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Constitutional Foundations Notes

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Constitutional foundations of JR Introduction There is a good deal of literature concerning the 'constitutional foundations' of judicial review. Thus, TRS Allan has remarked "...It is often hard to understand, or share, the passion and excitement which this debate seems to generate." - TRS Allan Keep three main sets of issues in mind

1.1 The Nature of the Question: When we inquire about the constitutional foundations of judicial review, what exactly are we asking about? What gives courts constitutional authority to strike down unlawful executive action? What gives courts right in first place to determine what constitutes unlawful executive action? How do courts work out what constitutes unlawful action? What, if anything, constrains the courts when they do this? What is legal nature and source of limits upon executive power enforced by courts via judicial review? How are courts powers to be reconciled with statute conferring the executive power in question? How is the courts' role to be reconciled with the constitutional status of Parliament?

1.2 The Relevance of the Question:Does is matter and, if so, why?
Yes it matters

1. Relates to fundamental question like Plt sovereignty

2. Basis of JR may influence content or rules.

3. Rlt between basis of judicial review and effectiveness of ouster clauses?

4. Relationship between basis of judicial review and availability of collateral challenge No it does not matter

1. Purely theoretical.

2. Basis of review doesn't influence content of rules applied by courts.

3. Doesn't really affect who courts decide cases.

1.3: The answers to the question: What, then, are the constitutional foundations of judicial review?

The ultra vires model What is the ultra vires model?


The Rule: A public body which has been granted powers by statute, Order in Council, or other instrument, must not exceed those powers ('Courts will police the boundaries of the statute').


There are really two limbs of the doctrine:
* (i) the body must not exceed its jurisdiction in a narrow, technical sense
# E.g : Cambridgeshire City Council would exceed its jurisdiction and act ultra vires in this sense, if it purported to issue or refuse taxi licences for taxis in Oxford);
* (ii) a public body is also regarded as acting ultra vires if, in the course of doing something that is within its jurisdiction (in the narrow sense), it breaches one of the principles of good administration
# E.g. by acting improperly or unreasonably, disregarding the rules of natural justice, or fettering its discretion. Parliament (the 'donor' of the public body's powers) is presumed not to have intended its delegate to act contrary to these principles of good administration.


As well as justifying judicial scrutiny of administrative decisions, the ultra vires rule also marks the limits of the judicial role:
* Oliver 2000: "For the corollary of the rule that a body acts ultra vires if it breaches these rules of good administration is that a court may exercise its supervisory jurisdiction if, but only if, the body has acted ultra vires".
* UV doctrine thus posits a distinction between control of administrative action on the one hand, by the courts who exercise their judicial review jurisdiction to ensure that delegates of Parliamentary power remain within the scope of their delegated powers, and on the other hand control of administrative action on the merits which is the preserve of Parliament.

What commentators have called it?
Sir William Wade: The 'central principle of administrative law' Wade & Forsyth: Necessary and sufficient base of JR.
* Necessary: any ground of JR can be fitted into UV.
* Sufficient: it obviates need for further inquiry.

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