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Theory Readings Notes

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Theory Constitutional review under conventional popular sovereignty model
 Democracy = a means of managing power relations to minimise domination o Does so by governance by consent of people — collective selflegislation — people author laws and then live under them
 BUT laws are in fact made by majority or their representatives o So minority require separation of powers to safeguard their interests
 That division of power is done according to constitution enacted by the people
— even a self-interested majority recognise possibility that will become minority & so enact checks on power o BUT implies that the 'people' have the right to bind themselves in perpetuity — as judges striking down legislation are not acting by authority conferred by the current people — and that would surely require originalist interpretations of the Constitution
 By jurisdiction o UK — no written constitution or popular motion conferring such power on the courts
 Except perhaps for distributive theory that judicial power originated in the King o France — Written constitution provides little support and courts have gone far beyond it o EU — Written constitution not enacted by popular vote but by negotiations between States Legal (Craig) Political (Tomkins) Constitutionalism Difference: How to hold the executive to account
 Political constitutionalism — political & institutional accountability — by parliamentarians, electors, political debate, questioning, investigation &
scrutiny o Transparency, democracy, participation & representation, deliberation through committees, consultation to obtain evidence of impact —
better suited to proportionality analysis o criticism of "juristocracy" — but not inconsistent with desire for substantive law that respects human rights & civil liberties
 Legal constitutionalism — accountability by judicial application of law o Justice, protection of minorities, human rights Role of courts under political constitutionalism
 Uses arguments against strong JR to undermine JR of administrative acts —
o To eliminate judicial evaluative exercises would undermine all adjudication in public & private law — interpretation of terms such as "inhumane & degrading treatment" is laden with value-judgments o Democratic deficit — executive power is delegated to civil servants who possess significant discretions, and deference is exercised by courts to extent necessary

o Reduction in JR = reduction in individual redress in the particular case, even if gov can be effectively controlled through other means
 Other redress mechanisms exist but eg to elevate ombudsman to same power as courts would create same objections o Would require exit from ECHR & HRA Rights & JR — Accepts judicially enforceable substantive rights only where o sufficiently narrowly defined & absolute — eg ban on torture
 Determination of meaning/content of a legal term rather than balancing policy matters o process issues (eg fair trial rights)
 Judges better trained to deal with procedural fairness —
extends by analogy to consultation processes o qualified evaluative methods that require proportionality are problematic — really just political problems dressed up as judicial solutions (eg freedom of speech) Administrative powers — conferred by so must be limited by law: Entick v Carrington —
o Should not engage in rationality or proportionality review
 But divide between purpose/relevancy &
rationality/proportionality is unclear — eg dismissal of teacher for hair colour is irrational hair colour is not relevant consideration
 IE just depends how a case is pleaded o BUT Royal Prerogative — some executive power is not statutory —
said to stem from the Constitution but in reality is a common law power given to the executive
 in Australia, where constitution is written o Permits courts keeping public bodies within their power — but in what sense? — links into ultra vires debate
 Narrow, pre-Anisminic JE (in different forms)
 Misuse of power
 Various principles of legality, incl LEs, equality, respect for rights o Permits courts to resolve ambiguity in power in favour of liberty —
principle of legality
 Craig — Not clear why this is so, if JR based on rights is impermissible Make findings based on evidence o Some evaluative judgments require evidence which is not usually before a court — judicial notice is a weak tool: eg ruling in Belmarsh that 9/11 constituted 'public emergency' (but striking down derogation from rights on basis that not 'strictly necessary), made without any evidence o Corner House — HL weighing public interest in continuing investigation of bribery public interest in avoiding Saudi threat of ceasing cooperation on intelligence, risking lives of citizens — no attempt to ascertain the level of such a threat  held decision of prosecutor to abandon investigation was lawful

Role of Parliament in Political Constitution
 Take care in conferring powers on executive
 Adopt thorough scrutiny measures, consultation, etc
 Courts should refer questions back to parliament — as under HRA —
essentially Courts another layer in the QA process o Should extend HRA incompatibility declarations to findings as to scope of government powers — ie where not necessary as under Terrorism legislation, or where prerogative executive power too broad

UK The need for justification
 All other exercises of power (legislative & executive) stem from a higher authority High Court does not, provided we reject the declaratory theory of common law o IE courts have the power they say they have: Sir John Laws
 Necessary outcome of system where one institution has to be charged with determining the limits of power o BUT courts are restrained by convention, precedent, need to reason normatively & wording of constitution where applicable, opportunity to reason inter partes, etc
 And relies on conception of power as factual in nature, divorced from the law
 Courts have only the power the constitution gives them o Required by the rule of law & to avoid arbitrariness
 In JR, courts transgress onto executive functions (and potentially legislative functions, which traditionally ensure proper conduct of administration) Essay plan
 Ultra vires rule cannot account for the positive public law as it is today o Possibly legitimate to imply certain procedural restrictions but…
o Supervision of non-statutory powers o Post-Anisminic & Page
 Ultra vires rule is the only one supported by UK Constitution
 Therefore everything in UK post-Anisminic is desirable but wrong — urgently need to put on constitutional footing The ultra vires rule
= court my intervene if and only if administrative action ultra vires
 Parliament is sovereign
 To administer law, it gives authority to executive bodies
 Those executive bodies are subject to the constraints on the power given to them:

1. Content — must not commit jurisdictional error (in the narrow sense in Anisminic) — making decision not permitted to make

2. Manner — must not make decision in a manner outside implied limits on power conferred by Parliament ("broad" JE) = incompatible with good administration
 Includes o Procedural unfairness o Relevant/irrelevant considerations o Bad faith o Wednesbury unreasonableness
 Theoretically rebuttable — but courts reluctant to dispense with them Consequences of ultra vires basis for JR
 If within jurisdiction in narrow sense, prima facie lawful — restrictions in broad sense must be developed with this in mind
 Courts could not substitute judgment for opinions of agency Common ground between critics & advocates of ultra vires theory
 Basis for narrow JE o Public bodies should be kept within sphere of authority o That sphere is defined with reference to the legislative source of power "Modified ultra vires"
 Concedes that o Legislature rarely has any positive intent as to content of JR o Courts can legitimately review exercises of non-statutory power
 But maintain that ultra vires theory necessary to maintain parliamentary supremacy
 Parliament intends that powers conferred be exercised in accordance with rule of law — impossible to have specific intention so leaves to creativity of courts o Requirements of rule of law / constitution shift and so does JR
 Possibilities of relationship between legislative intention in conferring power and judicial review a. Positive intention that no implied limits on power b. Positive intention of detailed implied limits attributed by courts c. Can only grant subject to condition of good administration — implies constraint on powers of Parliament d. Either grants or withholds authority to act unreasonably —
requirements of rule of law create presumption that such authority is withheld i. Favoured by modified ultra vires theorists e. No relationship — common law supplies principles of good administration i. Favoured by common law theorists Arguments against the ultra vires rationale Narrow conception of JE — too indeterminate

All determinations of law are a precondition to exercise of a statutory power
— Various approaches to establishing JE error within jurisdiction o Limited review o Collateral fact doctrine
 ie including where conditions to exercise of power misconstrued as well as disregarded o Extensive review — all errors of fact Ultra vires provides no particular support for any of these — therefore loses potency as legitimising force for any particular one — mere fig leaf giving ex post legitimacy, but no guidance ex ante

Broad conception of JE — "Implied limits" are a fiction Criticisms of ultra vires theory "Weak" criticism
 Limits are judicial, not legislative constructs — cannot sensibly be implied from broad legislation o Generally on exercise of discretion — eg reasonableness, relevant considerations
 Illustrated by shift of limits over time — eg legitimate expectations, possible recognition of proportionality — even more tenuous to base on shifting will of parliament o Alternative would be to say that no exercise of power under legislation enacted prior to Coughlan gives substantive LE — unlikely o Elliot supports with "living tree constitutionalism" which he says is "widely accepted"
 Especially since Anisminic — ouster clauses show clear parliamentary intention that decision not subject to JR o Holding that ouster clauses do not protect decisions that are nullities cannot be supported by ultra vires theory
 BUT JR can be ousted in other more limited ways—
 Interesting to reconcile with short limitation periods —
effectively ousting JR
 R v Wicks (1998) — can challenge criminal conviction under secondary legislation on the basis that it is invalid
— but subject to contrary indication in the primary legislation o Essence of decision more readily explained on basis that courts not willing to allow restriction on access to JR — drawing on Constitutional principle
 Similar to Australia — Plaintiff S10
 Even if could be sustained for Anisminic on the basis of JEnon-JE distinction — impossible post-Page (abolition of distinction) "Strong" criticism
 It follows from weak criticism that parliament is not actually supreme —
suggests power to strike down statutes o Claim to democratic legitimacy of governments does not entitle them to abolish fundamental freedoms

Lawfulness of administrative action therefore not ultimately determined with reference to implied parliamentary intent — higher law is enforced by judiciary Where sovereignty reposes in collective body, there must be rules for determining its will — those rules are logically prior to the sovereign o Harris v Minister of the Interior (South Africa, 1951) (South Africa Act required 2/3 majority of both houses on certain matters incl removal of names from voting roll — Parliament passed Act removing blacks from roll without compliance  invalid — "Parliament" only expresses its will when sitting in 2/3 majorities as required — therefore did not express its will in passage of act)

Responses to weak criticism Consequential response — danger of ouster clauses
 Rejection of ultra vires would result in greater operation of ouster clauses —
ie courts will be unable to circumvent them as in Anisminic
 Illustration from South Africa: Staatspresident en andere v United Democratic Front (1988) o State President declared state of emergency under a 1953 Act — then made regulations — including banning journalists from "scenes of unrest" —
o "unrest" challenged as being so vague as to render regulation void o regulations made under Act in state of emergency protected by ouster clause HELD, regulations valid o even if void, still made under Act so protected by ouster clause o Majority — rejected ultra vires doctrine o administrative action (incl subordinate legislation) can be challenged for vagueness as freestanding ground o But vague ≠ ultra vires so still made under the Act, protected by ouster clause o Anisminic (decision made in breach of natural justice not made under the provision — so not protected by ouster clause)
 BUT perhaps without constitutional foundation parliament should be able to enact ouster clauses — undesirable but product of legislative supremacy o cf Craig v SA (Anisminic not accepted) and Plainiff S10 re ouster clauses being unconstitutional under Australia's written constitution o The only reason this proposition is true is due to creativity by judges in Anisminic — no intrinsic value in the principle itself o Anisminic is even more tenuous because rests on procedural ground for taking ultra vires
 BUT in any event not the necessary consequence of abandoning ultra vires basis for JR o Anisminic itself rests on the strained principle that parliament didn't intend ouster clauses to oust for review of JE (where decisions are nullities) o Better explained by reference to higher constitutional principle &
protection of JR

o In fact the ultra vires justification is more likely (although hasn't) to result in powerful ouster clauses — it only avoids that consequence by considerable stretching Direct response — meeting the criticisms
 It is reasonable to impute limitations to implied will of legislature: o eg that subordinate legislation not be so vague as to be incapable of understanding o But procedural fairness etc?
 Alternatively, administrative law developed by judges but implicitly accepted by legislature's failure to intervene —
o ie implied intention was to confer powers to be exercised fairly — and that would be interpreted by the courts — Ex parte Page per Lord BW o No infraction of legislative supremacy to leave interpretation to judiciary —
 meaning of legislative terms left to judiciary, which can limit executive power in the strict ultra vires sense
 follows that suitable (and inevitable) to leave interpretation of implied limits on power to judiciary
 BUT this reduces ultra vires theory to vanishing point — the only form of "legislative intent" is implied approval of judicially developed concepts o On all fours with common law theory, which also recognises that the legislature could intervene o Also difficult to imagine parliament intervening —
 generally by passing statute generally limiting judicial review /
excluding proportionality
 in specific areas where favour opinion of specialist tribunal to generalist court — eg Anisminic Response to "strong" criticism Cannot attack ultra vires justification without attacking parliamentary supremacy
 Forsyth — Constitutional foundation — parliament either prohibits or permits o Manifestation in liberalism — what is not expressly prohibited is permitted o = grant of power to Minister either permits or prohibits certain actions o = Parliament either permits or prohibits denials of procedural fairness, vagueness, etc o AND not possible to challenge acts authorised under legislation without challenging Parliament's power to authorise o if there is another intervening source of prohibition — objection posits it is the CL — it is inconsistent with the ability of the parliament to authorise certain actions
 Craig — common law restricts exercise of executive power and parliament can limit that common law with legislative restraint o EG passage of ADJR Acts in Australia
 Laws — just because Parliament can authorise or prohibit anything, does not follow that all authorities and prohibitions come from parliament

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