Foundations of Judicial Review

Question 1

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

Answer 1

• 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.

Question 2

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

Answer 2

• 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.

Question 3

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

Answer 3

• 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”.

Question 4

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

Answer 4

• 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.

Question 5

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

Answer 5

• 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.

Question 6

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

Answer 6

• 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”.

Question 7

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

Answer 7

• 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.

Question 8

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)

Answer 8

• 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.

Question 9

Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?

Introduction

Answer 9

• 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.

Question 10

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?

Answer 10

• 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.

Question 11

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

Answer 11

• 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.

Question 12

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

Answer 12

• 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.

Question 13

Can any of the theories of the foundations of judicial review explain the courts’ general resistance to ouster clauses?

Conclusion

Answer 13

• 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.

Question 14

Craig textbook: Dicey’s unitary democracy and ultra vires principle

Answer 14

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

Question 15

Craig textbook: Implications of the UV model

Answer 15

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

Question 16

Craig textbook: - Deficiencies of the ultra vires model

Answer 16

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

Question 17

Craig textbook: Debate about the ultra vires principle

Answer 17

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

Question 18

Craig textbook: Craig’s position in the debate

Answer 18

• 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

Question 19

Craig textbook: meaning of common law model

Answer 19

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)

Question 20

Craig textbook: justification for the common law model

Answer 20

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.

Question 21

Craig textbook: criticisms of the common law model

Answer 21

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)

Question 22

Craig textbook: response to criticisms of common law model

Answer 22

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:

Question 23

Craig textbook: natural justice and hearings

Answer 23

• 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

Question 24

Craig textbook: abuse of discretion

Answer 24

• 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

Question 25

J. King 'The instrumental value of legal accountability' Why legal accountability?

Answer 25

o Rule of law o Prevent abuse of power o Protect rights

Question 26

J. King 'The instrumental value of legal accountability' Law as means to an end: Strong and weak thesis

Answer 26

- 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

Question 27

J. King 'The instrumental value of legal accountability' Meaning of legal accountability

Answer 27

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

Question 28

J. King 'The instrumental value of legal accountability' Prima facie benefits of legal accountability

Answer 28

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

Question 29

Cane 'Introduction to administrative law' Purpose of administrative law

Answer 29

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)

Question 30

Cane 'Introduction to administrative law' - Skepticisms as to effectiveness

Answer 30

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

Question 31

Cane 'Introduction to administrative law' What does admin law achieve?

Answer 31

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

Question 32

Tomkins 'In defence of the political constitution' Abstract

Answer 32

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.

Question 33

Tomkins 'In defence of the political constitution' RED-LIGHT theorists believe:

Answer 33

(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

Question 34

Tomkins 'In defence of the political constitution' GREEN-LIGHT theorists believe:

Answer 34

(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

Question 35

Tomkins 'In defence of the political constitution' Historical differences between Red and Green light theories

Answer 35

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.

Question 36

Tomkins 'In defence of the political constitution' | Wider debate on foundation of judicial review

Answer 36

* “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”

Question 37

Tomkins 'In defence of the political constitution' AMBER-LIGHT theorists believe:

Answer 37

(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.

Question 38

Tomkins 'In defence of the political constitution' Difference of amber light theory

Answer 38

- 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”.

Question 39

Tomkins 'In defence of the political constitution' On Loughlin

Answer 39

- 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).

Question 40

Tomkins 'In defence of the political constitution' His republican solution

Answer 40

- 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.

Question 41

Barber, ‘The Academic Mythologians’ [2001] Summary

Answer 41

- 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”.

Question 42

Barber, ‘The Academic Mythologians’ [2001] Common Law Theory of Judicial Review

Answer 42

- 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)

Question 43

Barber, ‘The Academic Mythologians’ [2001] Modified Ultra Vires Theory of Judicial Review

Answer 43

- 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

Question 44

Barber, ‘The Academic Mythologians’ [2001] Modified Ultra Vires Theory of Judicial Review Descriptive accuracy

Answer 44

- 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

Question 45

Barber, ‘The Academic Mythologians’ [2001] Normative arguments in favour of MUV

Answer 45

- 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.

Question 46

Barber, ‘The Academic Mythologians’ [2001] Normative arguments in favour of MUV (a) grand constitutional theory

Answer 46

- 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]

Question 47

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

Answer 47

- 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”).

Question 48

Barber, ‘The Academic Mythologians’ [2001] Conclusion

Answer 48

- 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).

Question 49

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] Introduction

Answer 49

- 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.

Question 50

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] Traditional Vision Of Constitutional Law (Sovereignty):

Answer 50

- 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.

Question 51

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] Modern Vision:

Answer 51

- 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.

Question 52

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] Legal Theory (Positivist & Non-Positivist Perspectives):

Answer 52

- 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).

Question 53

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] Non-Positivist Perspective & Dworkin’s Theory Of Adjudication:

Answer 53

- 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).

Question 54

Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] 3 strands to his argument in favour of common law

Answer 54

(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”.

Question 55

Laws, ‘Law and Democracy’ [1995] Introduction

Answer 55

- aim of the article is to deal with what Laws conceives to be the intricate relationship between the ideal of democracy and the ideal of law in 20th century England. - argues that “a democratic constitution is in the end undemocratic if it gives all power to its elected government; at the same time democratic institutions are a necessary – though not sufficient – condition for the establishment of fundamental freedoms”. - Laws is interested in looking at the difference between those interests in a decent society whose service and protection is distinctly the function of the law (especially our public law) and those which distinctly lie within the province of the democratically elected legislature and government.

Question 56

Laws, ‘Law and Democracy’ [1995] Judges and Politics

Answer 56

- First section concerns whether judges should enter into political issues: deeper question is whether good judicial decisions are themselves fuelled by ideals which are not morally neutral, but which represent ethical principles about how the state should be run, and in that sense may be said to be political principles. - When noting Lord Diplock’s judicial review criterion of illegality, Laws says that it is plain enough “no subordinate body may exceed the express bounds of its statutory power”. “the well-known limits upon the jurisdiction have nothing whatever to do with problems about the judges embarking upon political disputes. They are simply a function of the rule of law: the judges are no more than anyone else entitled to exercise power which legally belongs to another”.

Question 57

Laws, ‘Law and Democracy’ [1995] Judicial Creativity and Political Ideals

Answer 57

- Criticism of ultra vires position: principles such as irrationality and Wednesbury unreasonableness and others of modern administrative law were not “suddenly interwoven into the legislature’s intentions in the 1960s and 70s and onwards, in which period they have been articulated and enforced by the courts. They are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig-leaf to cover their true origins. We do not need the fig-leaf anymore” - However his purpose is to ask question: judicial creations as they are, should they be regarded as political ideals? o In one sense they are: they are not morally neutral but prescriptive (i.e. they are about how powerful people ought to behave). He notes that “if these public law rules may be described as political in nature, there is no question of the judges repenting them on such grounds”. - Laws makes the following propositions: (1) Substantive principles of judicial review are judge-made, owing neither their content nor their authority as law to the legislature; (2) Yet they confine the scope within which discretionary decisions may be taken under statute, even though on a bare reading of the Act the power conferred would have a greater reach (3) These principles of judicial review are not morally colourless and far from it – they constitute ethical ideals as to the virtuous conduct of the state’s affairs; “it is essential to my theme (and anyway important) to recognise the moral force of the basis on which control of public power is effected by the unelected judges” (4) The established limits of the jurisdiction are in essence set by the very same ideal which has fuelled its growth: that all public bodies should keep within the power which the law accords to them. Neither these limits, nor any other aspect of our public law as it presently stands, can usefully be explained by reference to lines of demarcation drawn on political grounds. - Laws says that the question of whether these judicial ideals ought to be described as in their nature political is conceptually confusing and that in reality what he is in search of is a rigorous appraisal of the true distinctions between judicial and elective power. - True distinctions between judicial and elective power cannot be arrived at by a merely factual account of what the judges do and what governments or Parliaments (or local authorities) do (because of the nature of an unwritten constitution - several flexible rules and norms which can’t be ascertained by reference to the pages of a book whose authority is unquestioned). - Laws argues that “the democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms … The byword of every tyrant is ‘My word is law’; a democratic assembly having sovereign power beyond the reach of curtailment or review may make just such an assertion, and its elective base cannot immunise it from playing the tyrant’s role”. - Laws’ argument is that it is a condition of democracy’s preservation that the power of a democratically elected government – or Parliament – be not absolute (institution of free elections, like fundamental individual rights, has to be vindicated by a higher-order law). - “my thesis is that the citizen’s democratic rights go hand in hand with other fundamental rights; the latter, certainly, may in reality be more imaginably at risk, in any given set of political circumstances, than the former. The point is that both are or should be off limits for our elected representatives”.

Question 58

Laws, ‘Law and Democracy’ [1995] Separation of Powers in the British Constitution

Answer 58

- “it is characteristic of the intellectual insouciance which marks our unwritten constitution that though higher-order law is an imperative required for the establishment of institutions to govern a free people, not only is it nowhere to be found, but its emphatic denial, in the shape of the absolute sovereignty of Parliament, is actually represented by our traditional writers such as Dicey as a constitutional cornerstone”. Laws notes that despite the fact that Parliament and the Legislature is sovereign: “in the end, for most of the time, the Executive can bend Parliament to its will”. - “the power which is generally enjoyed by the Executive over the Legislature is so great that it loosens the ties between the people and their rulers. The benign force of democracy is diminished. While it rules, the Executive enjoys great automatic power which is only indirectly vouchsafed by the elective process. But … even if Parliament enjoyed a true hegemony over the Executive, still its rule should not in the last resort be absolute: still a higher-order law would be needed for the entrenchment of constitutional rights and the protection of democracy itself” - Laws identifies the difference between JUDICIAL and ELECTIVE POWER: o Elective power consists in authority to make decisions of policy within the remit given by the electorate. “ultimate sovereignty rests, in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so”. o “for its part judicial power in the last resort rests in the guarantee that this framework will be vindicated. It consists in the assurance that, however great the democratic margin of appreciation (to use Strasbourg’s language) that must be accorded to the elected arm of the state, the bedrock of pluralism will be maintained”.

Question 59

Forsyth, ‘Of Fig Leaves and Fairy Tales’ [1996] Introduction

Answer 59

- The doctrine of ultra vires has been aptly described by Sir William Wade as “the central principle of administrative law” however it has been subject to some criticism in recent years (Lord Woolf has described it as a “fairy tale” and Laws a “fig leaf” – criticism by academics and judges). - Major grounds of criticism have been: o (1) that the doctrine is artificial in that the legislature could never have formed an intention, express or implied, on the many subtle and various principles which form modern law of judicial review; o (2) concept of ultra vires can simply play no part in determining whether, as is clearly the case, non-statutory bodies which exercise no legal powers at all are subject to judicial review. - Forsyth aims to defend the orthodox doctrine of ultra vires from these criticisms and to show that it remains vital to the developed law of JR. He seeks to show that the role of the doctrine is to provide the necessary constitutional underpinning for the greater part (albeit not whole) of judicial review – also argues that to abandon the doctrine implies the abandonment of legislative supremacy. - R v Lord President of the Privy Council, ex p Page, Lord Browne-Wilkinson: o “The fundamental principle [of JR] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases … this intervention … is based on the proposition that such powers have been conferred on the decision-maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonably. If the decision-maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully”.

Question 60

Forsyth, ‘Of Fig Leaves and Fairy Tales’ [1996] Argument

Answer 60

o note that the orthodox approach to ultra vires is the only possible basis for judicial review but just that “for reasons of principle and pragmatism, it is not for the judges, acting on their own motion, to abolish ultra vires”. o argues that prior to a fresh constitutional settlement, “the sovereignty of Parliament … remains a fundamental element of the constitutional order; and it is not for the judges acting on their own motion to try to change that”. o The most fundamental reason is that in a democratic polity, change in the constitutional order must (or should) come about through the democratic process: “It may very well be a good thing if the judges were to have the task of protecting democracy and fundamental rights against the legislature, but they should be given that task by the people; it is unseemly that they should seize it themselves”.

Question 61

Forsyth, ‘Of Fig Leaves and Fairy Tales’ [1996] - WEAK criticisms of the ultra vires doctrine:

Answer 61

o WEAK critics either call for or assert that it is the common law rather than the implied will of the legislature, that requires that decisions should be fairly and reasonably made (thus when the judicial review court quashes a decision of a public body, it is vindicating the common law, not heeding the will of the legislature). • The critique is focused on the constitutional justification for judicial review o If UV was abolished, ouster clauses would be much more effective at excluding judicial review than they are now [nb – see barber] ♣ In Staatspresident (SA), the State President made regulations protected by an ouster clause that provided that ‘no court shall be competent to enquire into or give judgement on the validity of any proclamation under s. 3 of the Act’. On Anisminic principles it was clear that if the regulations were UV, JR would not be precluded by the ouster clause. • The Court held that the regulations were protected from review by the ouster clause and the doctrine of UV was rejected. The regulations were intra vires and the ouster clause was effective to shield them from judicial challenge. o If UV was abolished, the court would indirectly challenge legislative supremacy ♣ What an all-powerful Parliament does not prohibit, it must authorise either expressly or impliedly • If Parliament grants power to a minister, the minister either acts within those powers or outside those powers. There is no grey area between authorisation and prohibition or empowerment and the denial of power. • If Parliament grants vague regulations, the regulations cannot be challenged without challenging Parliament’s authority to authorise the regulations ♣ To abandon ultra vires is to challenge the supremacy of Parliament • The weak criticisms can be reconciled with orthodoxy by recognising that, as the legislature took no steps to overturn the extension and development of judicial review by judges, it may be taken to have given tacit approval to the development of the principle of judicial review by the judiciary (ex p Page) o [hm. I don’t think this is great. It’s back-to-front reasoning. Fig-leaf stuff] • There are advantages to UV: the judges no longer challenge legislative supremacy, the effectiveness of ouster clauses remains attenuated and there is a sound constitutional basis for judicial review o [see barber, punctures this stuff, esp ouster clauses]

Question 62

Forsyth, ‘Of Fig Leaves and Fairy Tales’ [1996] STRONG critics (Laws)

Answer 62

use the deficiencies of the ultra vires doctrine to challenge the legislative supremacy of Parliament itself ♣ they assert that the courts enjoy a power which, although it should be sparingly used in exceptional cases, enables them to strike down Parliamentary statutes – ♣ Parliament in other words has lost its sovereignty and judges may in appropriate circumstances pronounces upon the validity of Acts of Parliament (although an attack on the sovereignty of Parliament may appear to be unrelated to criticism of the ultra vires doctrine, however the abolition of parliamentary sovereignty implies that the final word on the lawfulness of administrative action is not to be found in the implied intent of the legislature. - Also note: the concept of UV can play no part in deciding whether non-statutory bodies which exercise no legal powers are subject to judicial review (ex p Datafin) o The recognition that the common law regulation of monopolies is the underlying basis of the extension of JR may extend the boundaries of the JR of non-statutory bodies o The UV doctrine has never been the sole justification for JR. ♣ The recognition of a common law basis for part of JR does not challenge legislative supremacy because it is always open to the legislature to regulate the position - The views of the HL remain unhesitatingly orthodox (Lord B-W, ex p Page)

Question 63

Elliott, ’The Ultra Vires Doctrine in a Constitutional Setting: still the central principle of administrative law’ (1999) (reproduced as ch.5 of Forsyth, Judicial Review)

Answer 63

• The orthodox theory states that the principles of good administration which the courts apply to secure fairness and rationality in public decision-making amounts to no more than judicial enforcement of legislative intention (Wade) − The considerations of parliamentary sovereignty dictate that JR should lie on the sole ground that administrative action is UV − The principles developed by the judiciary come from unwritten legislative intention • The opponents of the traditional approach/common law theorists argue that the values which the courts vindicate through JR are not, and do not need to be, related to legislative intention (Oliver, Laws, Craig) − The administrative law embodies a series of principles that are the product of judicial creativity + founded in common law • The middle ground (Forsyth) is a new approach to the justification of JR which embraces the best features of the two contrasting models (Elliott) − Any attempt to choose between legislative intention and the judicial endeavour as the real basis of the supervisory jurisdiction is futile − The will of Parliament + the creativity of judges have important roles to play but the true foundations of JR can only be appreciated when this branch of public law is located within its broader constitutional setting ♣ The broader constitutional principles i.e. rule of law and separation of powers are a more convincing basis for JR • The courts’ public law jurisprudence is based on the vindication of the rule of law − The dual propositions must be recognised: Parliament ought to be taken to intend that the rule of law should be upheld and the required limits of discretionary power is a task left to the judgment of the courts The UV principle provides a conceptual basis for JR which comes to terms with the existing constitutional order and the limitations imposed by the constitutional framework

Question 64

Is it necessary to justify judicial review at all? (YES) Introduction

Answer 64

− Laws argues that the only true limits on the powers of other branches of government are those which the courts choose to recognise ♣ This approach is inconsistent with any legal duty of judicial fidelity to the legislative will of Parliament rejects constitutional theory of sovereignty on which UV is based + renders otiose any attempt to justify judicial review ♣ The approach would state that the court reviews what it chooses to review or consist in a description of the nature and extent of judicial review in practice • This theory questions the relevance of the orthodox justification for judicial review and the modern theories based on the rule of law and the separation of powers − The unwritten constitution assigns and limits the powers of the different branches of government and the power of the courts is not unlimited ♣ The courts have the power which the constitutional order says they have + derive their authority from the rule of law ♣ The claim of judicial power must be scrutinised and evaluated against the delimitation of governmental functions prescribed by the constitutional order

Question 65

Is it necessary to justify judicial review at all? (YES) How do we justify judicial review?

Answer 65

− Craig argues that the principles of good administration are part of the common law ♣ The common law provides a foundation for all types of judicial review ♣ There is no direct connection between legislative intention (or legislative silence) and the grounds of review − Forsyth argues that the constitutional logic dictates that JR of statutory power must be related to the sovereign will of Parliament ♣ The Parliament grants executive power and it is either a condition that the decision-maker must act consistently with the requirements of good administration or it is not ♣ The court should not impose obligations on executive power created free from a requirement to act fairly and rationally • The common law prohibition on unfair or unreasonable decisions would cut across the broader statutory power to make such decisions • Laws and Craig would disagree fundamentally with this reasoning o Laws argues that ‘I do not accept that ‘what an all-powerful Parliament does not prohibit, it must authorise either expressly or impliedly’. The absence of legislative prohibition does not entail the existence of a legislative permission. Forsyth mistakenly assumes that because Parliament can authorise or prohibit anything, all authorities and prohibitions must come from Parliament. This is a non sequitur because it neglects the ‘undistributed middle’. X and Y may be opposites (praise and blame) but they do not cover the whole field; there might be Z which involves neither. Forsyth mistakes the nature of legislative supremacy, which is trumps, not all four suits; specific, not wall-to-wall’.

Question 66

Is it necessary to justify judicial review at all? (YES) • Addresses Laws’ criticisms

Answer 66

A. The nature and consequences of legislative supremacy ♣ The consequences of sovereignty identified by Forsyth are modest: • Where there is no statutory framework, the courts regulate the use of de facto power but once this is regulated by a statutory framework, the limits on the power must relate to the scope granted by Parliament (‘occupied the field’) • Where there is a statutory framework, it is inappropriate for the courts to impose limits different from those in the grant of the power ♣ The propositions do not ascribe to a ‘wall-to-wall’ sovereignty to the legislation in the sense that ‘all authorities and prohibitions must come from the legislature B. The argument of logic: the ‘undistributed middle’ creates the opportunity for the common law to intervene and supply the duty of fairness; it is filling a gap where no intention exists ♣ There are five conceptions of the relevance of legislative intention to judicial review: 1. When Parliament confers a discretionary power, it actually intends that there should be no implied limits on that power o This is absurd because it cannot be assumed that Parliament would wish to create administrative power free from any duties to exercise it fairly, rationally, in conformity with the purpose of the legislative scheme + in accordance with other principles which limit executive discretion 2. When Parliament confers a discretionary power, it intends every detail of the principles of good administration to apply + there is a direct relation between the grounds of review and legislative intention o This is absurd because it is unrealistic to suggest that Parliament possesses a specific intention on the requirements of good administration 3. Parliament has no choice but to grant discretionary power subject to the condition that it must be exercised in accordance with rules of good administration + legislative intention/common law principles are irrelevant o This approach could only operate if Parliament was incapable of modifying or suspending the operation of the principles of good administration but parliamentary sovereignty has not been eradicated on such a grand scale 4. When Parliament confers a power, it must follow that it either grants or withholds the authority to act unfairly and reasonably (Forsyth) o There is a difficult relationship between legislative intention and the rules of good administration and to resolve this, it is necessary to have recourse to the constitutional setting (the rule of law) ♣ It is reasonable to assume that Parliament intends to legislate in conformity with the rule of law margin of freedom granted to judges to set the precise limits of administrative power (judicial creativity) o The relationship between intention and review is indirect (UV says direct) 5. There is no relationship between parliamentary intention and the grounds of review (Laws) but the common law supplies principles of good administration. o This view implies that there is no legislative intention and that Parliament is unconcerned about the use of governmental power which it creates this is absurd o The logical basis of this model has been challenged (above)

Question 67

Is it necessary to justify judicial review at all? (YES) • The constitutional setting for the ultra vires doctrine: overcoming the shortcoming of the traditional mode

Answer 67

A. The development of administrative law over time ♣ Craig observes that ‘The constraints which exist on the exercise of discretionary power are not static. The developments cannot be explained by reference to legislative intent’ ♣ The modified UV theory recognises the creativity of the judicial function • The courts decide how discretionary power should be limited in order to ensure that is exercise complies with the requirements of the rule of law • The developments relate to the evolution of the content of the constitutional principle of the rule of law B. Preclusive clauses ♣ Craig observes that ‘If the rationale for judicial review is that the courts are implementing legislative intent this leads to difficulty where the legislature has stated in clear terms that it does not wish the courts to intervene with decisions made by the agency’ (Anisminic cannot be accommodated) ♣ The ouster clause presents a tension between the literal meaning of the provision and the construction that Parliament intends to legislate in conformity with the rule of law • There is a similar situation with EC law + the HRA ♣ The judicial attitude to ouster clauses and the view of the UV doctrine come together: the courts’ jurisprudence springs from the interpretation of legislation within a framework based firmly on the rule of law • The approach will not always make it possible for the courts to construe ouster provisions to preserve some role for JR C. Judicial review of non-statutory power [ie datafin stuff I think] ♣ Craig observes that ‘the judicial review of a non-statutory power cannot be rationalised through the idea that the courts are delineating the boundaries of the Parliament’s intent’ ♣ The modified UV theory recognises that the whole of judicial review rests on the rule of law + outside statutory power, the rule of law can be effectuated directly • It applies identical principles of good administration to all types of government power • It does not seek to justify judicial review of statutory power purely in terms of legislative delegation + it does not require the justifications for judicial review of different types of power to be separated

Question 68

Forsyth, Heat and Light: a plea for reconcilitation’ (ch.18 of Forsyth, Judicial Review) Introduction

Answer 68

• There is some truth in the contention that the MUV doctrine is without content in that it provides little guidance to the actual reach or intensity of judicial review but these defects should not be exaggerated and allowed to obscure its strengths − The MUV doctrine provides a firm constitutional foundation for judicial review − The MUV doctrine incorporates judicial creativity into the orthodox constitutional structure of judicial subservience to statute The MUV doctrine is the synthesis of the orthodox and common law position

Question 69

Forsyth, Heat and Light: a plea for reconcilitation’ (ch.18 of Forsyth, Judicial Review) • There have been two developments of the debate:

Answer 69

1. The ‘strong critics’ have disappeared and statements challenging parliamentary sovereignty have ceased 2. There is agreement on the common law basis of judicial review of non-statutory bodies

Question 70

Forsyth, Heat and Light: a plea for reconcilitation’ (ch.18 of Forsyth, Judicial Review) • There is still a distinction between weak critics and MUV:

Answer 70

1. The position of the weak critics: 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. 2. The position of the MUV theorists: Unless Parliament clear indicates otherwise, it is presumed to intend that decision-makers must apply the principles of good administration drawn from the common law as developed b the judges in making their decisions.

Question 71

Forsyth, Heat and Light: a plea for reconcilitation’ (ch.18 of Forsyth, Judicial Review) • The MUV position reconciles the creativity of the common law and the supremacy of statute

Answer 71

1. The MUV doctrine is the law ♣ There are four decisions of the HL that have favoured the MUV: R v Home Secretary ex p Pierson (Lord Steyn at 518, Lord Browne-Wilkinson at 575), Boddington v British Transport Police (Lord Steyn at 662D + 655G, Lord Browne-Wilkinson at 655D) ♣ There is judicial support for the doctrine 2. The constitutional justification of judicial review is provided by the principle of UV ♣ Judicial review implies no challenge to the democratic legislation because it is the legislature’s will that is being upheld • The cases cited by Craig (which he claims did not have regard to the intent of the legislation in imposing standards) antedate the development of our sovereign Parliament in its modern form ♣ The judge in a controversial case will invariably spell out the relationship of his conclusions to the relevant statute ♣ The judge is the guardian of the existing constitutional order 3. The abandonment of ultra vires is a challenge to parliamentary sovereignty ♣ Laws argued that ‘what an all-powerful Parliament does not prohibit, it must authorise expressly or impliedly. Likewise if Parliament grants powers to a minister, that minister either acts within those powers or outside those powers. There is no grey area between authorisation and prohibition or between empowerment and the denial of power. Laws argues that Forsyth neglects the ‘undistributed middle’ and although Parliament might not intend the application of the procedural justice this does not mean that Parliament has prohibited it. The common law (the undistributed middle) might still require its observance • Elliott argues that this approach leads to the imputation of unrealistic intentions to Parliament + requires that Parliament would be indifferent to the fairness of the exercise of power • Laws neglects ‘mutual exclusivity’. The concepts of ultra vires and intra vires are mutually exclusive: a decision maker either acts within or outside his powers and there is no middle ground. ♣ This position would result in the common law imposing an additional requirement for validity (weak critics become strong critics) • Craig argues that (1) the imposition of civil liability on public bodies (i.e. contractual or tortious) is not based on the legislative intent that they should be bound (2) the statutory intention is not the ‘central principle’ in private law statutes that accord discretion to a private party o On (1), the rules are pre-existing and not the result of legislative intention. The statute is relevant to the application of the ordinary rules of civil liability i.e. the application of the law of contract to the contracts of a statutory body may be implied from a statute, but the existence of the law of contact is not governed by statute. o On (2), there is a distinction between a statute in private law and in public law. ♣ In private law, there is a complex web of pre-existing relationships between pre-existing persons founded on the common law. The central principles are found in the rules governing those relationships, not the statute. ♣ In public law, the bodies would not exist but for the statute, exercising powers that would not exist but for the statute. The statute will have created the entire relationship between the public body and the citizen. • The MUV doctrine does not argue that legislative intent is the central principle of a particular area of the law. The argument is over whether the ultra vires doctrine is the central principle of administrative law. o The logic of MUV doctrine only applies where there is some question of the limits of power o The MUV doctrine recognises common law principles relevant to administrative law that are not derived from legislative intent. The implied legislative intent simply authorises the application of the principles in the circumstances. 4. The consequences of abandonment for administrative law ♣ The ouster clauses would be rendered effective to preclude judicial review • [surely they wouldn’t? since CL theory says that where there is an expression of Parl’s will, that will be respected] ♣ The conceptual foundations of judicial review would be undermined • [not if you see JR as developing out of common law] ♣ The central aspects of planning law would be removed (s. 288 TCPA)

Question 72

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Introduction

Answer 72

- looks at modified ultra vires theory - its proponents claim it can and must be the foundation of judicial review, for so long as we retain the conception of parliamentary sovereignty - AIM OF ARTICLE: to challenge the position: “it will be argued that the common law model of judicial review entails no conflict with the sovereignty of Parliament, expresses the proper relationship between the rule of law and sovereignty and best captures the practice of the courts”.

Question 73

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) The Story Thus Far: The Contending Models TRADITIONAL ULTRA VIRES MODEL OR SPECIFIC LEGISLATIVE INTENT MODEL

Answer 73

- based on the assumption that judicial review was legitimated on the ground that the courts were applying the intent of the legislature (courts’ function was to police the boundaries stipulated by Parliament). - Ultra vires principle regarded as both necessary (any ground of judicial review had to fit into the ultra vires doctrine in order for it to be acceptable) and sufficient (if a ground of review could be fitted into the ultra vires principle it obviated the need for further independent inquiry). - Doctrines of administrative law derive legitimacy and content from fact that legislature intended them to apply in particular way in particular statutory context.

Question 74

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) COMMON LAW MODEL OF ILLEGALITY

Answer 74

Ð challenged assumptions: argued ultra vires principle was indeterminate, unrealistic, beset by internal tensions and unable to explain application of public law principles to those bodies which did not derive their power from statute. Ð Proponents of the common law model question how far these rules can be explained by reference to legislative intent and argue that in reality, the principles of judicial review are developed by the courts (they are the creation of the common law; the legislature will rarely provide any indications as to the content and limits of what constitutes judicial review). Ð JUDICIAL PROCESS is that when legislation is passed, courts will impose controls which constitute judicial review which they believe are normatively justified on the grounds of justice, rule of law, etc - if Parliament does manifest a specific intent as to the grounds of review, then the courts will naturally obey this in just the same way as they will obey such intent in other areas where the primary obligations themselves are the creation of the common law (eg. contract, tort, restitution and trusts – set of principles, derived from common law, supplemented or complemented by specific legislative intent if and when this is to be found).

Question 75

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) MODIFIED ULTRA VIRES MODEL OR GENERAL LEGISLATIVE INTENT MODEL

Answer 75

- Eg Forsyth and Elliott. - supporters of ultra vires doctrine have accepted many of the criticisms and CONCEDED that the legislature will rarely have any specific intent as to the content of the rules which make up judicial review (have accepted that it is legitimate for the courts to impose the controls which constitute judicial review directly on bodies which do not derive their power from statute). - HOWEVER, they maintain that ultra vires must still be the central principle of judicial review: argued that legislative intent must be found in order to vindicate judicial review, since to discard the ultra vires principle would entail a strong challenge to parliamentary sovereignty, and would also involve the exercise of untrammelled power by the courts. The argument is put in terms of general legislative intent (unrealistic to consider that Parliament had any specific intent): Parliament is taken to intend that its legislation conforms to the basic principles of fairness and justice which operate in a constitutional democracy (however because Parliament itself cannot realistically work out the precise ramifications of this general idea, it delegates power to the courts which then fashion the more particular application of this idea in accordance with the rule of law).

Question 76

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Objections to the argument that general legislative intent should be conceived as the central principle of administrative law: (a) Key Difference In The Roles Played By Legislative Intent in the two versions of the ultra vires doctrine MUV concedes part of the argument to CL theorists: Parl intent will rarely tell us about the scope of review or its content, which is left to the courts

Answer 76

- In the traditional doctrine, it was “meaningful to call it an ultra vires doctrine precisely because it was meant to provide not only the legitimation for intervention, but also the content of judicial review in the particular case” (JUSTIFICATION & CONTENT – legislative intent seen as tool through which Parliament’s specific will would delineate the ambit of judicial review in the instant case). - However with modified ultra vires doctrine, the theory sees general legislative intent merely “as a key to unlocking the door to allow the courts to decide on the ambit of judicial review in accord with the rule of law” - only formal legitimation for review and no comment on specific content of review – “this will be determined by the courts in accord with whatsoever they choose to include within it pursuant to the rule of law ideal”. - This shift in position in itself concedes large part of common law argument (that legislative intent will rarely tell us anything about scope of review or content and that this will be decided by the courts). Common law model supporters make it clear that they believe that content of judicial review should be decided in accordance with rule of law or normative considerations of justice. - Thus REASONING IS SIMILAR TO THAT OF COMMON LAW PROPONENTS (ie. formal bow to legislative intent but beyond that, no statement on the content of review): the reasoning underlying modified theory is that “once you get beyond the formal bow to general legislative intent, very similar to that propounded by the common law model” (by moving to general intent, the difficulties of understanding how legislative intent can make sense of the detailed application of the principles of judicial review in a particular instance are lessened). Moreover it is “not clear what function would be served by judicial invocation of the language of ultra vires in terms of general legislative intent” (NOT NECESSARY)

Question 77

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Objections to the argument that general legislative intent should be conceived as the central principle of administrative law: (b) Different normative force of specific and general legislative intent

Answer 77

Ð with specific legislative intent, the rationale for which we attach importance to the concept is that in a “democracy people have at least a strong prima facie moral right that courts enforce the rights that a representative legislature has enacted” (Dworkin); Ð however general legislative intent does not satisfy this ambition because it is set at such a general level that it will not be determinative of what rights an individual should receive in court (legislature will not have any clear idea of what particular meaning it wishes to accord to rationality and fairness and thus will be for the courts to fill this void). - “it has been shown that general legislative intent as manifested in the modified ultra vires doctrine will tell us nothing in and of itself about the detailed content of review” - this leads ultimately to an adoption of the common law stance

Question 78

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Legislative Intent as Central Principle of Administrative Law Assessment: Implications for the Substance of Other Areas of Law

Answer 78

- Another argument for the centrality of the ultra vires principle is that Parliament in a constitutional democracy is to be assumed to wish to act fairly and rationally, coupled with delegation to the courts to work out the details is regarded as the foundation for this assertion. - But: “the central kernel of the argument is that where Parliament has passed a statute it is not open to the courts to impose controls unless they can be legitimated by reference to legislative intent … legislative intent must be found in order to legitimate the imposition of any constraints on the way in which power is exercised. This legislative intent can be either specific, or general, but some species thereof must be found to authorise the imposition of any control” - Craig tests this assumption by looking at the way in which we justify the imposition of the principles of contract, tort, restitution and the like to public bodies which derive their power from statute o if the theory is that Parliament has passed a statute which has given power to a particular public body and we are not entitled to impose any limits on the way that power is to be exercised unless we can find a justification in terms of legislative intent, then if we wish to argue that the public body should be subject to rules of contractual, tortious or restitutionary liability, then the requisite legislative intent must be found. - But “it is clear that this reasoning does not accord with how we think of the application of the rules of civil liability to public bodies, nor does it capture the way in which the courts approach the matter” (the reality of the judicial approach in this area is that the courts develop the principles of civil liability which they believe best capture the underlying aims of contract, tort and restitution – these common law principles are formally valid because pronounced by courts which are competent over subject matter). - So: legislative intent model doesn’t correspond with how civil liability is imposed on public bodies

Question 79

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Legislative Intent as Central Principle of Administrative Law Assessment: Formal Basis for Judicial Intervention

Answer 79

- KEY POINT: “the modified form of the doctrine concedes almost all of the substance argued for by those in the other camp”. - Forsyth and Elliott insist that constitutional orthodoxy demands that we accept their view that judicial review is based on legislative intent as to do otherwise would entail a strong challenge to sovereignty - Might be thought that this is a compromise o ie Common Law Model wins on SUBSTANCE – accepted by all sides that the detailed doctrines of judicial review are developed by and through the common law courts; o Ultra Vires Model wins on FORM – in the sense that constitutional orthodoxy is preserved by legitimating the exercise of judicial power through the idea of legislative delegation in the manner described. - But Craig’s not satisfied with this: argues that constitutional orthodoxy is not in any way offended by the picture of review articulated by common law model proponents; and the “modified ultra vires doctrine articulated by Elliott entails a novel view of the relationship between courts and the legislature in our country which is not warranted in terms of orthodox constitutional principle or constitutional history”.

Question 80

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Argument from Analytical Logic

Answer 80

Ð Craig has previously argued that the claim that constitutional orthodoxy requires adherence to the ultra vires doctrine is an analytical impasse. He does not believe that adherence to the common law model of illegality entails logically a strong challenge to sovereignty and aims to show that there is “nothing in the views of those who are opposed to legislative intent as being the foundation of judicial review which in any way leads to a strong challenge to sovereignty” Ð Analytical difficulty premising the modified ultra vires doctrine is the idea that: o what an all-powerful Parliament does not prohibit, it must authorise either expressly or impliedly – thus if the making of vague regulations is within the powers granted by a sovereign Parliament, on what basis may the courts challenge Parliament’s will and hold that the regulations are invalid? (Has to be based on sovereignty) - Craig disagrees: o common law model holds that the principles of JR are developed by the courts and the creation of common law; legislature will rarely provide any indications as to the content and limits of what constitutes JR; thus the courts will impose the controls which constitute JR and if the omnipotent Parl doesn’t like these controls, it is open to it to make this explicitly clear. o The KEY POINT: “there is nothing in the common law model which involves a strong challenge to sovereignty. It is based on the assumption that it will be for Parliament expressly, or in some other unequivocal manner, to demonstrate that it does not wish the normally applicable judicially developed controls to apply in a particular instance” ♣ Contrast a strong challenge to sovereignty, which would entail the proposition that the courts will continue to apply their judicially developed tools even where there is an express or unequivocal parliamentary intention to the contrary. ♣ “it is of course the case that in this sense legislative intent is of relevance for those who adopt the common law model. This is however, true of any body of jurisprudence developed by the courts on any subject”. - Craig and common law school reject the constitutional assumption that what an all-powerful Parliament does not prohibit, it must authorise expressly or impliedly: “unless the all-powerful Parliament has clearly authorised action which is inconsistent with the judicially created controls then such controls should be operative and the relevant action should be prohibited. There is no need to find any positive legislative intent to justify the imposition of the controls which constitute judicial review”

Question 81

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Argument Concerning Judicial Supremacism

Answer 81

- Elliott deploys second argument as to why JR must be founded on legislative intent: that to forsake the ultra vires principle involves an unwarranted manifestation of judicial supremacism and inconsistent with any legal duty of judicial fidelity to the will of Parliament. - But Elliott misreads Laws’s article in criticising it. Craig: “the doctrine of judicial review in general was not based on a conferral of power by Parliament to courts. This is clearly correct in historical terms” (nothing in the common law model of review entails a strong challenge to sovereignty).

Question 82

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Constitutional Principle: the Relationship between Sovereignty and the Rule of Law

Answer 82

Ð modified ultra vires theorists could claim that their view best conforms to constitutional principle quite independently of the analytical argument; they would contend that the idea of legislative delegation to the courts of the power to develop the rules of JR in accordance with the rule of law is empirically plausible and achieves the best accommodation between sovereignty and judicial power. Ð But: “we should think long and hard before accepting this rationalisation, since it has far reaching implications for the relationship between sovereignty and the rule of law. It will be shown that it is in fact the common law model which best captures the relationship between sovereignty and the rule of law, the twin principles which underpin our constitutional order”. - modified ultra vires doctrine position is not supported by case law jurisprudence: o the jurisprudence is an expression of the common law model and the courts did not act on the assumption that the existence and application of the norms which constitute the rule of law were dependent on a finding of legislative intent. o Jowell argues that the rule of law is designed to disable the government from abusing its power: no argument that the norms which comprise the rule of law can only be taken to exist if one can point to some specific or general legislative intent by way of justification.

Question 83

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Conclusion

Answer 83

- “the common law model of illegality best captures what the courts have done for the last three hundred and fifty years, and it continues to do so”. - this is the case even when courts or judges proclaim adherence to the ultra vires model – an example of this is the recent case law on collateral challenge - eg. Boddington v British Transport Police [1998] o Lord Steyn explicitly stated that ultra vires should still be regarded as the foundation for review. o However the traditional ultra vires model, based on specific legislative intent, could not provide (acc. to craig) the rationalisation for the judgment, “the actual reasoning used fits perfectly with the common law model” ♣ Lord Steyn provides a set of normative and pragmatic reasons why collateral attack should be available in criminal cases – classic example of a judgment developing review (in this instance in ambit of collateral challenge) on grounds of principle which are normatively warranted in terms of justice, the rule of law, etc ♣ legislative intent features in the judgment in just the manner claimed by proponents of the common law model – performs a residual function ♣ [NB also now note that Steyn accepts that UV doesn’t work] - “those who support the common law model have nothing, in and of itself, against the idea of legislative intent”- essential dividing line between supporters and opponents of the ultra vires model is “as to how far legislative intent can provide a modified version of that doctrine” (aim of article has been to challenge the modified version of the ultra vires doctrine which has been created by those who support the ultra vires doctrine and shifting ground).

Question 84

Craig, ‘Competing Models of Judicial Review’ [1999] (also in the Forsyth book) Summarises Argument:

Answer 84

- “it has been argued that there is no warrant for the claim that general legislative intent can be regarded as the foundation for judicial review, in terms of the substance of review itself. It has moreover been argued that there is no basis for the claim that the ultra vires model must be adhered to as the formal basis for review. The argument that this must be so, since to do otherwise would entail a strong challenge to sovereignty, or unchecked judicial supremacism, is unfounded”. “the foundations of judicial review laid by the courts over three hundred years ago were based on the common law model. They continue to provide a fitting picture of the relationship between courts and Parliament. It is time we acknowledged our past, and recognised its continuing relevance for our future”.

Question 85

Griffith

Answer 85

- “I consider that the review of substantive policy decisions made by PAs acting within the four corners of their statutory or prerogative powers should be out of bounds to the courts and I would instance Anisminic, Padfield; and Pergau Dam as exceeding the limits”

Question 86

Allan: the “fruitless, conceptual war dance”

Answer 86

- UV debate most instructive about what it reveals about the general conditions of our constitutional theory: attempts at theoretical coherence are always thwarted by formalism - UV / CL agree (for the purposes of this debate) that Parliament is sovereign, but what if it is not? Then the very meaning behind the debate and particularly UV, is swept away - If Parliament is sovereign, then “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. [I disagree. See craig: they just say that whenever parl has made its will clear, they follow it] o In that sense, Christopher Forsyth was right to maintain that “weak” critics of ultra vires—those who do not explicitly challenge the sovereignty of Parliament—are ‘whether they intend it or not ... transmuted into ‘strong’ critics’” - But the premise of PS is false, and so the proponents are “trapped in fruitless conceptual war-dance” - “The preservation of the rule of law, as a basic protection against arbitrary power, is always an essential first premise; and the danger of serious conflict between parliamentary intent and common law principle therefore dissolves in the process of judicial construction, faithful to the general constitutional scheme.” - “The courts' standard treatment of ouster clauses, exemplified in Anisminic , may be quite properly understood, therefore, as the consequence of a mode of interpretation dictated by the rule of law. But since there are constitutional limits to Parliament's capacity to insulate the executive from judicial review—limits intrinsic to the polity as a constitutional democracy that embodies the rule of law—it is a mode of interpretation impervious to serious legislative contradiction.”

Question 87

Forsyth & Elliott

Answer 87

- Acknowledge that Allan accepts their argument that sovereignty implies PS, but disagrees with them that parliamentary sovereignty is an absolute ‘given’ - Reply that “in order to sustain the argument that the UV doctrine is constitutionally imperative, one does not have to embrace the principle of PS in its orthodox form” - Because: o 1) the relevant inquiry is not whether Parliament is fully sovereign in a traditional sense, but only if its authority it so limited that legislative choice is precluded as to the application of principles of good administration; and o 2) even if Parliament is impotent to enact extreme (unlikely) measures, this does not affect the UV debate, which is only affected if Parliament cannot modify principles of good administration - Leaves an outstanding issue: “whether the principles of good administration constitute limitations upon the competence of the legislature under the prevailing constitutional arrangements in the UK” 
 - Argue that “the principles of JR are constitutionally fundamental... but not immovable. Parliament can, in the final analysis, qualify them or even displace them” - Allan’s view is Dworkinian - the integrity of the constitutions means the normative force of principles of JR precludes Parliament’s ability to undermine them systematically - Thoburn shows that Laws LJ in his judicial capacity recognises that Parliament is sovereign concerning substantive issues; whilst this is the case, i.e. until the CL abandons the traditional notion of PS, PS remains the cornerstone of the “prevailing constitutional order” the modified UV doctrine must formulate the basis of administrative law 
 o [I don’t think so…again this neglects the fact that CL theorists do say that when there’s explicit parl intention, we’ll follow that]

Question 88

Does Forsyth concede too much?

Answer 88

- Backtracks on ‘fig leaf’ article that ““it cannot be plausibly asserted that the implied intent of the legislature provides any significant guidance to the reach of the rules of natural justice or the fine distinctions to be drawn between decisions that are unreasonable but not irrational and the like” - This is because “it is impossible to make sense of JR without considerable recourse to the legislative frameworks within which administrative power subsists” - Use dictum of Lord Bridge in Lloyd v McMahon to argue that: 1) duty of fairness engaged when statute empowers a body to make decision affecting individuals, which may trigger reference to a CL right; 2) character of DM body, the kind of decision it makes, and the statutory framework all in the statute - Decisions “almost show that the modified UV doctrine is unnecessary” since it is “inferences drawn from the relevant statute” that are determining the bounds of power - But the modified UV doctrine remains important for when principles drawn from CL are used in the process of statutory, and means all courts ever determine is whether a power is UV or IV 


Question 89

Two key criteria for constitutional justifications of JR

Answer 89

- 1) “It must convincingly account for the existence and development of the principles of administrative law which are invoked by the judiciary in order to regulate the exercise of discretionary power” o [I think CL theory does this better than MUV] - 2) “It must secure the constitutional legitimacy of the considerable powers wielded by the courts through their supervisory jurisdiction by anchoring JR firmly within the prevailing constitutional order” o [I think craig shows that CL fits at least perfectly well – and probably better – within the prevailing constitutional order]

Question 90

Prerogative powers not established by statute, but still subject to JR [this seems to favour CL view] CCSU v Minister for the Civil Service (1985)

Answer 90

- Prerogative powers are not created by statute yet are amenable to JR - Lord Diplock classified the grounds for JR independently of the UV doctrine - Despite acknowledging: “The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute...may still be the common law itself, i.e..."the prerogative."” - Procedural impropriety: “susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” o i.e. when statute enters the field it adds to the CL, and does not replace it.

Question 91

Same for voluntary bodies [again, seems to favour CL] R v Panel on Take-overs & Mergers ex parte Datafin (1987)

Answer 91

- Applicants complained that the Panel had incorrectly applied their take-over rules, and had thereby allowed an advantage to be gained by the applicant’s rivals who were bidding for the same company. - Panel was a self-regulating body with no direct statutory, prerogative or CL powers but it was supported by certain statutory powers that presupposed its existence and decisions could result in the imposition of penalties. CA held against Panel: the ‘source’ of a body’s powers was not the only criteria for judging amenability to public law. ‘Nature’ of the power made it amenable to JR for following reasons: 1) it was self-regulating but did not operate consensually or voluntarily, but imposed a collective code on those in its ambit 2) it was performing a public duty as manifested in gov’s willingness to limit legislation in the area and use PTM as part of its regulatory machinery; there was an “implied devolution of power” 3) Its source of power was only partly moral persuasion, as reinforced by exercisable government and BoE statutory powers 4) cause of action in contract or tort against the PTM

Question 92

Dicta supporting UV theory R v Hull University Visitor, ex parte Page (1993)

Answer 92

(note that the CL model might see this as simply applying Parliament’s will – which they are happy to do when that will is clear – or that the judges are trying to pay lip-service to a doctrine their reasoning is not consistent with) - Page was a lecturer at H.U. who was made redundant. - He argued that the terms of his appointment did not allow termination of his employment on this ground. - The University Visitor dismissed the argument, and Page sought JR of the Visitor’s decision. Lord Browne-Wilkinson 1) Anisminic and O’Reilly: “Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires” 2) The constitutional foundation for the court’s power was UV: in an ordinary case applying general law rather than a special domestic regime, the law applicable to a decision made by such a body was general law of the land. Tribunal or inferior court would be acting UV, therefore, if it reached a decision that was erroneous in general law. 3) Only relevant errors of law would lead to such quashing / declare null i.e. affecting the making of the decision and the decision itself. - Dictum supporting UV: o “The fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases . . . this intervention . . . is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense ... reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully.”

Question 93

Collateral challenge Boddington v British Transport Police (1999)

Answer 93

- Administrative measure banned smoking throughout all franchise trains. - B was prosecuted for smoking, but said a complete ban was not legal since it was permissible under relevant legislation. - Argument: ban on smoking was introduced under administrative powers and that statute which authorised making of regulations, did not go so far as to authorise a complete ban, and so the rule maker went beyond their authority. HL - this argument could be made as a ‘collateral challenge’ within criminal proceedings. - JR may not be available and the remedies are discretionary, but nobody should be imprisoned for a criminal conviction that does not exist. Support for UV - Distinction 1: o Voidable: unlawful act exists until set aside by courts i.e. not collaterally challengeable and exist until High Court quashes them o Void: unlawful act never existed: it was void ab initito, and so collateral challenge is possible since there is no quashing, simply ignoring what is only purportedly there - Distinction 2: o UV: act in question was never legally authorised, and so is void o Common Law: legislature does not deny authority ab initio, and so whilst voidable under CL principles, there is no possibility of collateral challenge 
 - HL go w. void; UV: Dicta supporting UV: - 
Lord Irvine: “once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion.” o [so – this doesn’t seem conclusively to go w. UV…] - 
Lord Steyn: “Leaving to one side the separate topic of judicial review of non-legal powers exercised by statutory bodies, I see no reason to depart from the orthodox view that ultra vires is “the central principle of administrative law” as Wade and Forsyth...described it” 
 o [see Craig on how this is window-dressing, given his args of principle]

Question 94

BUT see Lord Steyn’s subsequent extra-judicial reflection (Lord Steyn: Democracy Through Law) on Boddington

Answer 94

- In my view judicial review is the ground on which the contours of a modern democracy are shaped. The theoretical underpinning of the principles of judicial review is important because it may affect their reach. - The orthodox view in Britain is that the statute-based part of judicial review is legitimised by the ultra vires doctrine. With the agreement of other Law Lords I repeated this mantra in 1999 in Boddington. - Academic lawyers in England and New Zealand have argued persuasively that this theory is incomplete, formalist, contrived and fictional. Britain has much to learn from New Zealand jurisprudence about the legal foundation of judicial review. - I have found it instructive that by and large, your courts [NZ] have not found it necessary to invoke the ultra vires doctrine. o In Peters v. Davison your [NZ] Court of Appeal put the matter quite simply by saying that “the judicial review powers of the High Court are based on the central constitutional role of the court to rule on questions of law”. As a department of state the judiciary is charged with the constitutional duty to control abuse of power by the state, its officials and emanations. In a democracy the rule of law itself legitimises judicial review. - I now accept that the traditional justification in England of judicial review is no longer supportable. By overwhelming weight of reasoned argument the ultra vires theory has been shown to be a dispensable fiction.

Question 95

LECTURES What are the UV's attractions? 1. it enjoys a degree of judicial support

Answer 95

although it is certainly arguable that judicial reliance upon the rhetoric of ‘ultra vires’ does not necessarily imply thoroughly thought-through support for the ultra vires model. See, for example, myriad references to ‘ultra vires’ in the speeches in Boddington v British Transport Police [1999] 2 AC 143, and, in particular, Lord Steyn’s comments (at 171): Leaving to one side the separate topic of judicial review of non-legal powers exercised by non statutory bodies, I see no reason to depart from the orthodox view that ultra vires is "the central principle of administrative law" as Wade and Forsyth … described it. Note also Lord Browne-Wilkinson’s comments in R v Hull University Visitor, ex parte Page [1993] AC 682 at 701: The fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases . . . this intervention . . . is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense ... reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully. He anchors what courts do in underlying legislation: ‘powers conferred on underlying assumption. But there is ambiguity as to whether these judges are endorsing the specific doctrine – or just using ‘ultra vires’ as a synonym for ‘unlawful’ – without actually referring to the concept itself

Question 96

LECTURES What are the UV's attractions? 2. in some (but, as we will see, not all) circumstances, the ultra vires doctrine seems accurately to capture what is going on, in terms of courts reviewing executive action for compliance with standards which are laid down, or otherwise apparent from, the legislation—and that seeking to explain what the courts are doing in any other way would be unconvincing.

Answer 96

• R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557 Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (…). The question was whether the claimant in the case was a child. The supreme court said that it was within their jurisdiction to decide on whether C was a child. This is a clear example of a court deciding on the legality of administrative action with reference to a statute – they are following, therefore, the kind of process that the ultra vires principle says JR is all about. • R v Secretary of State for the Home Department, ex parte Venables Home Secretary set the tariff period of child murderer Jon Venables, on a once and for all basis. It was held that in doing so, the minister was acting unlawfully – the statute imposed a duty to have regard to the welfare of the child or young person – requiring ongoing review of the tariff period – not setting once and for all. He was acting ultra vires.

Question 97

LECTURES What are the UV's attractions? 3. viewed from the perspective of judicial politics, the ultra vires model is highly convenient:

Answer 97

• Judges as ‘modest underworkers’: Cotterell, ‘Judicial Review and Legal Theory’ in Richardson and Genn (eds), Administrative Law and Government Action (Oxford 1994) at 16 Cottrell suggests that the judges play a role as ‘modest underworkers’. The implementation of parliamentary intention simply protects judges against charges of activism or judicial supremacism. • ‘...[T]he logic behind the doctrine provides an inherent rationale for judicial review ... The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot’: Baxter, Administrative Law (Cape Town 1984) at 303. Judges by employing the theory are cloaking judicial review under parliamentary sovereignty. They aren’t just implementing the will of parliament, but the will of sovereign parliament.

Question 98

LECTURES What are the UV's attractions? 4. Reconciles with Parliamentary sovereignty

Answer 98

the ultra vires model provides a way (indeed, the way) in which judicial review may be reconciled with parliamentary sovereignty. This point is related to the third, but whereas the third point is concerned with the implications of judicial review from the perspective of judicial politics, the fourth argument is concerned with the implications of judicial review from the standpoint of fundamental issues of constitutional architecture. Because the fourth argument has proven to be pivotal in the debate about the foundations of judicial review, we need to consider it in some detail.

Question 99

LECTURES What are the UV's attractions? 4. Reconciles with Parliamentary sovereignty (expanded)

Answer 99

The nub of the parliamentary sovereignty argument—which holds that ultra vires is imperative if judicial review is to be legitimate in the face of legislative supremacy—was set out in the following terms by Forsyth, ‘Of Fig-Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ [1996] CLJ 122 at 133-4: The analytical difficulty is this: 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. There is no grey area between authorisation and the denial of power … [T]o abandon ultra vires is to challenge the supremacy of Parliament. Forsyth makes two key claims – his ‘analytical difficulty’. • Intra vires and ultra vires as mutually exclusive concepts – ‘there is no grey area’. • Intra vires and ultra vires are collectively exhaustive – a decision can’t be anything but UV or IV. developed in 'Heat and Light'

Question 100

LECTURES Criticisms of UV 1. The ultra vires model lacks explanatory power

Answer 100

The central point here is that (so it is said) it is not believable that the courts’ task in judicial review cases is simply one of statutory interpretation. As Laws, ‘Law and Democracy’ [1995] PL 72 at 78-9 puts it: In the elaboration of [principles of judicial review] the courts have imposed and enforced judicially created standards of public behaviour … [T]heir existence cannot be derived from the simple requirement that public bodies must be kept to the limits of their authority given by Parliament. Neither deductive logic nor the canons of ordinary language ... can attribute them to that ideal, since … in principle their roots have grown from another seed altogether ... They are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig-leaf to cover their true origins. We do not need that fig-leaf anymore… There are cases that clearly turn on parliamentary intention – Croydon, Venables. But what about other grounds of judicial review – Wednesbury unreasonableness, substantive legitimate expectations etc – that surely can’t be directly read from statutes. Can we really get from the statute to the individual grounds of review? The basic ‘fig leaf’ argument is that claiming that all grounds of JR are intended by parliament is mere pretence.

Question 101

LECTURES Criticisms of UV 2. UV as a fig leaf (Laws)

Answer 101

Realistically we know that the law of JR is law of judicial creation – like tort or contract. The wider significance is that: a. Judges shouldn’t be allowed to hide behind such pretence; and b. In doing so they escape justifying their development of grounds of review – claiming that they are simply effecting parliament’s intention.

Question 102

LECTURES Criticisms of UV 3. Development of judicial review over time (Craig)

Answer 102

This is a body of law that has grown up in a very short period of time. Admin is a very recent creation. Furthermore the content of the law is ever changing and not static – a. New grounds emerge; and b. Existing grounds (e.g. Wednesbury) are developed. If the UV view is to be believed, this has happened because parliament intended it that way. But how can judges just divine this parliamentary intention? Critics say that these are actually changes that judges have authored – as judges were authors of the grounds of review in the first place.

Question 103

LECTURES Criticisms of UV 4. Ouster clauses (Anisminic v Foreign Compensation Commission [1969] 2 AC 147) (Craig)

Answer 103

Held, review of wrong determinations was not prohibited by the ouster clause – they were not determinations. Critics of the UV doctrine say that ‘you can’t have your cake and eat it’. Parliament seemed very clearly to have the intention to prohibit review of the body’s decisions. How can you say that the court were only giving effect to the will of parliament by seemingly very clearly undermining it.

Question 104

LECTURES Criticisms of UV 5. • Judicial review of non-statutory power (on this point, see, in particular, Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review?’ [1987] PL 543) (Also Craig)

Answer 104

JR doesn’t only apply to statutory power. It has now been rolled out to prerogative (GCHQ) and prerogative (Datafin, Takeover Panel) powers. How can the UV doctrine account for this? There is no statute to interpret. At the very least, this criticism suggests that UV is an incomplete explanation. Perhaps though this demonstrates that it is flawed, and should be rejected entirely. Response may be that review of the exercise of statutory and non-statutory powers need not rest on the same foundation

Question 105

LECTURES Criticisms of UV 6. The ultra vires doctrine is constitutionally unnecessary

Answer 105

Ultra vires supporters’ response to the foregoing points is that however flawed the ultra vires doctrine is, it must be retained because it supplies the only way of reconciling judicial review with parliamentary sovereignty. (The negative aspect). Opponents of ultra vires argue dispute this argument. This point can best be explained after considering the alternative justification for judicial review advanced by many of the ultra vires critics. Claim: Ultra vires is constitutionally essential – it is the only way of reconciling JR with parliamentary sovereignty. a. Response I: Judicial review can be reconciled with parliamentary sovereignty without recourse to ultra vires. (The common law model and modified ultra vires). b. Response II: Parliament isn’t sovereign, so the issue is moot. (Allan).

Question 106

LECTURES Benefits of Common Law Model 1. Explanatory capacity

Answer 106

This approach is far more convincing than that of the traditional ultra vires theory: • The ‘fig-leaf’ discarded—but are ultra vires critics going too far here? See Allan, ‘The constitutional foundations of judicial review: conceptual conundrum or interpretative inquiry?’ [2002] CLJ 87 The model is open about acknowledging the creativity of the judges. This places an obligation – a healthy one – on judges to justify what they’re doing. It does not allow them to hide behind the fig-leaf of parliamentary intention. But does this explain all of judicial review – surely some decisions, such as in Venables and Croydon, clearly show the courts applying the will of parliament. Elliott asks whether common law theorists are ‘throwing the baby out with the bathwater’. Clearly all grounds don’t derive from parliamentary intention – but does that mean that none of them do? • Dynamic nature of the law of judicial review The theory allows for the law to change as new factual situations come along – it allows development of the law in exactly the way that e.g. tort does. Developing social norms about government behaviour, and new factual situations arise - allowing to judges to develop the law to reach just outcomes. New principles of review can emerge without the pretence and logical difficulty of justifying them on the basis of parliamentary intention. • Ability to account for review of non-statutory power Where Parliamentary intention is no part of the justification, JR rules are applicable to any form of power.

Question 107

LECTURES The ultra vires theorists’ objection 1. Inability to reconcile with Parliamentary Sovereignty

Answer 107

Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ [1999] CLJ 129 and The Constitutional Foundations of Judicial Review (Oxford, Hart 2001). There is ultimately a constitutional stumbling block in the common-law model – it does not allow for the reconciliation of judicial review and parliamentary sovereignty. More specifically, they (UV theorists) argue that one of two things must be true of any given application of the common law rules of good administration: • either that they result in the striking down by courts of administrative action lying within the scope of the power conferred by Parliament; Parliament grants power free from limits (such as requirements to act reasonably, fairly etc), but the common law rules that the power may not be used unreasonably, unfairly and so on. CL rules are then illegitimate. • or that they are redundant, because administrative action that conflicts with the common law rule in question is in any event unlawful because it lies outside the authority conferred by Parliament. If parliament hasn’t conferred that power (to act unreasonably etc), then it must have withheld that power. The common law rules are therefore redundant. It follows, says Forsyth, ‘Of Fig-Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ [1996] CLJ 122 at 134, that, ‘“Weak” critics, whether they intend it or not, are transmuted into “strong” critics.’ In other words, to abandon ultra vires is to challenge the sovereignty of Parliament—whether or not this is intended. • “Weak critics” challenge the UV doctrine but accept parliamentary sovereignty (the common law approach represents a weak criticism, where it recognises sovereignty) – Craig, Laws (?), Oliver. Forsyth views this as an untenable position – you can’t be a common law theorist and think that parliament is sovereign. • “Strong critics” (Allan, Laws(?)) challenge UV, and use it’s deficiencies as a basis by which to openly challenge parliamentary sovereignty. Forsyth argues that weak critics are necessarily strong critics. He says that implicit within any criticism of UV implicitly denies the sovereignty of parliament.

Question 108

LECTURES Response to objection to CLM of failing to reconcile with Parliament 1. False premise

Answer 108

First, say common law theorists, the ultra vires argument about the constitutional necessity of the ultra vires doctrine rests on a false premise. The premise in question is Forsyth’s view that when Parliament grants a power, any given use of it (eg the taking of an unreasonable decision) must be either permitted (intra vires) or prohibited (ultra vires). See, eg, Laws in Supperstone, Goudie and Walker (eds), Judicial Review (London 2005) at 97: Forsyth’s reasoning as to the ‘analytical consequences’ of the abandonment of ultra vires is unsound. It is simply not correct to assert that ‘there is no grey area between authorisation and prohibition’ ... It is, as a matter of logic, quite possible for Parliament neither to authorise nor to prohibit a particular act. Such a situation would arise where, as regards a particular issue, Parliament has expressed no intention one way or the other. Supporters of the common law model respond by suggesting that UV is based on a false premise – IV and UV are not mutually exclusive and collectively exhaustive. There is instead a grey area between authorisation and prohibition – and a possibility of agnosticism on the part of parliament. But is Laws’s attribution to Parliament of agnosticism in relation to rule of law constraints upon administrative power a realistic or empirically defensible one? Consider, in this regard: • R v Lord Chancellor, ex parte Witham [1998] QB 575 • Anisminic v Foreign Compensation Commission [1969] 2 AC 147 Laws is right that Parliament has no actual intention about the applicability of judicial review – but does parliament ever have actual intention? Forsyth denounces the false premise argument by suggesting that parliamentary intention is a construct – the normal approach in the courts is to construe statutes, as opposed to overriding them with common law. Forsyth says that Parliament never have actual intention, but have constructive intention. (He doesn’t actually go that far’). The ‘grey area’ argument is inconsistent with the normal approach to statutory construction. It’s implausible to suggest that parliament could be agnostic. They expect their legislation to be interpreted along with the principles of the rule of law (so therefore constructively intend it?).

Question 109

LECTURES Response to objection to CLM of failing to reconcile with Parliament 1. Over-reliance on legislative intention

Answer 109

Craig, ‘Competing Models of Judicial Review’ [1999] 428 at 433-4, argues that Forsyth’s argument, if accepted, demands an absurd level of reliance upon legislative intention. If, says Craig, Forsyth’s view was accepted, then we would not be entitled to impose any limits on the way in which that power is exercised unless we can find justification in terms of legislative intent. If therefore we wish to argue that the public body should be subject to rules of [for example] contractual, tortious or restitutionary liability then the requisite legislative intent must be found. If Forsyth is correct that the principles of good administration must be justified with reference to legislation, surely all legal controls (e.g. contract, tort and restitution) when applied to public power holders must be justified with reference to the authority of parliamentary legislation. Craig said this cannot be the case – it’s an absurd proposition. One response to Craig’s point is that it is correct but misses the point by conflating two factors—that is, the existence and the application of the principles of good administration—which ought analytically to be kept distinct. What Craig fails to do is distinguish between the application of controls (which is determined with reference to leg.), and the existence of controls in the first place. Craig’s purported proposition is indeed absurd – but it isn’t one that’s inherent in Forsyth’s argument. Furthermore, we must recognise that the position of public actors is very different to private actors. • Public actors and public law. Government starts out with no powers whatsoever, and can only exercise powers that parliament has conferred on them. This means that decision makers have either been authorised by a statute – or they have not. Public law doesn’t regulate the exercise of legal freedom, but of statutory authority. • Private actors and private law. Individuals on the other hand have the freedom to do whatever the law does not prohibit – they neither have nor need statutory authority. Private law can (and must) operate without UV-style reasoning.

Question 110

LECTURES What is the MUV?

Answer 110

Elliott: The Constitutional Foundations of Judicial Review (2001): ‘When parliament enacts legislation to confer discretionary power, making no explicit reference to the controls which should regulate the exercise of that power, the courts are constitutionally entitled – and constitutionally right – to assume that it was parliament’s intention to legislate in conformity with the rule of law. In the absence of very clear provision to the contrary, parliament must be taken to withhold from decision makers the power to treat individuals in a manner which offends the rule of law. (…) The task of transforming this general intention into detailed, legally enforceable rules of fairness and rationality is clearly a matter for the courts, through the incremental methodology of the forensic process. Parliament thus leaves it to the judges to set the precise limits of administrative competence.’ The essence of the modified ultra vires doctrine is that it distinguishes between: • The authorship of the principles of good administration The MUV says that principles of good administration are authored by the judiciary – directly alongside private law rues of tort, contract etc. They are in this sense ‘common law’ principles of good administration. The normative source of these principles is the Rule of Law. [Secures internal coherence]. • The constitutional justification for applying the principles of good administration The application of principles of good administration is reconciled with the use of statutorily conferred power: parliament is assumed to wish that government be subject to rule of law based controls. [Secures structural coherence]. Hence on this view there is a relationship between parliamentary intention and the grounds of review – the kind of relationship that the common law theory rejects. That relationship is indirect, though, as opposed to the direct relationship (i.e. that the grounds of review are attributed to parliamentary intention) that orthodox UV theory maintains.

Question 111

Is the MUV an improvement?

Answer 111

• Ultra vires has been characterised as a ‘fig-leaf’. Is this also true of the modified version? The MUV tries to get around the criticism by recognising that the courts have created the rules of good administration by themselves. • A related point is that traditional ultra vires is highly indeterminate. What about the modified version? Craig (1998) argues that the UV doctrine is indeterminate, meaning that it is so flexible that it can be used to justify any kind of judicial intervention under the guise of implied legislative intention, but ‘cannot provide any independent ex ante guidance’ as to the grounds on which the court should intervene. The very flexibility of the doctrine therefore undermines its usefulness. N.B that Allan (2002) has the same criticism of the Common Law theory itself. He suggests that the specific principles of good administration are themselves so general as to almost be meaningless. Like the common law theory, the MUV suggests that the courts serve this function in order to fulfil their duty of upholding the Rule of Law. It is therefore as determinate – or otherwise – as the principles and values of the Rule of Law; but certainly much more determinate than the traditional conception of UV, which contains no guidance to courts as to the development of the grounds of review at all. • Ultra vires cannot, it is said, account for the development of judicial review over time. Can the modified version do so? UV says that any changes of grounds of review over time are a result of changes in legislative intention – surely this cannot be the case. The MUV however says that the principles evolve alongside the rule of law – just as other aspects of common law evolve over time. • Ultra vires cannot, it is said, account for judicial review of non-statutory power. Can the modified version do so? Norms of review exist independently of legislative intention, and so can be applied to non –statutory power. (If statutory power is in play, we have to reconcile the application of those principles with the sovereignty of parliament – achieved by the presumed intention that the rule of law is to be complied with). The grounds of judicial review therefore exist on a higher plane – applicable to both statutory and non-statutory power. The grounds of judicial review exist as independent norms developed by judges. • It has been pointed out that while the ultra vires doctrine characterises judicial in terms of the implementation of parliamentary intention, the courts actually seem willing, when confronted with an ouster clause, to defy such intention. Is this difficulty convincingly addressed by the modified ultra vires doctrine? (We’ll look at this point a bit later.)

Question 112

LECTURES Does it matter which constitutional foundation is picked? 1. Ouster clauses (a) Does it impact the effectiveness of ouster clauses?

Answer 112

Putting the question in a slightly different way, are ultra vires theorists right when they contend that ouster clauses are more likely to be effective—and the courts less able to resist them—if ultra vires is abandoned in favour of the common law model? In this regard, note Forsyth’s analysis of Staatspresident v United Democratic Front 1988 (4) SA 830 (A) (South African Appellate Division). There was an ouster clause in s.3 of the Public Safety Act ’53, gave the power to make regulations, and then stated that ‘no court shall (…) give judgement on the validity of any proclamation [made under s.3]’ – an ouster clause. Vague regulations were then made by the executive, purportedly under s.3, restricting media freedom. Forsyth says that, properly construed, s.3 did not authorise the making of vague regulations because doing so would be contrary to the fundamental to the RoL principle of legal certainty. The regulations would thus be ultra vires the Act and could be struck down - resisting the ouster clause. The South African courts had rejected the UV analysis however. They said that although vague regulations are contrary to common law requirements, no such requirements were contained within the act. The regulations were therefore protected by the ouster clause and there could be no review of the proclamations. BUT it is necessary to remember the cultural context in which this decision was made – the courts were complicit in upholding apartheid. After this case, ouster clauses in SA began to work. Judicial review was completely obliterated until the constitutional changes. Forsyth says this would not have happened under UV theory. For logicians and philosophers, this is an absolute no-go. Forsyth describes UV as a descriptive argument – that is the state of the law. However, he says this is how UDF should have been decided, so this is the central principle of judicial review. Surely that doesn’t make sense.

Question 113

LECTURES Does it matter which constitutional foundation is picked? 1. Ouster clauses (a) Theoretical point - which foundation provides a better explanation?

Answer 113

E.g. Anisminic v Foreign Compensation Commission [1969] 2 AC 147—in which ouster clauses have been strongly resisted? UV reasoning was central to the conclusion. The court could only say that there wasn’t really a determination (when it was unlawful) because it was a decision made outside of the boundaries of the powers conferred by the act. This, in turn, invites three more specific questions: • What are the objections to ouster clauses? o Rule of law ♣ The concept of unlimited or uncontrollable administrative power is a fundamental affront to the principles of the rule of law. o Separation of powers ♣ Boundaries between judicial, executive and legislative roles. Ouster clauses create a difficulty by denying the courts their constitutional role in the system of checks and balances between the arms of government. o Parliamentary sovereignty (note, in this regard, the ingenious—but arguably unconvincing—argument advanced by Laws LJ in R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012) Laws says that parliament cannot exclude JR – and that is precisely because it is sovereign. This is a complex analysis. Because parliament is the only body with the ability to make law, there needs to be a system of independent courts with the ability to review their powers. • What does this mean for the courts’ role? o (Perceived) need to reconcile resistance to ouster clauses with preservation of orthodoxy o See, eg, Lord Wilberforce’s comments in Anisminic. • How does each of the models of judicial review approach (or rationalise the courts’ approach) to ouster clauses? Forsyth contends that the courts are better equipped to resist ouster clauses if they stick with the ultra vires doctrine. The approach of UV to ouster clauses leaves us in a difficult position. If the courts job is just to mechanically implement statutes, with their sovereign authority, shouldn’t ouster clauses be taken at face value? Can UV theorists have it both ways? The approach Forsyth suggests for UDF works on a technical level, but on a substantive level, it seems to be contradictory. The common law and modified UV models are on common ground – they argue that ouster clauses should not be interpreted ‘in a vacuum’ (Lord Steyn in Pierson) and it is necessary to weigh the clauses against the presumptive force of the rule of law. But on the common law view parliament is supposed to be agnostic – so what is there to weigh these clauses against? The MUV arguably avoids both of the pitfalls of the other models – but still can’t account for the decision in Anisminic. Either all of the models are wrong, or the case must have been wrongly decided. If Parliament is sovereign, there must be a form of words capable of excluding JR. Courts can go no further but to apply a strong presumption. There is, of course, an elephant in the room—viz the argument that Parliament might just not be sovereign in the first place, such that it cannot exclude judicial review. We consider that argument later.

Question 114

LECTURES Does it matter which constitutional foundation is picked? 2. Collateral Challenge

Answer 114

It is, then, at least arguable that how we characterise the basis of judicial review may have practical consequences in relation to ouster clauses, and, in particular, the courts’ capacity to resist them. A second sense in which the theoretical foundations of review are of arguably practical relevance concerns ‘collateral challenge’. This topic will be covered in detail later in the course. For the time being, just note the following points as they relate to the foundations of review. If an individual is prosecuted for breaching a regulation, you don’t have to seek JR to get it struck down. They could just argue that the regulation you’re charged with breaching never existed – it was made ultra vires. • What is collateral challenge? See Boddington v British Transport Police [1999] 2 AC 143 B charged with smoking on a train in breach of a regulation made by the rail provider. He argued that it was made UV and therefore was void. It was held that he could either have made this argument by seeking JR of the bylaw, or by sticking with the criminal proceedings and raising the ‘voidness’ of the bylaw as a ‘collateral challenge’ within those proceedings. Collateral challenge is only possible if the notices were void ab initio. • Why is it important? o Recourse to JR is time-consuming and expensive. o JR may not be possible because of the short imposed time limit. o Remedies are discretionary in JR. If you are in criminal proceedings the court is required to provide the appropriate remedy. • Why is collateral challenge possible only if unlawful administrative action is ‘void’ rather than ‘voidable’? A voidable act exists until set aside by a competent court. Voidable acts are not collaterally challengeable – they exist until quashed by a high court. Other courts such as the criminal court cannot quash these acts. A void measure, however, technically never existed. This means that they do not actually need to be quashed – all courts must simply ignore them. This means that void action can be collaterally challenged. • Why does the ultra vires theory (but not the common law theory) ensure the voidness of unlawful administrative action? Under the UV doctrine, acts which were exercised UV are necessarily void as they were never legally authorised. This enables collateral challenge. Under the common law theory if they are against a common law principle they will merely be voidable and therefore there can be no collateral challenge. See further Forsyth, ‘Collateral challenge and the foundations of judicial review: orthodoxy vindicated and procedural exclusivity rejected’ [1998] PL 364, referring to the powerful and convincing speeches delivered by Lord Steyn and Lord Irvine of Lairg [in Boddington] … which expound and restate classical judicial review theory showing how the rule of law, the ultra vires doctrine and the voidness of unlawful administrative acts are linked together to form the firm foundations of much of the judicial review of administrative action. In the future critics of these foundations will need to overcome Boddington.

Question 115

LECTURES Parliamentary sovereignty: challenging the basic premise Allan’s argument ('The constitutional foundations of judicial review: conceptual conundrum or interpretative inquiry?’')

Answer 115

First, he considers the position which obtains if Parliament is sovereign: 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 that sense, Christopher Forsyth was right to maintain that “weak” critics of ultra vires—those who do not explicitly challenge the sovereignty of Parliament—are “whether they intend it or not … transmuted into ‘strong’ critics”. If parliament is sovereign, then some form of UV theory is required. It is not possible to rail against UV but maintain that parliamentary supremacy exists. But Allan then goes on to argue that the premise on which the debate has been conducted—that Parliament is sovereign—is a false one: The preservation of the rule of law, as a basic protection against arbitrary power, is always an essential first premise; and the danger of serious conflict between parliamentary intent and common law principle therefore dissolves in the process of judicial construction, faithful to the general constitutional scheme. The courts' standard treatment of ouster clauses, exemplified in Anisminic , may be quite properly understood, therefore, as the consequence of a mode of interpretation dictated by the rule of law. But since there are constitutional limits to Parliament's capacity to insulate the executive from judicial review—limits intrinsic to the polity as a constitutional democracy that embodies the rule of law—it is a mode of interpretation impervious to serious legislative contradiction. On Allan’s view parliament is not sovereign, so ultra vires theory is actually unnecessary. We no longer need to reconcile JR and sovereignty – because parliament isn’t sovereign in the first place. If Allan is right about parliamentary sovereignty, then clearly there are implications for how the constitutional foundations of judicial review are characterised; we consider those below. But Allan’s position begs a logically prior, and obvious, question.

Question 116

LECTURES So, is Parliament Sovereign?

Answer 116

First, is Parliament sovereign or not? This is a binary question: Parliament cannot be nearly, or largely, or a bit sovereign: it is either all-powerful or its powers are limited. So, is there any evidence to suggest that Parliament is not all-powerful? • Anisminic v Foreign Compensation Commission [1969] 2 AC 147 s.4(4) of the Foreign Compensation Act 1950 said that ‘the determination by the commission of any application made to them under this act shall not be called in question in any court of law.’ It was held that JR was possible in spite of this ouster clause. Wade & Forsyth on Anisminic: ‘In order to preserve [the] vital policy [of judicial enforcement of legal limits on administrators’ powers] the courts have been forced to rebel against Parliament.’ • R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 at [102] (Lord Steyn) The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal. It was against the background of an almost Anisminic-proof clause in parliamentary legislation (that had been removed at the 11th hour) that prompted the Law Lords in Jackson to host such wide ranging discussion in obiter on the nature of sovereignty. The ground is undeniably shifting – in Jackson three of nine law lords openly questioned whether Parliament can still be said to be sovereign in the orthodox sense. o Lord Steyn: Parliamentary sovereignty is not an absolute fixture. Courts may refuse to recognise the legality of legislation abolishing JR. o Lord Hope: ‘Parliamentary sovereignty is no longer, if it ever was, absolute’. o Baroness Hale: ‘The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.’ • R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012 (Laws LJ) If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament's law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament's sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament's statutes are always effective; that is another. Laws LJ: in order for law to really be law, it must have a settled and predictable meaning. This isn’t possible unless you accept that the court needs to have the final word. This means that parliament should be unable to oust judicial review, because that would necessarily impact on the courts’ ability to be able to interpret the law. This chimes with Lord Hope’s decision in AXA, which said that Scottish legislation should be reviewable on traditional judicial review grounds. • R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 (Lord Phillips) The proposition that parliamentary sovereignty requires Parliament to respect the power of the High Court to subject the decisions of public authorities, including courts of limited jurisdiction, to judicial review is controversial. Hopefully the issue will remain academic. • Lord Hope PSC, BBC Radio 4 interview, 2 August 2010: [I]f Parliament did the inconceivable [by legislating contrary to a fundamental constitutional principle], we [the judges] might do the inconceivable as well’. • Cf Lord Neuberger, ‘Who’s the Master Now?’ (http://goo.gl/2TQjP) [I]n a true democracy, Parliamentary sovereignty is absolute, because the only true master is the electorate. Only they can properly decide if we should have a written constitution, which provides for limited Parliamentary sovereignty, that is for its legal sovereignty to be limited, and the power of constitutional review. Only they can enact such a ‘fundamental change’ in our ‘unwritten constitution’. Allan’s argument, then, is perhaps gaining weight. Whilst all of the above are significant barometers of judicial opinion, the views are universally tentatively expressed and do not go anyway as far as Allan’s assertion that Parliament is wholly incapable of modifying or disapplying particular principles of review. (Elliott).

Question 117

LECTURES even if Parliament is not sovereign, what are the extent of the limits upon its authority?

Answer 117

• Inability completely to abolish judicial review of administrative action If Parliament remains capable of doing everything short of this, then (ultra vires theorists would argue) nothing changes. • Inability to regulate or limit judicial review This would make ultra vires theory irrelevant. On this point, see further Elliott, ‘The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review’ (1999) 115 LQR 651. Forsyth: parliamentary sovereignty is not the be all and end all. We could leave it behind – but this is a decision that needs to be made not by a small few unelected judges, but by the polity as a whole. It would represent a fundamental change in our constitution.

Question 118

LECTURES What if the grounds of review are constitutionally hard-wired?

Answer 118

Ultimately, the question reduces to whether the grounds of judicial review are hard-wired constitutional fundamentals with which Parliament is impotent to interfere. The common law constitution confers – and restricts – Parliament’s authority to legislate. If this is so, then consider the following: • Where does it leave the ultra vires doctrine (modified or otherwise)? Ultra vires says that bodies do not have the power to act unfairly, unreasonably, etc. because Parliament intends to withhold such power. But if the principles of good administration are constitutionally hard-wired, Parliament’s intention (in this regard) becomes irrelevant: power is missing because Parliament unable to confer it. UV becomes irrelevant. • Where does it leave the common law model? Whereas UV says that power to act unfairly etc. is withheld from the power as a matter of parliamentary intention, the common law theory says that the power is conferred, but then removed by the common law rules prohibiting such conduct. But if the principles of good administration are constitutionally hard-wired, then such common law rules are unnecessary. DMs cannot behave like that anyway, because the constitution prevents parliament from authorising them to do so. • What would be the constitutional justification for judicial review in such circumstances? The common law constitution confers and restricts parliament’s ability to legislate, which in turn demarcates the executive’s authority. They would be unable to breach principles of judicial review, because they haven’t been conferred the power to do so. If we accept this argument, then, there can be no JR without undermining the theory. Here you have to distinguish between practical reality and legal theory – this is why Forsyth’s argument trumps Allan’s.

Question 119

LECTURES

Answer 119

Although some writers, notably Allan, describe the foundations of Judicial Review debate as largely sterile, Craig denies that it is an ‘exercise in arid formalism’. ‘It encapsulates differing views about the relationship between the rule of law and parliament’. Accepting that the orthodox UV position is untenable, we can say that whilst the role of judicial creativity in the development of the modern law of JR is openly acknowledged, the primary disagreement still lies in the role to be ascribed to legislation. The difference of opinion does matter. The two models reflect very different vies of the relationship between the three arms of government. The common law model sees the pursuit of administrative justice as the sole preserve of the courts, whilst MUV sees it as a joint effort between the legislature and the judiciary. Properly understood, the ultra vires debate is much more than a discussion about how judicial review should be justified. It is a debate about the very nature of the British constitution, and the courts’ role within it.

Question 120

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Introduction

Answer 120

There are two contending theories seeking to explain the underlying logic of judicial review: the ultra vires and the common law theory (There’s also the “modified ultra vires” theory propagated by Elliott) The former contends that judicial review derives its justification from the permission of Parliament to ensure that delegated decision-makers are kept within the limits of legislation, whilst the latter theory argues that judicial review is simply a product of the common law. Although the ultra vires theory has a superficial attraction, it does not stand up to sustained scrutiny and analysis of the case law reveals that the common law is the justification preferred by the courts, although they pay due respect to Parliamentary intention when it can reasonably be inferred from statute. The judicial activism which has occurred with regards to errors of fact and errors of law demonstrates the inadequacy of the ultra vires doctrine. Good intro but what about the other half of the question?

Question 121

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Ultra Vires or Common Law?

Answer 121

The ultra vires theory claims that the High Court can judicially review the decisions of administrative bodies because Parliament intends that they may do so. There are two variants of the ultra vires theory: specific legislative intent and general legislative intent. The specific legislative intent model argues that Parliament has a particular intention for how every head of judicial review applies to each statute, albeit implicitly. By contrast, the general legislative intent model holds that Parliament intends that its statutes will be applied fairly, according to the rule of law, and that administrative bodies will not abuse the powers granted to them by Parliament. Specific legislative intent has largely been abandoned by proponents of ultra vires and with good reason. This theory is unsustainable because it lacks any empirical evidence in support of it. It is difficult to point to any statutory provision that specifically justifies the application of each head of judicial review. Forsyth has defended the ultra vires model in its general form, arguing that to abandon the ultra vires theory would be an attack upon Parliamentary sovereignty and would undermine judicial review. The basis for his argument is that, given Parliament’s omnipotence, it must be taken to authorise anything which it does not prohibit. If a minister, exercising a statutory power, were to publish regulations which were so vague that their meaning could not be defined with reasonable certainty, then the minister would be ultra vires, because it is implicit that Parliament never intends to grant the power to make vague regulation. However, according to Forsyth, if one attempts to found judicial review upon the common law, then the minister would be intra vires, because he has made regulations in exercise of his statutory power. Parliament must be taken to have granted the minister the power to make regulations, because there is no general presumption that Parliament prohibits them. If the courts declared the regulations to be invalid, that must be a challenge to Parliamentary sovereignty, because the court has struck down regulations which were made with Parliamentary authorisation.

Question 122

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Ultra Vires or Common Law? Challenges to Forsyth's argument

Answer 122

Forsyth’s argument is subject to two major difficulties. First, his presumption that Parliament has authorised anything which it has not prohibited simply isn’t true. Parliament may simply have no opinion on the particular matter and, in the absence of any legislative intent, it is entirely permissible for the courts to apply the common law. This is how the common law and statutes interact in other fields of law, so it is inconsistent to only apply the ultra vires model to public law. For example, there is no statute prohibiting negligent injury to one’s neighbour, yet this does not mean that Parliament can be taken to have authorised negligent conduct causing injury, and that the courts are therefore challenging Parliamentary sovereignty by creating and extending the common law tort of negligence. Secondly, even if Parliament can be taken to have a general intention that the powers granted by statute are to be used fairly, it is the courts that have true authority to establish the details of judicial review. This renders Parliamentary sovereignty purely formal, whilst the courts shape the doctrine behind a veneer of legislative intent. For example, prior to Anisminic v Foreign Compensation Commission, it would presumably have been correct to say that Parliament must be taken to have intended that powers could be validly exercised despite non-jurisdictional errors of law being made by the administrative body, yet after Anisminic, Parliament had changed its legislative intent. This is clearly an inaccurate description of legal development - in reality, the courts changed the common law concerning error of law to abolish distinctions between jurisdictional and non-jurisdictional errors; Parliament had not expressed any new intention, either implicitly or explicitly.

Question 123

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Ultra Vires or Common Law? Clear that basis of JR is common law theory

Answer 123

It is therefore clear that the basis of judicial review is the common law theory: judicial review is simply another product of the common law, like consideration or negligence. In the absence of a statutory provision to the contrary, the common law subjects the decisions of administrative bodies to judicial review if they fall below certain standards - for example, if the decision is illegal, irrational or procedurally improper. This does not mean, despite what Forsyth claims, that common law theorists deny Parliamentary sovereignty, they simply do not attempt to read legislative intent into statutory provisions where none exists. For example, the courts recognised that it was Parliament’s intention to exclude judicial review of the Investigative Powers Tribunal in Privacy International v IPT and Others. This does not rely upon any theory of general legislative intent, but the simple, constitutional principle that the common law is subject to statute; as Barber succinctly states, “Parliament’s statutes must be applied, but are supplemented and clarified by the rules of the common law.”

Question 124

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Application of Theory to the Cases

Answer 124

Despite the superior justifications of the common law theory as judicial review’s logical foundation, Lord Browne-Wilkinson held in R v Lord President of the Privy Council, ex p. Page that judicial review “is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and… reasonably.” Moreover, his Lordship states that, following Anisminic, “it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis”. These comments indicate a clear support for the ultra vires model, although this is not unanimous amongst the case law. In Council of Civil Service Unions v Minister for the Civil Service, the Secretary of State varied the rights of staff at GCHQ so as to prevent them from joining trade unions, relying upon the royal prerogative to do so. If legislative intent was the basis of judicial review, then it is impossible to see how the courts could undertake a judicial review of a decision which was not founded upon statute. However, Lord Diplock holds “I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.” Parliament’s general legislative intent can have no bearing on a power derived from the common law because it derives no authority from statute. Although every member of Parliament, if asked, would likely respond saying that they expect ministerial powers to be exercised reasonably and fairly, this alone is insufficient. “Simply because all members of the legislature believe a proposition does not render that proposition law.” Parliament must communicate its intent through statute in order to affect the law and, in the absence of statute, it can have no effect otherwise. It cannot be that some vague general intent is capable of prescribing limits to a power which derives its authority from the common law; one can therefore conclude that judicial review is founded in the common law.

Question 125

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Errors of Law and Fact

Answer 125

Following Anisminic and Page, the law is that any error in law will render a decision of an administrative body subject to judicial review. However, the position is far less coherent with regards to errors of fact. The distinctions that the law has drawn between errors of law and errors of fact demonstrates the fallacy that the ultra vires rests upon, because the statutes do not distinguish between factual and legal errors and such distinctions cannot easily be maintained. For example, a simple statute might enable a local authority to prohibit vehicles from entering a park, and the local council bans skateboards, purporting to exercise its statutory powers. If one wished to challenge this decision, it could be argued that the council had made an error of law by wrongly defining ‘vehicle’ in the statute. However, if the court wished to dismiss the claim, this could more easily be done by defining vehicle in broader terms and holding that it is a question of applying the law to a factual situation. Following E v Secretary of State for the Home Department, it would have to be shown, inter alia, that the fact or evidence which the council was mistaken about was uncontentious and objectively verifiable. It is open to a court, then, to classify an error as one of law or of fact, depending on the outcome it wishes to secure. Such a situation cannot be explained through general legislative intent, when one cannot predict how the courts will treat a statute without first knowing the facts of a case. Beatson argues that the “open textured nature of ultra vires means that in many cases it will not be possible to predict whether a given error will be jurisdictional”. However, it is unfair to point this criticism at the ultra vires doctrine alone; the common law theory would do nothing to reduce the uncertainty that abounds with regards to errors of fact. However, it would force the courts to acknowledge that, by continuing to extend the grounds of review to include errors of fact, just as they included all errors of law in Page, they are undertaking judicial activism, rather than upholding the intent of Parliament.

Question 126

What is the underlying logic of judicial review? How is that reflected in the case law on the reading for this week? Why has the fact/law distinction proved such a focal point? Conclusion

Answer 126

The common law theory offers an explanation of the underlying logic of judicial review - it is the application of common law restraints upon the decisions of administrative bodies, which can be displaced by clear legislative provisions to the contrary. The ultra vires doctrine is unsatisfactory and, although it continues to be referenced in the case law, faces a number of challenges which it cannot overcome. Amongst these is its failure to explain how distinctions can be made between errors of law and errors of fact, when no such distinction exists in the legislation.

Question 127

“A decade or so on from its heyday, the debate concerning the constitutional foundations of judicial review can now be seen to have been an irrelevance. On a theoretical level it largely failed to engage with the crucial question whether Parliament is sovereign, and on a practical level it did little to address how courts should actually decide judicial review cases.” Do you agree? Introduction

Answer 127

The theoretical basis of judicial review in English law continues to be disputed by a number of academics, although the relevance of this discussion are doubtful on both a theoretical and practical basis. Some scholars argue that the purpose of judicial review is to ensure that public bodies do not stray beyond the remit that is set for them by Parliament, and that judicial review is therefore derived from the legislative intent of Parliament. By contrast, others (most prominently, Craig) have argued that judicial review is founded in the Common Law and serves to protect the rule of law. However, it is largely irrelevant whether a judge relies on the ultra vires or the common law doctrine, because a court “can make the doctrine mean almost anything they wish” by either finding an ‘implied intent’ in an Act of Parliament, or claiming it is necessary to protect some conception of the rule of law.

Question 128

“A decade or so on from its heyday, the debate concerning the constitutional foundations of judicial review can now be seen to have been an irrelevance. On a theoretical level it largely failed to engage with the crucial question whether Parliament is sovereign, and on a practical level it did little to address how courts should actually decide judicial review cases.” Do you agree? Ultra Vires Doctrine

Answer 128

The traditional understanding of the ultra vires doctrine holds that, in judicial review cases, “the courts are applying the intent of the legislature.” When Parliament grants discretion to ministers or public bodies, it does so subject to certain conditions. For example, it is obvious that a public body set up to make immigration decisions could not make decisions that do not relate to immigration, because that authority was not granted to the body by Parliament. In addition, it is presumed that Parliament also intends for this power to be exercised in a certain way, so that the public body does not make irrational decisions, for example. On a theoretical level, assuming the doctrine to be true, it complements Parliamentary sovereignty well because it portrays judges as enforcing the will of Parliament and ensuring that public bodies do not exercise power in ways that they should not. However, the doctrine is inadequate in two regards: first, it entirely fails to inform judges of how they should decide a case and, secondly, it struggles with “internal tensions”, being used to justify conclusions that appear incoherent. The vacuous nature of ‘legislative intent’ is revealed by the historical development of judicial review. Judges have claimed that ‘the will of Parliament’ justifies outcomes that are entirely contradictory. For example, in Page, Lord Browne-Wilkinson held that Anisminic was authority for the proposition that all errors of law would be subject to judicial review, contrary to the previous distinction between jurisdictional and non-jurisdictional errors of law. It is difficult to sustain an argument that this change in the law was the result of a genuine change in Parliament’s intention; indeed, it is absurd to suggest that both Page and previous cases which maintained the distinction between jurisdictional and non-jurisdictional errors of law can be supported by the intention of Parliament, when no Act of Parliament was passed indicating a change in the legislature’s intent. In reality, there is nothing in any legislation which informs judges of when errors of law will be susceptible to judicial review, because the concept is a “judicial creation” which has received little input from Parliament. The ultra vires doctrine also fails to explain the attitude of the courts towards ouster clauses - provisions in Acts of Parliament which seek to immunise a decision of a public body from judicial review. One would have thought that, if the purpose of judicial review is to enforce the will of Parliament and Parliament includes a provision which (when read literally) excludes judicial review, then that would be the end of the matter. However, in Anisminic, the House of Lords held that the ouster clause in question did not apply to decisions of a public body which were void, and that judicial review was therefore necessary to first decide whether a decision was void or not. Of course, it can be argued that Parliament really did intend for the courts to interpret the provision in this way, or at least that Parliament accepted this interpretation by not legislating to correct the House of Lords following their decision, but these arguments are unsatisfactory. First, it seems ridiculous to suggest that Parliament included a provision which was intended to exclude judicial review only in the cases of decisions whose validity had been confirmed by a judicial review. Secondly, even if Parliament acquiesced and accepted the decision of the House of Lords after Anisminic, this does not change the nature of what happened in the case: Parliament attempted to exclude judicial review and the court refused to accept it, which inevitably entails reliance upon constitutional principles other than the sovereignty of Parliament.

Question 129

“A decade or so on from its heyday, the debate concerning the constitutional foundations of judicial review can now be seen to have been an irrelevance. On a theoretical level it largely failed to engage with the crucial question whether Parliament is sovereign, and on a practical level it did little to address how courts should actually decide judicial review cases.” Do you agree? Common Law Doctrine

Answer 129

By contrast, the common law doctrine states that the principles of judicial review are made by judges in order to hold the executive to account and comply with the rule of law. When Parliament grants authority to a public body to make administrative decisions, the courts apply controls which cannot be found in the enabling legislation. There must therefore be another justification for the application of judicial review. This does not mean that the courts will ignore what statutes do say about judicial review, so that if an Act of Parliament specifies particular criteria of review for a certain public body, these will obviously be used by the courts in judicial review. However, Parliament has not legislated to any great extent with regards to the law of judicial review generally, and the courts have developed the heads of review, the tests for their applicability and the intensity of their application on their own, without recourse to some obscure ‘will of Parliament’. Allan accuses supporters of the common law doctrine of shirking away from the logical consequence of the theory: that, in their view, common law must be prior to statute and, therefore, Parliament is not sovereign. Indeed, John Laws argued extra-judicially that, in a democracy which protects fundamental rights, it is necessary that democratic power may not be absolute. Forsyth has argued that the consequences of a judge effectively striking down an Act of Parliament for violating the common law rules upon which judicial review is based would “cast the judiciary into a political maelstrom from which it could not emerge unscathed”, possibly leading to the politicisation of judicial appointments or the undermining of public confidence in the judiciary. However, most proponents of the common law doctrine do not subscribe to these conclusions, arguing that Parliament is sovereign, but that judicial review is a product of the common law. On a practical level, the common law doctrine is no more helpful in offering guidance to judges about the proper limits of judicial review or the substance of its principles. The ‘rule of law’, just like the ‘will of Parliament’, is an inherently obscure and vague term with no agreed meaning. It offers no more explanation of how unreasonable a decision must be before it is irrational in the Wednesbury sense than simply saying that Parliament intended the degree of unreasonableness to be in a particular place.

Question 130

“A decade or so on from its heyday, the debate concerning the constitutional foundations of judicial review can now be seen to have been an irrelevance. On a theoretical level it largely failed to engage with the crucial question whether Parliament is sovereign, and on a practical level it did little to address how courts should actually decide judicial review cases.” Do you agree? Relevance of Debate

Answer 130

It is right to question whether this discussion should take place at all, especially given that the outcome appears to have no practical consequences for the application of judicial review by judges. It is noteworthy “that there is not one judicial decision, rule, or principle of administrative law over which the supporters and opponents of the doctrine disagree.” Unlike other debates about legal doctrines, this one is not concerned with the content of the law, nor do the doctrines provide a particular reason for judges to develop the law in a particular way. All the writers agree that judicial review is an important part of administrative law and are not seeking in any way to limit its application Therefore, the argument does seem to be a purely semantic one. However, Barber claims there is another reason for the significance of the debate. It is about how judges explain and justify their decisions to the public. Barber draws a comparison to the law of unjust restitution, where it was disguised for some time as being a ‘quasi-contract’, which led to the influence of contractual principles to the law and the imposition of unfair limitations to recovery on plaintiffs. Even though identical conclusions could have been reached by focusing on ‘unjust enrichment’, the style of reasoning indirectly influenced the outcomes of decisions. Yet, with regards to this argument, it is unclear how the differing doctrines could ever have an equivalent influence on the outcome of a decision. Although advocates of the ultra vires doctrine might argue that their view is more likely to accord with Parliamentary sovereignty and discourage the courts from striking down an Act of Parliament, or taking some other extreme step, Anisminic has already demonstrated that the ultra vires doctrine is effectively capable of rationalising such a decision. Therefore, it seems as if the doctrine favoured by a judge is not going to have an effect on his decision-making, directly or indirectly. Craig has also argued that the doctrine has consequences with regards to judicial reasoning. He argues that the ultra vires doctrine conceals the true reasoning of the court, by allowing a judge to explain away difficult distinctions with the ‘will of Parliament’. For example, rather than explaining why the courts have abolished jurisdictional and non-jurisdictional errors of law, the courts have been content to state that Parliament intends it to be so, concealing the real issues at stake, such as the balance of power between the judiciary and the executive, and Craig bemoans the lack of judicial discussion compared with that in the USA or Canada. However, the lack of reasoning given by judges is a problem distinct from which doctrine they choose to adopt; it is just as plausible, if a judge adopted the common law doctrine as the basis of judicial review, that difficult problems could be explained away because the ‘rule of law’ requires it. As discussed above, the concept of the rule of law is as empty and disputed as the meaning of legislative intent, and there is no reason to think that a change in doctrine would radically change the culture surrounding reasoning in judicial review cases.

Question 131

“A decade or so on from its heyday, the debate concerning the constitutional foundations of judicial review can now be seen to have been an irrelevance. On a theoretical level it largely failed to engage with the crucial question whether Parliament is sovereign, and on a practical level it did little to address how courts should actually decide judicial review cases.” Do you agree? Conclusion

Answer 131

The debate about the constitutional foundations of judicial review is almost entirely meaningless. Academics have gone to great lengths to find support for their own view and to point out the inadequacies of the opposing perspective, but it is difficult to understand why they have done so. The conclusion of their debate has no apparent impact on the application of judicial review to facts, the way the law ought to develop or the significant ways in which judges explain their decisions. The strength of an uncodified constitution is that it allows uncertain questions to remain unanswered. It is better that they focus their attention on disputes which will actually shape the direction of the law, than fight over a matter of mere semantics, in order to shape judicial review, whatever its constitutional basis might be.

Question 132

Q10(2017) -> “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review” (FORSYTH). Discuss. Intro

Answer 132

There are many issues with the above statement which encapsulates the inherent contradiction of the modified ultra vires (MUV) doctrine. On the one hand, Cristopher Forsyth is correct to point out that “no one is so innocent” to argue that the grounds of judicial review (which include error in law, procedural impropriety, irrationality and breach of Convention rights) are anything but “judicial creations” (Sir John Laws, Law and Democracy 1995). On the other hand, Forsyth immediately argues that there is not only some utility in subscribing to the MUV, but some pragmatic and deep constitutional necessity. This is wrong on both counts. The statement mistakenly presupposes that not adhering to the MUV doctrine somehow undermines the “proper constitutional position” of the judiciary. In fact, the proper constitutional position of the judiciary is to resist Parliament’s freedom to dispense with the judicially developed principles of judicial review. This resistance does not strictly entail a challenge on the principle of Parliamentary sovereignty itself but rather, as Dinah Rose QC advocated in the recent Supreme Court ruling in R (on the application of Privacy International) v Investigatory Powers Tribunal [2019], seeks to “explain its boundaries, and why the laws of a sovereign Parliament require an independent interpreter of unlimited jurisdiction to ensure those laws are faithfully implemented.” As such, Forsyth is guilty of perpetuating the myth of the UV doctrine, albeit the marginally improved modified form.

Question 133

Q10(2017) -> “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review” (FORSYTH). Discuss. 1. “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review”

Answer 133

Such an argument would constitute what Lord Woolf of Barnes argues in his 1995 article Droit Public – English Style as belief in a “fairy tale”. This “fairy tale”, described as “the central principle of administrative law” (Wade & Forsyth Administrative Law 1994), provides that the courts are only carrying out Parliament’s intentions when enforcing the limits that are found (expressly or impliedly) within statute. It can therefore be distinguished from the MUV, as advanced by Forsyth, where the latter has “not denied-indeed rather celebrated the creative contribution of the common law to the development of legal principles” (Allan Constitutional Dialogue and the Justification of Judicial Review). Closer examination of the judgments of Lord Steyn in Boddington v British Transport Police [1999] and Lord Browne-Wilkinson in R v Hull University Visitor, ex parte Page [1993], reveals some judicial support for the orthodox doctrine but also implicit acknowledgement of its limitations which supports Forsyth’s first claim that the judicial review stems from grounds other than the UV. In Boddington, B was charged with smoking on a train in breach of a regulation made by the rail provider and sought a collateral challenge in criminal proceedings. For the purposes of this essay, it is sufficient to examine Lord Steyn’s judgement, in which he reasoned “leaving to one side the separate topic of judicial review of non-legal powers exercised by non-statutory bodies, I see no reason to depart from the orthodox view that ultra vires is ‘the central principle of administrative law’”. In fact, Lord Steyn overlooked a seminal reason for “depart[ing] from the orthodox view” described by Wade & Forsyth, mainly that following the approach strictly would lead to a dichotomy between the conceptual basis for judicial review which could apply to bodies which do and do not derive their power from statute, even if the same heads of review apply to both. Succinctly put, “this dichotomy does little service to a rational system of public law” (Craig Ultra Vires and the Foundation of Judicial Review 1998). Another illustration of the orthodox doctrine’s limited approval can be found Lord Browne-Wilkson judgment in R v Hull University Visitor, ex parte Page [1993]. In this case, he held that the “fundamental principle of judicial review is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases… this intervention… is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and in a Wednesbury sense… reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting UV his powers and therefore unlawfully”. Lord Browne-Wilkinson anchors what the courts do in underlying legislation (“powers conferred on underlying assumption”). However, he readily acknowledges that reference must be made to “fair procedure” and “Wednesbury” reasonableness, which are undisputable judicial creations. In both cases, there is ambiguity as to whether these judges are endorsing the specific doctrine or using “ultra vires” as a synonym for “unlawful” without referring to the concept itself. However, in both cases, the courts acknowledge judicial creativity implicitly. As such, Forsyth’s first claim correctly discredits the orthodox UV doctrine.

Question 134

Q10(2017) -> “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review” (FORSYTH). Discuss. 2. but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review

Answer 134

Despite accepting that the grounds of judicial review are rooted in the common law, Forsyth has maintained that UV “remains vital to the developed law of judicial review” (Of Fig Leaves and Fairy Tales 1996). This is self-confessedly perpetuating a myth. In the same article, Forsyth compares the necessity of this myth to “the swimming costume on a crowded beach” which exists to “preserve the decencies” (Forsyth 1996). However, it rests on the misconceived “proper constitutional position of the judiciary” which, according to Forsyth, appears to be to parrot what Parliament intended. This is a flawed justification for a number of reasons. Firstly, whether such Parliamentary intention event exists has been challenged by Sir John Laws in his 2017 paper Statutory Interpretation – The Myth of Parliamentary Intent. The article swiftly dismantles the idea of an intention of a single entity, in the shape of the legislature: “it cannot work: a single intention can only be the possession of a single person”. Furthermore, the fall-back argument that an intention can be distilled from the sum of Parliament’s parts (its MPS), whilst “logically possible… in the real world it would never happen”. In practical terms, this means that even the aforementioned cases Boddington and Page, as well as cases such as R (A) v Croydon London Borough Council [2009] and R v Home Secretary, ex p Venables and Thompson [1998], where the courts appear to be reviewing executive action for compliance with standards which are laid down in legislation, the courts are imputing an intention in order to rationally satisfy what objectively appears to be the statute’s purpose. This distinction between intention and purpose is significant because it reflects an important divide between public and private law. As Laws LJ eloquently puts it, “[t]he interests of parties to a contract in the contract‘s correct construction is, entirely, to see their intentions vindicated. The interests of citizen and State in a statute‘s correct construction is, in part, to see that the statute fulfils a clear and proper governmental purpose within a proper constitutional framework and to identify what that purpose is.” Therefore, the courts‘ proper constitutional position is alongside Parliament, helping to “explain its boundaries” (Dinah Rose QC in Privacy International). Secondly, and turning to the recent ruling in Privacy International, there is no constitutional necessity for UV or MUV to “preserve the proper balance of power and the correct formal relationship between the judiciary and Parliament”. This claim is in direct conflict with Forsyth’s position and the claim by Allan in his 2002 CLJ article The Constitutional Foundations of Judicial Review, that the “the common law theorists cannot reasonably object to ultra vires, in its very modest "modified" version, while continuing to accept absolute parliamentary supremacy. In that sense, Christopher Forsyth was right to maintain that "weak" critics of ultra vires-those who do not explicitly challenge the sovereignty of Parliament-are "whether they intend it or not ... transmuted into 'strong' critics.” This is incorrect. We see discussion of this point in Privacy International, where the argument is advanced that “the laws of a sovereign Parliament require an independent interpreter of unlimited jurisdiction to ensure those laws are faithfully implemented”. The judgments ran all the way along the spectrum, from Lord Carnwath’s expression of doubt about the ability of Parliament to legislate to exclude judicial review to Lord Wilson’s bewilderment at the proposition that s. 67 (8) of the Regulations of Investigatory Powers Act 2000 was anything but pellucidly clear. For the purposes of arguing that the courts’ role is alongside Parliament, it is sufficient to look at Lord Carnwath’s discussion which reveals an impressively contextual approach to the foundations of judicial review. He opines that “the discussion needs to move beyond the legal framework established by Anisminic and the cases which followed it”, because although the nullity principle “is no unquestioned, its conceptual basis, 35 years on from O’Reilly v Mackman, remains obscure”. As such, consequences of illegality in any given case will depend on the striking of a balance between competing constitutional fundamentals. This is made brilliantly clear at paras 131-132 in which he rules that “[t]he critical step taken by this court in Cart was to confirm, what was perhaps implicit in some of the earlier cases, that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the 2005 Act), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected.” Therefore, the “proper constitutional position” of the courts is across the table in dialogue with Parliament, rather than subject to its whims or concealed.

Question 135

Q10(2017) -> “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review” (FORSYTH). Discuss. there is reason to question whether Parliament is in fact “free to dispense with the judicially developed principles of judicial review”

Answer 135

This limitation on its freedom is not an attack on the premise that Parliament is sovereign, as Allan does in The Constitutional Foundations of Judicial Review. Allan reasons that “the courts’ standard treatment of ouster clauses, exemplified by Anisminic, may be quite properly understood, therefore, as the consequences of a mode of interpretation dictated by the rule of law. But since there are constitutional limits to Parliament’s capacity to insulate the executive from judicial review – limits intrinsic to the polity as a constitutional democracy that embodies the rule of law – it is a mode of interpretation impervious to serious legislative contradiction”. Wade & Forsyth wrote that “in order to preserve [the] vital policy [of judicial enforcement of legal limits on administrator’s powers] the courts have been forced to rebel against Parliament”. In Jackson [2005], three out of nine Law Lords openly questioned whether Parliament could still be said to be sovereign in the orthodox sense. More recently, given Lord Wilson’s insistence that the ouster clause in Privacy International was “clear”, there is a strong case to lead such a challenge. However, in the Miller case, all the judges were emphatically orthodox (perhaps in fear of being labelled the very brand they were given: ‘enemies of the people’). In that case, Dicey’s famous dictum that Parliament could “make or unmake any law whatever” was cited, as was Lord Bingham’s remark in Jackson that “the bedrock of the British constitution is… the supremacy of the Crown in Parliament”. This limited freedom can best be understood as providing Parliament a very narrow gap within which it can oust judicial review. We can reconcile Privacy International with the sovereignty of Parliament if we reason that “clear” words are insufficient to oust judicial review. This is settled law, since according to Cart, only “the most clear and explicit words” will suffice. This would allow Parliament to scrutinise the clause more heavily and it would likely be struck out. As such, the courts have not shut the door on Parliament excluding supervisory jurisdiction; they have merely provided a slender gap. Therefore, we can say that Parliament retains its sovereignty if we understand sovereignty to mean it can “make or unmake any law whatever”. Narrowing the formula required to enact a suspicious removal of judicial scrutiny simply ensures that Parliament (which in such a situation would most likely indistinguishable from an aggressive executive) takes ownership of its actions, it does not deny Parliament the ability to “make or unmake any law whatever”.

Question 136

Q10(2017) -> “No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review” (FORSYTH). Discuss. Conclusion

Answer 136

This judicial resistance is a necessary and central manifestation of the “culture of justification” (Taggart The Scope and Intensity of Substantive Review) which characterises administrative law today. Endicott argues that the “core aim” of the judges’ job is “to impose the rule of law on public authorities” (Administrative Law) with comity. The UV, and even the MUV doctrine overlook that “comity” requires reciprocity between the legislature and the judiciary. This is a basic tenet of the separation of powers, without which Parliament could freely dispense with judicially developed principles of judicial review. As such, the UV and MUV models are not only descriptively unconvincing grounds for judicial review, but undesirable. Ultimately, the courts are the “guardians and interpreters” of the law and labour to eradicate the fig leaves which conceal underlying policy considerations. Dear Bruno, A really strong effort, well done. If you want to develop the argument further I’d push your critique of the second limb of Forsyth’s claim – do we really *want* a constitution where Parliament can just wipe out judicial review? Forsyth has never engaged with this question in a satisfactory way. I think considering Privacy International, Lord Carnwath at 100-101, then under the heading „Broader Context“ (114 – onwards) sheds some quite interesting light on these matters Well done for engaging with Privacy – it’s a really demanding case. Keep doing what you are doing, enjoy your options and best of luck in finals. Grade: 2:1/First