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The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?

Published online by Cambridge University Press:  19 April 2002

T.R.S. Allan
T.R.S. Allan*
Affiliation:
University of Cambridge; Pembroke College
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Abstract

The essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

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Articles
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The Cambridge Law Journal , Volume 61 , Issue 1 , 07 March 2002 , pp. 87 - 125
Copyright
Copyright © Cambridge Law Journal and Contributors 2002

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Footnotes

John Allison and Jack Beatson have kindly made helpful comments on an earlier draft of this article.

References

1 Wade, H.W.R. and Forsyth, C.F., Administrative Law, 8th edn. (2000), pp. 3537Google Scholar.

2 Ibid.

3 See Forsyth, Christopher, “Heat and Light: A Plea for Reconciliation”, in Forsyth, (ed.), Judicial Review and the Constitution (2000), pp. 408409Google Scholar.

4 The connections between the ultra vires debate, as currently conducted, and the various schools or styles of public law thought more generally will be examined below. For a helpful account of the main styles of thought, see Martin Loughlin, Public Law and Political Theory (1992). See also Carol Harlow and Richard Rawlings, Law and Administration, 2nd edn. (1997), chs. 2 & 3.

5 The nature of parliamentary sovereignty is, however, examined by Mark Elliott in the context of his defence of ultra vires: see Elliott, “The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review” (1999) 115 L.Q.R. 119, and The Constitutional Foundations of Judicial Review (2001), ch. 3. Although Elliott is willing to contemplate the existence of (modest) limits to the scope of parliamentary sovereignty, he fails to see their implications for administrative power: see Allan, “The Rule of Law as the Foundation of Judicial Review”, in Forsyth (ed.), Judicial Review and the Constitution, pp. 413-414.

6 Paul Craig, “Public Law, Political Theory and Legal Theory” [2000] P.L. 211, at pp. 236-237. See H.W.R. Wade, “The Basis of Legal Sovereignty” [1955] C.L.J. 172. The weaknesses of Wade's theory of sovereignty as a basis for the ultra vires doctrine are perceptively explored by Nicholas Bamforth, “Ultra Vires and Institutional Interdependence”, in Forsyth (ed.), Judicial Review and the Constitution.

7 See e.g., Forsyth, “Heat and Light”, above, p. 394.

8 Paul Craig, “Ultra Vires and the Foundations of Judicial Review” [1998] C.L.J. 63, at pp. 8185, 88.

9 See Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001), pp. 204-207.

10 Christopher Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” [1996] C.L.J. 122, at p. 134.

11 Sir John Laws, “Illegality: The Problem of Jurisdiction”, in M. Supperstone and J. Goudie (eds.), Judicial Review (1997), pp. 4.12-4.13.

12 Craig, “Ultra Vires and the Foundations of Judicial Review”, above, p. 79.

13 Sir Stephen Sedley, “Human Rights: a Twenty-First Century Agenda” [1995] P.L. 386, at p. 389, and “The Common Law and the Constitution”, in Lord Nolan of Brasted and Sir Stephen Sedley, The Making and Remaking of the British Constitution (1997), p. 26.

14 J.A.G. Griffith, “The Common Law and the Political Constitution” (2001) 117 L.Q.R. 42.

15 Ibid., pp. 48-50.

16 Ibid., p. 49.

17 See also Griffith, The Politics of the Judiciary, 5th edn. (1997).

18 Jeffrey Jowell, “Of Vires and Vacuums: The Constitutional Context of Judicial Review” [1999] P.L. 448.

19 Ibid., p. 452.

20 Ibid., p. 458.

21 Ibid., p. 460.

22 Ibid., p. 458.

23 Ibid., pp. 458-459.

24 Jowell, “Beyond the Rule of Law: Towards Constitutional Judicial Review” [2000] P.L. 671, at pp. 671-672.

25 Ibid., p. 675.

26 Sir John Laws, “Law and Democracy” [1995] P.L. 72, at p. 92.

27 Ibid., p. 87.

28 Jowell, “Of Vires and Vacuums”, above, p. 454.

29 See Allan, Law, Liberty, and Justice (1993), ch. 8, and Constitutional Justice, ch. 5.

30 J.D.B. Mitchell, “The State of Public Law in the United Kingdom” (1966) 15 I.C.L.Q. 133, at p. 142.

31 Loughlin, , “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978) 28 U. of Toronto L.J. 215Google Scholar.

32 R. v. Secretary of Slate for Education and Employment, ex p. Begbie [2000] 1 W.L.R. 1115 at p. 1130.

33 Ibid.

34 See generally Harlow and Rawlings, Law and Administration, 2nd edn., ch. 15.

35 Jowell, “Beyond the Rule of Law”, above, p. 673.

36 Jowell, “Of Vires and Vacuums”, above, p. 449.

37 The interdependence of courts and Parliament, as regards ultimate constitutional authority, is a principal theme of Bamforth's essay, “Ultra Vires and Institutional Interdepence”, in Forsyth (ed.), Judicial Review and the Constitution.

38 Christopher Forsyth, “Of Fig Leaves and Fairy Tales”, above, at p. 136.

39 Sir John Laws, “Law and Democracy” [1995] P.L. 72, at p. 79.

40 Paul Craig, “Ultra Vires and the Foundations of Judicial Review”, above, at p. 90.

41 Christopher Forsyth, “Of Fig Leaves and Fairly Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” [1996] C.L.J. 122, at p. 133.

42 Ibid.

43 See e.g., Paul Craig, “Competing Models of Judicial Review” [1999] P.L. 428, at p. 439.

44 Mark Elliott, “The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law” [1999] C.L.J. 129, at p. 131.

45 Ibid., p. 143.

46 Ibid.

47 Forsyth, “Of Fig Leave and Fairy Tales”, p. 135.

48 Craig, “Competing Models of Judicial Review”, above, at p. 431.

49 See further Paul Craig and Nicholas Bamforth, “Constitutional Analysis, Constitutional Principle and Judicial Review” [2001] PL. 763, at pp. 771-772.

50 Craig, “Competing Models of Judicial Review”, at p. 431.

51 Craig, “Ultra Vires and the Foundations of Review”, at p. 67.

52 Elliott, “Legislative Intention Versus Judicial Creativity? Administrative Law as a Cooperative Endeavour”, in Forsyth (ed.), Judicial Review and the Constitution, pp. 350-351.

53 Ibid., p. 369.

54 Ibid., pp. 364-368. See also Forsyth, ‘“The Metaphysic of Nullity’: Invalidity, Conceptual Reasoning and the Rule of Law”, in Christopher Forsyth and Ivan Hare (eds.), The Golden Melwand and the Crooked Cord (1998).

55 Anisminic Lid. v. Foreign Compensation Commission [1969] 2 A.C. 147.

56 Black-Clawson International v. Papierwerke Waldhof-Aschaffenburg [1975] A.C. 591, at p. 638.

57 See further Allan, Constitutional Justice, ch. 7.

58 See Laws, “Law and Democracy”, mentioned above, and “Illegality: The Problem of Jurisdiction”, Supperstone and Goudie (eds.), Judicial Preview , pp. 4.12-4.13.

59 Sir John Laws, “Illegality”, above, p. 4.17.

60 Ibid., pp. 4.18-4.19.

61 Ibid.

62 [1993] A.C. 593.

63 Cf. Nolan and Sedley, The Making and Remaking of the British Constitution, pp. 58-60.

64 For a perceptive account of constructive interpretation, see Ronald Dworkin, Law's Empire (1986), ch. 9. For pertinent criticism of Pepper v. Hart on constitutional grounds, see Johan Steyn, “Pepper v. Hart, A Re-examination” (2001) 21 O.J.L.S. 59.

65 Laws, “Illegality”, p. 4.19.

66 Elliott, “The Ultra Vires Doctrine in a Constitutional Setting”, at p. 143.

67 See Allan, Constitutional Justice, pp. 210-213.

68 Laws, “Illegality”, pp. 4.23-4.26.

69 Elliott, “Legislative Intention Versus Judicial Creativity”, p. 361.

70 Ibid., p. 363.

71 Cf. Lord Woolf of Barnes, “Droit Public—English Style” [1995] P.L. 57 at p. 69.

72 Elliott, “The Demise of Parliamentary Sovereignty?”, above, at p. 132.

73 Elliott, “Legislative Intention Versus Judicial Creativity”, pp. 355-356.

74 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, at p. 410.

75 Elliott, The Constitutional Foundations of Judicial Review, p. 141.

76 Ibid., pp. 141-144. (As regards non-existent intentions, see discussion below.)

77 The South African experience provides a pertinent example: see Forsyth, “Of Fig Feaves and Fairy Tales”, above, pp. 129-131, and David Dyzenhaus, “Reuniting the Brain: The Democratic Basis of Judicial Review” (1998) 9 P.L.R. 98, at p. 101.

78 Laws, “Illegality”, pp. 4.17-4.18.

79 Andrew Halpin, “The Theoretical Controversy Concerning Judicial Review” (2001) 64 M.L.R. 500, at p. 504. (Cf. Craig and Bamforth, “Constitutional Analysis, Constitutional Principle and Judicial Review”, above, at p. 771.)

80 Ibid., p. 507.

81 Contrary, moreover, to Barber's complaint, Elliott's argument is no more undermined—in purely conceptual terms—by his “personification” of Parliament than any other argument that invokes the notion of legislative intent: see N.W. Barber, “The Academic Mythologians” (2001) 21 O.J.L.S. 369, at pp. 375-376.

82 Dyzenhaus, “Reuniting the Brain”, above, at p. 107.

83 Halpin, op. cit., p. 508.

84 Ibid., p. 510.

85 For pertinent discussion, see Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: an Analytical Framework” [1997] P.L. 467; David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?”, in Forsyth (ed.), Judicial Review and the Constitution', Allan, Constitutional Justice, esp. chs. 1-3.

86 For the contrast between “normativist” and “functionalist” styles of thought in public law, see Martin Loughlin, Public Law and Political Theory.

87 J.A.G. Griffith, “The Political Constitution” (1979) 42 M.L.R. 1, at p. 15.

88 H.W. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business” (1979) 17 Osgoode Hall L.J. 1.

89 Ibid., p. 42. Cf. Griffith, “The Common Law and the Political Constitution”, above, p. 58.

90 Arthurs, op. cit., p. 41.

91 Ibid., pp. 17-18.

92 Ibid., p. 20.

93 Ibid., p. 19.

94 Ibid., p. 18.

95 Ibid. p. 22.

96 These dangers are duly emphasised by Paul Craig in his text, Administrative Law, 4th edn. (1999): see esp. chs. 1 & 13.

97 The Rt. Hon. Sedley, Lord Justice, Freedom, Law and Justice (Hamlyn Lectures, London, 1999), p. 33Google Scholar.

98 Dawn Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] P.L. 543, at p. 568.

99 Griffith, “The Common Law and the Political Constitution”, above, p. 66.

100 See Dawn Oliver, “Common Values in Public and Private Law and the Public/Private Divide” [1997] P.L. 630, and “Review of (Non-Statutory) Discretions”, in Forsyth (ed.), Judicial Review and the Constitution.

101 Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112.

102 Ibid., p. 192.

103 Ibid., p. 194.

104 Review of the decisions of the University Visitor provides a further example. No challenge can be made on grounds of error of law (as regards interpretation of the statutes) or unreasonableness: see R. v. Hull University Visitor, ex p. Page [1993] A.C. 682.

105 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

106 Ibid., p. 411.

107 R. v. Panel on Take-overs and Mergers, ex p. Datafin p.l.c. [1987] 1 All E.R. 564.

108 Ibid., p. 578.

109 Arthurs, “Rethinking Administrative Law”, above, p. 33.

110 Doctrinal indeterminacy is an important theme in Hutchinson's radical critique of judicial review: see Allan C. Hutchinson, “The Rise and Ruse of Administrative Law and Scholarship” (1985) 48 M.L.R. 293.

111 See Loughlin, “Procedural Fairness”, above. For the elastic and indeterminate nature of jurisdictional control, as regards “error of law”, see Craig, Administrative Law, 4th edn., ch. 15.

112 See R. v. North and East Devon Health Authority, ex p. Coughlan [2001] Q.B. 213, at pp. 241-242.

113 See Allan, Constitutional Justice, pp. 132-133.

114 R. v. Secretary of State for Education and Employment, ex p. Begbie [2000] 1 W'.L.R. 1115, at p. 1130.

115 R. v. Ministry of Defence, ex p. Smith [1996] 1 All E.R. 257, at p. 263.

116 The discretionary nature of judicial review in New Zealand, highly sensitive to context, is a major theme in Philip Joseph's essay, “The Demise of Utra Vires—Judicial Review in the New Zealand Courts” [2001] P.L. 354 (esp. pp. 371-375).

117 See Smith and Grady v. United Kingdom (2000) 29 E.H.R.R. 493.

118 See Allan, Constitutional Justice, pp. 177-179.

119 See generally Allan, Constitutional Justice.

120 Halpin, “The Theoretical Controversy Concerning Judicial Review”, above, p. 509.

121 See esp. Laws, “Judicial Review and the Meaning of Law”, in Forsyth (ed.), Judicial Review and the Constitution.

122 Elliott, “Fundamental Rights as Interpretative Constructs: The Constitutional Logic of the Human Rights Act 1998”, in Forsyth (ed.), Judicial Review and the Constitution.

123 Ibid., pp. 277-278.

124 Ibid., p. 277.

125 Ibid., pp. 281-287.

126 David Feldman, “Convention Rights and Substantive Ultra Vires”, in Forsyth (ed.), Judicial Review and the Constitution, p. 262.

127 Ibid., p. 263.

128 Ibid., p. 258.

129 Griffith, “The Political Constitution” (1979) 42 M.L.R. 1, at p. 14.

130 Feldman, op. cit., p. 267.

131 Ibid., pp. 266-268.

132 Laws, “Illegality”, above, at pp. 4.30-4.35. See also Laws, “The Constitution: Morals and Rights” [1996] P.L. 622.

133 The complexities of the dubious distinction between “illegality” and “irrationality”, which mirror those of the ultra vires debate over legislative intention, provide a good example: see Laws, “Wednesbury”, in Forsyth and Hare (eds.), The Golden Metwand and the Crooked Cord, pp. 193-194.

134 Dyzenhaus, “Reuniting the Brain”, above, at pp. 106-108. See also Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?”, in Forsyth (ed.), Judicial Review and the Constitution.

135 Ibid., p. 107.

136 Elliott, “Legislative Intention Versus Judicial Creativity?”, above, p. 366.