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Joseph argues that: 'The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts' powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom.
Principles of judicial review are, as they have always been, sourced in the common law.'
Is this true?
Introduction (Whole section here is question-specific)Joseph's statement is underlined by a number of assertions which need to be addressed carefully in order to express disagreement with him:
o Assertion #1: The principles of judicial review (JR) are based on the common law; and
Assertion #2: The legitimacy of the courts in invalidating decisions of democratically empowered decision-makers is unaffected by those principles being based on the common law.It will be argued, contrary to these assertions that:
o In dealing with assertion #1, the principles of judicial review are not so easily ascribable to the common law both in doctrine and in fact; and
In dealing with assertion #2, even if the principles of JR can be said to be based in the common law, the legitimacy of the court, although sustainable when invalidating SOME types of decisions and/or decision-makers, it cannot account for the entire field of JR as Parliamentary sovereignty is undermined by statutory powers are concerned.
Common Law Theory, its Strengths, and its ProblemsOUTLINE: Common Law Theory
Briefly, Craig [(1999) PL], as one of the prominent common law theorists,
argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the "common law standards of good administration".
o On their view, where courts invalidate decisions of public bodies by applying these "standards of good administration", they are enforcing their own judicial will and standards, not those of Parliament.STRENGTH #1: Factual Honesty
Galligan's "standards of good administration" would include principles such as:
The requirement of fairness (as seen in Cooper v Wandsworth,
Osborn v Parole Board, amongst many other cases);
The rule against bias (as seen in Porter v Magill, Pinochet (No 2),
amongst many other cases);
The protection of legitimate expectations (as seen in MFK
Understanding, ex parte Unilever, ex parte Coughlan, amongst many other cases);
Prohibitions against fettering of discretion (in the numerous forms seen in British Oxygen v Minister, ex parte Kynoch, amongst many other cases); and
Reasonableness (Wednesbury v Associated Picture).
o These principles, as Laws [(1995) PL] points out, and opposing author Forsyth
[(2000) Judicial Review and the Constitution] concedes, are creations of the common law and judicial innovation.
o This lends common law theory factual honesty (which Laws (1995) and Craig
[(1998) CLJ] argue the modified ultra vires theory lacks - discussed below)
and internal coherence as it is clear that Parliament does not (or if it does,
rarely ever) explicitly legislates that the above-mentioned principles are to be applicable in the field of administrative law. In fact, in Wilkinson v Barking,
the court even noted that unless it is clear that Parliament intended to displace the principles of procedural fairness, the courts would be reluctant to disapply them.
o As such, there is some truth to Joseph's assertion that the principles of JR are
"sourced in the common law", in the sense that they originate therefrom.
However, to sustain the assertion that the common law forms the constitutional foundation of JR, we need to look deeper.STRENGTH #2: Accounting for Non-Statutory Powers and Bodies
Beyond factual honesty, the common law also seems to be a legitimate foundation for the courts' application of its standards of good administration insofar as non-statutory powers and bodies are concerned.
In Lewis v AG of Jamaica, the Privy Council enforced the principles of natural justice against the Mercy Committee in the exercise of their prerogative powers of mercy.
Forsyth [(1996) CLJ] himself noted that the ultra vires doctrine (discussed below) was "never [meant to be] the sole justification for judicial review", and that the common law can legitimately form the basis of JR of non-statutory powers and bodies.
o As seen in ex parte Bentley, the Home Secretary in the UK (typically considered a "democratically empowered decision-maker"—although this will be explored more thoroughly later) exercises the mercy prerogative.
The fact that his decisions, given their prerogative nature, can be subject to JR purely on the basis of the common law (even on
Forsyth's account) without calling into question the courts' legitimacy to do so, gives some credit to Joseph's support of the common law as the foundation of JR.
However, this is only observable with regards to non-statutory powers of democratically empowered decision-makers, or the powers of nondemocratically empowered decision-makers (such as that seen in ex parte Datafin).
Where statute comes into play, the common law theory runs into contravening the doctrine of Parliamentary Sovereignty (PS).WEAKNESS: Misalignment with Parliamentary Sovereignty
Forsyth [(2000) Judicial Review and the Constitution] put forth a convincing case (expanding on the case he built in [(1996) CLJ]) that common law theorists (or "weak critics" as he called them), even if they do not intend to do so, necessarily undermine PS. Allan [(2002) CLJ], despite being in an entirely different camp, also makes the same point.
Forsyth (2000) puts forward the following two propositions:
Common law theorists propose that the common law will require decision-makers to apply the standards of good administration unless Parliament clearly intends otherwise.
Ultra vires theorists propose that unless Parliament clearly intends otherwise, it is presumed that Parliament intended for the decision-makers to abide by the common law standards of good administration.
Although similar, without the presumption that Parliament impliedly intended for such standards to apply, the common law will necessarily be supplementing the absolute criteria set out in legislation without
Parliamentary mandate and therefore undermining PS.
E.g. If legislation stipulates that X, Y and Z are criteria required for exercising a power, if the common law were to include the standards of good administration (e.g. natural justice), this would effectively mean that Parliament's authority to lay down absolute criteria is undermined, and therefore its sovereignty.
This he argues, transmutes the 'weak' ultra vires critics that adopt common law theory without seeking to challenge
Parliamentary sovereignty, into 'strong' critics which challenge
Parliamentary sovereignty, whether they intend to or not.
o The force of logic in Forsyth's argument is undeniable but is challenged on two fronts:
Firstly, Laws' [(1995) PL] argues that the common law can legitimately fill in gaps left by Parliament when it is silent and presumably agnostic as to the applicable standards of good administration.
Secondly, Jowell [(2000) Judicial Review and the Constitution] argues that the court should not be reduced to a mere bureaucrats enforcing
Parliamentary will. They should be recognised as an independent institution whose function is to "[form] their own view".
Read together, these arguments seems to show that the courts would be acting legitimately by imposing their own standards of good administration where Parliament is silent. After all, Parliament retains the ultimate right to break the silence and exclude the courts from continuing to do so if it so desires.
However, although compelling, this proposition runs into subsequent theoretical difficulties—in that it fails to account for the courts'
treatment of administrative acts which contravene the common law standards of good administration as void ab initio (as seen in DPP v
Head amongst many other cases), something which is reliant on the doctrine of ultra vires. If an act is only unlawful by virtue of its contravention of the common law, and not Parliament's legislation, it should simply be voidable, not void.
o Joseph's statement therefore, despite being sustainable at some levels as discussed above, is not correct. By "sourcing" the principles of JR in the common law in a doctrinal sense that goes beyond factual honesty, a crisis of legitimacy over the courts' powers to invalidate decisions of democratically empowered decision-makers does arise.
o If it were to do so, it would undermine the sovereignty of Parliament, and unless orthodoxy is to be relinquished (as is along the lines of what Allan
[(2002) CLJ] suggests), Joseph's support for the common law as the basis of
JR is doctrinally unsustainable.
Modified Ultra Vires as a Better ViewOUTLINE: Modified Ultra Vires Theory
Briefly, Forsyth and Elliott, as prominent MUV theorists, have in many places
([(1996) PL], [(1999) CLJ], [(2000) Judicial Review and the Constitution],
and [(2003) CLJ]) argued that the basis on which the courts can give effect to the common law standards of good administration, is on the implied assumption that Parliament is taken "to have granted an imprimatur" to the courts to apply and develop the law in this area (Forsyth, 1996).
o On their view, where courts invalidate decisions of public bodies by applying these "standards of good administration", although they are enforcing their own judicial will and standards, such enforcement is impliedly authorised by
o However, as will be discussed below, this view is not as artificial as it appears to be as MUV theorists ultimately still recognise judicial creativity in this area.
It merely brings that creativity in-line with Parliamentary sovereignty using the implied assumption stated above.STRENGTH #1: Alignment with Orthodoxy
As Forsyth (2000) correctly points out, Lords Steyn, Browne-Wilkinson,
Irvine, and Slynn (amongst others) have all acknowledged ultra vires as the basis of JR (most notably in Boddington v British Transport Police).
So while there may be some faults with this proposition, it is relatively clear that it is law that Parliament impliedly intends for the court to give effect to such standards (or as Lord Steyn put in ex parte Pierson,
"Parliament does not legislate in a vacuum… [but] for a European liberal democracy founded on the principles and traditions of the common law…"
This allows the court to act on Parliament's imprimatur, be recognised as the source and keepers of these standards of good administration,
yet without illegitimately "imposing an additional requirement for validity" (Forsyth, 2000) beyond the limits set by Parliament.STRENGTH #2: Minimal Artificiality
A core criticism of the above-mentioned proposition is put forward by Craig
[(1998) CLJ] who noted that this approach "does not accord with reality".
Bamforth [(2000) Judicial Review and the Constitution] seems to agree with this, and points out that Wade and Forsyth [(1994) Administrative Law] have even conceded that ultra vires theory involves "a high degree of artificiality".
Simply put, critics are dissatisfied with the artificiality of attributing what are clearly judicial doctrines and developments to Parliament.
However, refinement of the doctrine since that concession demonstrates the weakness of this criticism. Elegantly summing up his response, Forsyth [(2000) Judicial Review and the Constitution] noted that the MUV theory "does not assert that every nuance of every ground of judicial review is to be found in the implied intent of the legislature… It simply asserts that when the courts do turn to common law principle to guide their development of judicial review they are doing what Parliament intended them to do."
Support for the idea that the development of principles of JR can be attributable to Parliament even without changes to legislation can be found with Lord Mustill in ex parte Doody, where he noted that although "there is a presumption that [powers] will be exercised in a manner which is fair… the standards of fairness are not immutable".
As such, MUV theory only makes the minimal assertion that
Parliament impliedly sanctions/authorises the application of JR
principles, without which, Parliamentary sovereignty would be undermined by the courts' supplementation of additional requirements for the exercise of pubic powers, effectively preventing Parliament from setting definitive limits.
o Nonetheless, there is still a measure of artificiality in this proposition, as Laws
[(1995) PL] points out, common law theorists only assert that the principles of
JR are only applicable where Parliament is silent and presumably agnostic. On this view, should Parliament explicitly state that it intends for such principles not to apply, the court cannot act in defiance of this, and Parliamentary sovereignty is preserved.
However, as Elliott [(2000) Judicial Review and the Constitution]
points out, Laws' proposition that Parliament might be agnostic is even more artificial as Parliament's very job is to have views, it would surely have some on crucial matters such as the standards of good administration.
Or, as Forsyth [(2000) Judicial Review and the Constitution] put it,
"even the most dim-witted legislator… will, if asked, say that in legislating they intend that the powers granted should be fairly exercised".
o As such, although it is undoubtedly more honest to say as Joseph does that the principles of JR are "sourced in the common law", to accept the common law as the constitutional basis of JR, trades orthodox for honesty. The MUV theory as detailed above, does not require this as it both recognises orthodoxy, and is not as "artificial" as critics would suggest.APPARENT WEAKNESS: Non-Statutory Powers and Bodies
An issue which is pertinent to the debate about the constitutional foundations of JR is the democratic empowerment of the decision-maker in question. This is mostly a non-issue as most decision-makers' (the Executive Government,
Local Authorities, various Commissioners, etc.) draw their decision-making powers from Parliament (sometimes indirectly when subsidiary legislation is concerned) which can be said to "democratically empower" them.
However as discussed above, the Executive Government has prerogative powers which do not stem from Parliament. And given that they are not elected in the strict sense—although they may be elected
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