Judicial review

Question 1

Traditional ultra vires

Answer 1

Wade; Forsyth

• Wade: parliamentary sovereignty is the basis of judicial review: courts are merely giving effect to the constraints intended upon executive power by Parliament.
• absolute conception of Parliamentary sovereignty (Dicey)
• strong formulation of the separation of powers: the courts are only justified in intervening where the executive acts outside its sphere of power.
• judicial review “consists of nothing other than an application of the law itself and the law of Parliament to boot” (Baxter)

Question 2

Traditional ultra vires - accuracy

Answer 2

• GCHQ and Bancoult affirm that royal prerogatives are subject to judicial review. But Parliament never intended to confer power.
• If Parliament has not said that it is withholding from decision makers the power to act contrary to principles of judicial review, how do we know it meant to withhold such powers? (Laws)
• The courts have fiercely resisted Parliamentary attempts t prevent judicial review (Anisminic).
• The ultra vires model becomes a “fig leaf” (Craig).

Question 3

Common law theory

Answer 3

Craig; Oliver; Laws

• Views judicial review not as a statutory creation but as rooted in the common law. The courts are enforcing common law principles.
• But is this unconstitutional in relation to Parliamentary sovereignty?
• Laws: defence on the basis of the creation of a vacuum. But note dicta in Pierson rejecting this.

Question 4

Constitutional ultra vires

Answer 4

Elliott

• Places ultra vires in constitutional setting.
• Elliott argues that the general intent of Parliament is assumed to comply with the rule of law: the rule of law is thus impliedly respected unless expressly overturned.
• This reconciles the common law theory and the traditional ultra vires theory respecting Parliamentary sovereignty.

NOTE:

• Craig argues nonetheless that PS is not the right basis. Judicial review is grounded in the common law.
• Jowell: also prefers the common law model.

Question 5

Allan’s theory

Answer 5

• Allan rejects the notion of Parliamentary sovereignty itself.
• He argues that the rule of law and other judicial review grounds govern both the delegation of power and the court’s interpretation.

Question 6

Increasing scope of review

Answer 6

• prerogatives: existence/extent (De Keyser); exercise (GCHQ; Bancoult)

However, note deference in Abbasi and Al Rawi.

• de facto powers: Datafin - if the institution is performing a public function, they will be subject to judicial review.
• devolved legislation: AXA - only procedural grounds.

Question 7

Increasing scope of review - desirable?

Answer 7

Arguably, judicial review should not stretch too far and there should remain deference.

Irvine advocates deference on the basis of: institutional competence and democratic legitimacy.

Question 8

Appeal and Review distinction

Answer 8

Lord Ackner feared the proportionality principle would erode the distinction between appeal (merits) and review (legality and process).

• Originally: Wednesbury unreasonableness.
• Following the ECHR, there arose an increasing amount of analysis on the proportionality ground (Daly; Quila).
• Taggert argued that proportionality should be reserved to rights-based cases.
• Craig argued that proportionality should be the main principle - although in varying degrees of intensity.

Note that Allan is very critical of the concept of justiciability as it undermines the rule of law.

Oliver argues for the fact that some areas are not for the law to rule upon (see Chandler; Blackburn where there were refusals of judicial review).