Justification of Judicial Review

Question 1

What are five criticisms of the “pure ultra vires” (legislative intent) school of justifying JR, made by the “common law” school?

Answer 1

1. Change over time: LI doesn’t explain how the grounds of JR have changed over time
2. Unrealistic: LI isn’t a plausible description of what the courts are doing, as there is scant guidance on LI in statutes, and Parliament is complex
3. Ouster clauses: LI doesn’t account for Ansiminic and the treatment of ouster clauses
4. Non-statutory powers: LI doesn’t account for the review of non-statutory bodies and powers
5. Vagueness: LI is too vague a concept and can justify almost anything

Question 2

What is the “modified ultra vires” theory of Elliot?

Answer 2

We assume that Parliament intended to legislate in accordance with the rule of law and interpret legislation accordingly; Only a strong indication otherwise can rebut this

Question 3

What is Forsyth’s main criticism of the common law theory of justifying JR?

Answer 3

If Parliament confers a power, then the decision-maker either acts within it or outside it

If we believe in Parliamentary supremacy, then if it’s within the scope, it’s ok, and if it’s outside it, it’s not

Question 4

What is Jowell’s criticism of Elliot’s modified UV theory?

Answer 4

Modified ultra vires is just an artificial a theory as pure ultra vires: both involve imputing an “intention” to Parliament, which is a complex and multifacted body

Question 5

What is Jowell’s theory of the justification of JR?

Answer 5

We assume that:
(1) Parliament should legislate in accord with the rule of law
(2) Courts should read legislation on the assumption that Parliament does legislate in accord with the rule of law

Question 6

What are the three schools of thought on the justification of JR outlined in the ULaw textbook?

Answer 6

Ultra vires theory: JR is justified by reference to legislative intent: any limits on DMs must have been impliedly intended by Parliament

Common law theory: JR is justified as a matter of common law: judges retain the power to limit the executive, whether Parliament intended these limits or not

Modified ultra vires theory: JR is justified because courts assume that Parliament intends for powers to be exercised in accordance with the rule of law - courts then need to interpret this to set out the more specific rules

There’s also Jowell’s theory: JR is justified because courts should assume that Parliament legislates in accordance with the rule of law, because Parliament should legislate in accordance with the rule of law

Question 7

What’s the key difference between the implications of Elliot’s modified ultra vires and Jowell’s theory of the justification of JR?

Answer 7

For Elliot, courts try to interpret statutes to be in accordance with the rule of law, but will not do so when the statute is irreconcilable with it

For Jowell, if the statute is totally irreconcilable with the rule of law, courts might strike it down, because the guiding assumption is not that Parliament generally does keep to the rule of law but that it should do so - the rule of law is more fundamental