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Administrative Law: Foundations of Judicial Review. 1 Introduction: What is the constitutional basis of Judicial Review?
There is a good deal of literature concerning the 'constitutional foundations' of judicial review. In these lectures, we will address three main sets of issues.The nature of the question. When we inquire about the constitutional foundations of judicial review, what exactly are we asking about?
What gives the courts constitutional authority to strike down executive action?
o What gives them the right to determine what action is unlawful?
o How do courts work out what action is unlawful?
o What, if anything, constrains the courts when they do this?
o What is the legal nature and source of the limits upon executive power enforced upon the courts by judicial review?
o How are these powers reconciled with statute and constitutional principles such as sovereignty?
The relevance of the question. Does is matter what the constitutional basis of judicial review is---and, if so, why?
oo??
o??

Yes: It relates to fundamental Qs such as parliamentary sovereignty. Basis of JR might influence the content of the rules applied by courts. Relationship between basis of JR and the effectiveness of ouster clauses?
Relationship between the basis of JR and availability of 'collateral challeneg'?
NO: Purely theoretical debate. Basis of review doesn't influence the content of rules applied by the courts. Doesn't really affect how courts decide cases. The answers to the question. What, then, are the constitutional foundations of judicial review?
o

There??

are competing answers to the question. UV model. Modified UV model. Common law model. JR as a 'constitutional fundamental'.

2 The ultra vires model

2.1 What is the ultra vires model?

The principle is an attempt at justifying Judicial Review of executive acts and decisions. 'Courts may intervene whenever a decision maker acts ultra vires - that is, 'beyond the powers' conferred by legislation - while intra vires acts are lawful and unimpeachable. Thus the principle provides a powerful justification for

the exercise of supervisory jurisdiction, because it argues that courts are only carrying out parliament's intentions when enforcing the limits that are found (expressly or impliedly) within statute. Note the following points about the ultra vires model:The 'central principle of administrative law': Wade and ForsythKey question for court: is decision within conferred authority?

The key question is whether the administrative act or decision under challenge within or outside the authority conferred upon the agency by parliament through the medium of the relevant statute.But how is the court to answer this question?

Through the interpretation of statute - interpreting the legislation in order to determine the extent of the agency's power. W&F: Where the empowering act lays down limits expressly, this just involves construing statutory language and applying it to the facts.e.g. 'Land may be taken by compulsory purchase, provided it is not part of a park'. The court need only determine whether the land is part of a park and decide accordingly. This is uncontroversial - a decision maker's decision to purchase land in Hyde Park could be struck down as ultra vires.

But where an act confers discretionary power on a decision maker, the question is not so simple.e.g. 'Land may be taken by compulsory purchase, providing the Minister doesn't think it is part of a Park'. Taking the statutory language literally, if the Minister states he is of the opinion that Hyde Park isn't a park, the court in applying the statute could not say that he is operating outside of the confines of his jurisdiction. However principles of good administration require that there can be no malpractice of this kind. The court will intervene and determine the decision to be ultra vires if it was taken unreasonably, in bad faith, or on no proper evidence - that is the developed grounds of judicial review. This can only be achieved through the art of statutory construction. It is presumed that parliament did not intend that such abuses could take place, so certain safeguards against abuse are implied within the act.

As with substance - whether discretion has been exercised UV - so with procedure, too.2.2

e.g. It is assumed that parliament when conferring power intends that it be used fairly and in line with due consideration of the rights and interests of those that may be adversely affected. This means judges read all statutes as having implied terms relating to, for example, procedural fairness. Parliament effectively legislates against a background of pre-made judicial principles pertaining to fairness - and in creating these principles, judges take parliaments agreement for granted.

What are the ultra vires model's attractions?

Although, as we will see, the ultra vires model has been heavily criticised---to such an extent that it does not, in its unreconstructed form, enjoy any serious support amongst commentators---it does have certain attractive features. First, it enjoys a degree of judicial support---although it is certainly arguable that judicial reliance upon the rhetoric of 'ultra vires' does not necessarily imply thoroughly

thought-through support for the ultra vires model. See, for example, myriad references to 'ultra vires' in the speeches in Boddington v British Transport Police [1999] 2 AC 143, and, in particular, Lord Steyn's comments (at 171): Leaving to one side the separate topic of judicial review of non-legal powers exercised by non statutory bodies, I see no reason to depart from the orthodox view that ultra vires is "the central principle of administrative law" as Wade and Forsyth ... described it. Note also Lord Browne-Wilkinson's comments in R v Hull University Visitor, ex parte Page [1993] AC 682 at 701: The fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases . . . this intervention . . . is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense ... reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully. He anchors what courts do in underlying legislation: 'powers conferred on underlying assumption. But there is ambiguity as to whether these judges are endorsing the specific doctrine - or just using 'ultra vires' as a synonym for 'unlawful' - without actually referring to the concept itself. Secondly, in some (but, as we will see, not all) circumstances, the ultra vires doctrine seems accurately to capture what is going on, in terms of courts reviewing executive action for compliance with standards which are laid down, or otherwise apparent from, the legislation---and that seeking to explain what the courts are doing in any other way would be unconvincing. There are clearly many instances of the courts following the ultra vires doctrine - or at least doing what the doctrine would tell them to do, if they were following it. Consider, for instance, the following cases:R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (...). The question was whether the claimant in the case was a child. The supreme court said that it was within their jurisdiction to decide on whether C was a child. This is a clear example of a court deciding on the legality of administrative action with reference to a statute - they are following, therefore, the kind of process that the ultra vires principle says JR is all about.Lloyd v McMahon [1987] AC 625

Lord Keith decided that oral hearings were not necessary before statutory auditors issued ceterficates of a penal nature to councillors by reference to the lack of an explicit provision for it within the statute - noting that explicit provisions had been found in other similar statutes. The case demonstrates a clear link between what the court decides and what the statute says - applying the thinking of the ultra vires principle.R v Secretary of State for the Home Department, ex parte Venables

Home Secretary set the tariff period of child murderer Jon Venables, on a once and for all basis. It was held that in doing so, the minister was acting unlawfully - the statute

imposed a duty to have regard to the welfare of the child or young person - requiring ongoing review of the tariff period - not setting once and for all. He was acting ultra vires. This is not, however, to suggest that all instances of judicial review can readily be related to the terms of the relevant legislation. This point is developed below. Thirdly, viewed from the perspective of judicial politics, the ultra vires model is highly convenient:Judges as 'modest underworkers': Cotterell, 'Judicial Review and Legal Theory' in Richardson and Genn (eds), Administrative Law and Government Action (Oxford 1994) at 16

Cottrell suggests that the judges play a role as 'modest underworkers'. The implementation of parliamentary intention simply protects judges against charges of activism or judicial supremacism.'...[T]he logic behind the doctrine provides an inherent rationale for judicial review ... The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot': Baxter, Administrative Law (Cape Town 1984) at 303.

Judges by employing the theory are cloaking judicial review under parliamentary sovereignty. They aren't just implementing the will of parliament, but the will of sovereign parliament. Fourthly---and, according to some accounts, most significantly---the ultra vires model provides a way (indeed, the way) in which judicial review may be reconciled with parliamentary sovereignty. This point is related to the third, but whereas the third point is concerned with the implications of judicial review from the perspective of judicial politics, the fourth argument is concerned with the implications of judicial review from the standpoint of fundamental issues of constitutional architecture. Because the fourth argument has proven to be pivotal in the debate about the foundations of judicial review, we need to consider it in some detail.

2.3 The parliamentary sovereignty argument

There is a 'positive aspect' to the argument: courts are implementing the sovereign will of parliament, making JR legitimate. But there is also a larger, bolder claim - the 'negative aspect'. This says that JR is only legitimate because courts are implementing the sovereign will of parliament. Ultra vires is therefore the only way of reconciling JR with sovereignty. The nub of the parliamentary sovereignty argument---which holds that ultra vires is imperative if judicial review is to be legitimate in the face of legislative supremacy---
was set out in the following terms by Forsyth, 'Of Fig-Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' [1996] CLJ 122 at 133-4: The analytical difficulty is this: what an all powerful Parliament does not prohibit, it must authorise either expressly or impliedly. Likewise if Parliament grants a power to a Minister, that Minister either acts within those powers or outside those powers. There is no grey area between authorisation and the denial of power ... [T]o abandon ultra vires is to challenge the supremacy of Parliament. Forsyth makes two key claims - his 'analytical difficulty'.

?

Intra vires and ultra vires as mutually exclusive concepts - 'there is no grey area'.
? Intra vires and ultra vires are collectively exhaustive - a decision can't be anything but UV or IV. The court therefore can intervene where there's power used UV, but it would be constitutionally improper to do so where the power is used IV. Forsyth further developed this argument in 'Heat and Light: A Plea for Reconciliation' in Forsyth (ed), Judicial Review and the Constitution (Oxford, Hart 2000). Consider the following example, which may help to illustrate Forsyth's argument: Legislation authorises the Minister to grant planning permission for 'major infrastructure projects'. In (purported) exercise of this power, the Minister grants permission for the construction of: i. a new restaurant; and Not a MIP, therefore taken outside of the explicitly conferred power. ii. a new airport, but in a procedurally unfair manner. This is not authorised by parliament because of an implied term requiring procedural fairness. Parliament could not have intended that the power be possible to exercise unfairly. According to the ultra vires doctrine, both decisions will be unlawful. But we need to think about the following questions: i.

Why will each decision be unlawful according to the ultra vires doctrine?

ii. Why does Forsyth contend that the courts will only be justified in striking down the decisions if they are ultra vires? Because if the decision is not taken UV, it must have been taken IV - and wouldn't therefore be constitutionally legitimate to strike down.

3 Criticisms of the ultra vires model

Criticism of the ultra vires model is not hard to come by---and much of it is compelling. The criticisms take two main forms, which reflect the two principal claims of ultra vires theorists concerning, respectively, the explanatory power and the constitutional necessity of the ultra vires model.

3.1 Criticism I: The ultra vires model lacks explanatory power

The central point here is that (so it is said) it is not believable that the courts' task in judicial review cases is simply one of statutory interpretation. As Laws, 'Law and Democracy' [1995] PL 72 at 78-9 puts it: In the elaboration of [principles of judicial review] the courts have imposed and enforced judicially created standards of public behaviour ... [T]heir existence cannot be derived from the simple requirement that public bodies must be kept to the limits of their authority given by Parliament. Neither deductive logic nor the canons of ordinary language ... can attribute them to that ideal, since ... in principle their roots have grown from another seed altogether ... They are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig-leaf to cover their true origins. We do not need that fig-leaf anymore...

The theory can't really explain what's going on - is it really believable that the courts are genuinely trying to discern what parliament intended when they wrote the statute?
Critics say that clearly something more is going on - Judges may be clever, but not enough to infer the entire law of JR from, very often, parliamentary silence. Most statutes don't discuss the issues that come up!
There are cases that clearly turn on parliamentary intention - Croydon, Venables. But what about other grounds of judicial review - Wednesbury unreasonableness, substantive legitimate expectations etc - that surely can't be directly read from statutes. Can we really get from the statute to the individual grounds of review? The basic 'fig leaf' argument is that claiming that all grounds of JR are intended by parliament is mere pretence. From this, a series of more specific criticisms follow (on which see Laws, 'Law and Democracy' [1995] PL 72 and Craig, 'Ultra Vires and the Foundations of Judicial Review'
[1998] CLJ 63):Ultra vires as a 'fig-leaf' (Laws)

Realistically we know that the law of JR is law of judicial creation - like tort or contract. The wider significance is that: a. Judges shouldn't be allowed to hide behind such pretence; and b. In doing so they escape justifying their development of grounds of review - claiming that they are simply effecting parliament's intention.Development of judicial review over time (Craig)

This is a body of law that has grown up in a very short period of time. Admin is a very recent creation. Furthermore the content of the law is ever changing and not static - a. New grounds emerge; and b. Existing grounds (e.g. Wednesbury) are developed. If the UV view is to be believed, this has happened because parliament intended it that way. But how can judges just divine this parliamentary intention? Critics say that these are actually changes that judges have authored - as judges were authors of the grounds of review in the first place.Ouster clauses (Anisminic v Foreign Compensation Commission [1969] 2 AC 147) (Craig)

Held, review of wrong determinations was not prohibited by the ouster clause - they were not determinations. Critics of the UV doctrine say that 'you can't have your cake and eat it'. Parliament seemed very clearly to have the intention to prohibit review of the body's decisions. How can you say that the court were only giving effect to the will of parliament by seemingly very clearly undermining it.Judicial review of non-statutory power (on this point, see, in particular, Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] PL 543) (Also Craig)

JR doesn't only apply to statutory power. It has now been rolled out to prerogative (GCHQ) and prerogative (Datafin, Takeover Panel) powers. How can the UV doctrine account for this? There is no statute to interpret. At the very least, this criticism suggests that UV is an incomplete explanation. Perhaps though this demonstrates that it is flawed, and should be rejected entirely. But must the review of the exercise of statutory and non-statutory powers rest on the same foundation?

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