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:

  • 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:

  • 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 Problems

• OUTLINE: 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”.

  • 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).

  • 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.

  • 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.

  • 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.

  • 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 non-democratically 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,...

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