which they felt expressed the appropriate standard to be imposed pursuant to the common law power of JR
- the intent of the legislature did not provide any real guidance as to for example, the scope of jurisdictional error or the types of control which should exist over the exercise of discretion
(2) This approach to JR was natural, and unsurprising, given the more general perception of the common law and its relation to statute prevailing in the 17th, 18th and much of 19th centuries.
- A number of lawyers regarded the common law as the immediate source and measure of the authority of both King and Parliament in the period between James I and the Restoration;
- Coke and other lawyers disapproved of Parliament changing the common law because they believed that the wisdom of a single Parliament was unlikely to surpass the wisdom embodied in laws shaped by the accumulated experience of many generations.
- This is important for the discussion of administrative law foundations as it shows that it did not mean that Parliament was regarded as having a monopoly on legal change and it is also did not mean that “jurists believed that they had to locate the development of principles of judicial review in terms of legislative intent”.
(3) Relationship between public and private law:
- the idea represented as traditional orthodoxy, that review had to be legitimated through legislative intent, is further undermined by the fact that the courts did not reason on the basis of any rigid dichotomy between public and private law
- he’s not here making the misleading statement often made that there was no administrative law until the mid-20th century but instead saying that “there was no sense that legislative intent had to be invoked for bodies deriving their power from statute, while controls on others could be legitimated through the common law itself”.
Arg:
- in light of constitutional history, it is clear that “the rationalisation of judicial review based on the ultra vires model and legislative intent does not capture the traditional understanding of judicial review, even if it is often cast in this manner”
- legislative intent models are felt by the proponents to be necessary since otherwise the courts would be engaged in a strong challenge to sovereignty.
- the virtues of unwritten constitutions are well known (flexible and can be response to new forces); however they can mask significant changes in patterns of thought.
- concludes by noting that “the dangers of assuming that modern rationalisations represent an accurate picture of legal history are equally apparent in the context of administrative law and judicial review”.
