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?

  • What gives them the right to determine what action is unlawful?

  • How do courts work out what action is unlawful?

  • What, if anything, constrains the courts when they do this?

  • What is the legal nature and source of the limits upon executive power enforced upon the courts by judicial review?

  • 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?

  • 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?

  • 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 Forsyth

• Key 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.

• 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.

2.2 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 . ....

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