W6 - Constitutional Justification for JR

Question 1

Relationship between JR and the RoL

Answer 1

• RoL (Dicey)=
  1. There should be no arbitrary or retrospective laws.
  2. There should be equality before the law.
  3. Public bodies must genuinely exercise discretion - no ‘fettering’
  4. Human rights (Lord Bingham)

vs JR purposes:

1. To keep the executive with the bounds of the law.
2. To ensure that we the people are protected from any abuse of power by the executive.

• ‘‘principles of administrative justice are rooted in the constitutional bedrock of the rule of law’ (Elliott) => link to JR ground of illegality (JR gives practical effect and enforcement of these standards)
• ‘judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not, in a word to uphold the Rule of Law’ (Vijayatunga)

Question 2

JR and Parliamentary Supremacy

Answer 2

Justification = means to uphold will of P by ensuring gov bodies act in accordance with statutory powers (key to JR ground of illegality)

BUT growth to cover non-statutory bodies and extension of some grounds eg enforcement of natural justice not expressly enshrined in legislation => JR a creation of the judges themselves? => limiting the power of the legislature?
(“Judges now routinely use judicial review to rewrite the effects of a law that Parliament has passed” - David Blunkett)
=> Controversial if judiciary encroaching on leg as public policy should be decided by democratically-elected P => role of political bias in judiciary played out through JR?

BUT
if P wanted to deny someone a fair hearing, they would expressly say so => if an Act is silent on the issue, the courts are right to assume that Parliament would have wanted the individual to be given a fair hearing (=> approach acknowledges and is consistent with PS)

Question 3

JR and Separation of Powers

Answer 3

JR as check/balance on the executive- ensuring it doesn’t abuse its power and position
Also imp role in limiting the role of the courts - courts limited to reviewing the process (not content) of the decision and can only label it invalid (not make decision themselves)

Question 4

Role of judiciary as protector of ind rights and freedoms

Answer 4

More limited as no written constitution (=> no right to declare leg to be unconstitutional)
vs US Marbury v Madison (US SC ruled it had the power to strike down unconstitutional leg); paved the way for development of civil rights movement by declaring segregation in schools to breach Equal Protection Clause of 14th amendment and => unconstitutional (Brown v Broad of Education of Topeka)
=> contrast to UK where courts can’t question any statute (only secondary leg) and cannot consider merits of decision just its legal basis
BUT s4 HRA - declarations of incompatibility w ECHR equivalent power? Likely no - still v limited compared to US

Question 5

Criticisms of JR

Answer 5

1. Inexact science to talk of the will of Parliament - not a human entity and the changing members => P’s will is not constant
2. P has not been involved in the making of rules of natural justice- courts would never have made these rules if they were truly motivated only by a concern to uphold the will of Parliament.
   BUT- justification true => courts would have accepted that it was for Parliament, not them, to make law
   => courts are motivated more by a desire to retain their involvement in any decision-making process than by any genuine obligation to uphold the will of Parliament
3. Courts defied the will of P in respect of complete ouster clauses (Anisminic) eg Asylum and Immigration Act 2004
4. P does not create prerogative powers – reviewing decisions based on ‘justiciable’ prerogative powers is not upholding P’s will
   => Extension for JR to include prerogative powers shows Parliament’s will is not the primary motivation behind the development by judges of judicial review (as P has never played any role in the creation of prerogative powers)
   => desire is not only to retain, but likely to increase, judicial involvement in any decision-making process

Question 6

Constitutional justifications for JR

Answer 6

RoL; SoP; PS

Question 7

Academic justifications for JR

Answer 7

Ultra Vires theory vs Common law theory vs Modified Ultra Vires theory (Guissani)

Question 8

Ultra Vires Theory

Answer 8

Court may intervene when a body acts ultra vires (beyond the powers) conferred by legislation
=> acts within their powers (intra vires) are outside the court’s ambit => operates with PS

BUT (Craig):

1. Developments such as proportionality (Bank Mellat - courts straying into merits of decision? BUT doing what P said in HRA) and legitimate expectation cannot be attributed merely to legislative intent
2. If legislative intent was the justification for jr, it would not explain the court’s response to attempts by P to exclude jr; or application of jr principles to bodies who do not have statutory power but eg are exercising common law power under the prerogative

‘JR concerned … with decision-making process’- guilty of usurping power if that restriction is not observed (Evans)

Question 9

Common Law theory

Answer 9

Emphasizes jr being a product of common law (grounds developed by Lord Diplock in CCSU)– does not dispute the authority of P but argues that the grounds for jr are judge-made (justification lying in principles of good and fair administration)
BUT puts too much emphasis on the role of the judiciary, justifying judicial law-making in way that could contravene the SoP/PS

Question 10

Modified Ultra Vires theory

Answer 10

P has general interest in granting discretionary power and this should be exercised in accordance with the rule of law
=> judges, in exercising powers of jr, are acting in accordance with that general intent (Forsyth and Elliott)
- purposive approach => courts go beyond literal meaning to achieve what they perceive to be the aim of the statute (use of Hansard to infer intention as a statutory interpretation - Pepper v Hart => intention of exec is paramount)

Question 11

Justifications for limiting PS

Answer 11

Jeffrey Jowell in analysing Jackson -

1. Legitimacy:
2. Hypothesis of Constitutionalism

Question 12

Legitimacy

Answer 12

Legitimacy of P rests upon P’s representative and accountable features – laws that go against this would degrade those features and => negate the basis of that legitimacy and undermine the very condition upon which P’s claim of supremacy rests (‘based on assumption that P represents the people whom it exists to serve’- Lord Hope)

Question 13

Hypothesis of Constitutionalism

Answer 13

JR, ordinary role of courts and fundamental rights (eg free expression) as “building blocks of democracy [which] necessarily permeate any democratic constitution” => possible for judiciary to override an act of P
“rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” (Lord Hope)