Judicial Review and the Constitution

by Christopher Forsyth (Editor)

Overview

This collection of essays presents opposing sides of the debate over the foundations of judicial review. In this work,however, the discussion of whether the 'ultra vires' doctrine is best characterised as a central principle of administrative law or as a harmless, justificatory fiction is located in the highly topical and political context of constitutional change. The thorough jurisprudential analysis of the relative merits of models of 'legislative intention' and 'judicial creativity' provides a sound base for consideration of the constitutional problems arising out of legislative devolution and the Human Rights Act 1998. As the historical orthodoxy is challenged by growing institutional independence, leading figures in the field offer competing perspectives on the future of judicial review.



“Confucius was wrong to say that it is a curse to live in interesting times. We are witnessing the development of a constitutional philosophy which recognises fundamental values and gives them effect in the mediation of law to the people”.

(Sir John Laws)



Contributors Nick Bamforth, Paul Craig, David Dyzenhaus, Mark Elliott, David Feldman, Christopher Forsyth, Brigid Hadfield, Jeffrey Jowell QC, Sir John Laws, Dawn Oliver, Sir Stephen Sedley, Mark Walters.



With short responses by: TRS Allan, Stephen Bailey, Robert Carnworth, Martin Loughlin, Michael Taggart, Sir William Wade.

Product Details

ISBN-13:	9781841131054
Publisher:	Bloomsbury Academic
Publication date:	08/04/2000
Pages:	480
Product dimensions:	6.14(w) x 9.21(h) x 1.06(d)

About the Author

Dr Christopher Forsyth is a Fellow of Robinson College and Assistant Director of the Centre for Public Law at the University of Cambridge.

is Reader in Law at University College London

Dr. iur (Hamburg)

Table of Contents

	Acknowledgements	xiii
	List of Contributors	xv
	List of Participants	xvii
	Table of Cases	xix
	Table of Legislation	xxx
Part I	The Debate Begins
1.	Is the Ultra Vires Rule the Basis of Judicial Review?	3
	Sources of Power	5
	Institutions	8
	Functions	11
	Conclusions	25
2.	Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review	29
	Introduction	29
	Judicial Review and the Exercise of Non-legal Powers by Non-statutory Bodies	31
	"Weak" and "Strong" Criticisms of the Ultra Vires Doctrine	33
	The Response to "Weak" Criticism	35
	Reconciling the "Weak" Criticisms with Orthodoxy	40
	The Utility of Fig-leaves and Fairy Tales	42
	The Response to "Strong" Criticism	43
	Conclusions	45
3.	Ultra Vires and the Foundations of Judicial Review	47
	The Criticisms of the Ultra Vires Doctrine	48
	The Defence of the Ultra Vires Principle: The Dangers of its Abandonment	54
	The Defence of the Ultra Vires Principle: Meeting the Objections	59
	The Foundations of Judicial Review	61
	Conclusion	70
4.	Illegality: The Problem of Jurisdiction	73
	R. v. Hull University ex p Page	79
5.	The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law	83
	Introduction	83
	The Importance of Justifying Judicial Review	85
	The Relationship between Legislative Intention and Judicial Review	88
	A Constitutional Setting for the Ultra Vires Doctrine: Overcoming the Shortcomings of the Traditional Model	100
	Conclusion	107
Part II	The Jurisprudential Debate
6.	Ultra Vires and Institutional Interdependence	111
	Criteria for Assessing the Merits of a Legal Theory	114
	Ultra Vires as the Constitutional Foundation of Judicial Review	116
	Institutional Interdependence and Hart's Rule of Recognition	130
	An Analogy: Parliamentary Privilege	135
	Conclusion: Making Explicit the Basis of Judicial Review	138
7.	Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review	141
	Introduction	141
	Procedure and Substance in Practical Theory	142
	Positivism, Judicial Review and the Rule of Law	145
	Substance and Judicial Supremacism	160
	The Pleasing Persistence of Process Based Theories	167
8.	Judicial Review and the Meaning of Law	173
	Introductory	173
	The Common Law	173
	Philosophy	176
	Positivism	178
	The Nature of Principle	180
	The Rule of Law	183
	Parliament and the Judges	185
Part III	Constitutional Reform and the Foundations of Judicial Review
9.	The Foundations of Review, Devolved Power and Delegated Power	191
	General Introduction	193
	The Realities	199
	Devolution: The Mechanics	200
	Conclusions	209
10.	The Courts, Devolution and Judicial Review	213
	Wales, Executive Devolution and the Assignment of Limited Competence	213
	Judicial Challenge to the Competence of the Assembly	216
	Scotland, Legislative Devolution and the Demarcation of Legislative Competence	220
	Political Challenge to the Competence of the Scottish Parliament	224
	Judicial Challenge to the Competence of the Scottish Parliament	224
	Judicial Determination of Legislative Competence: Three Central Issues	228
	The Interpretative Perspective: Statutory or Constitutional Interpretation?	229
	The Division of Power: Manner and Degree	233
	The Unavoidable Task: The Classification of Impugned Legislation by Subject Matter	237
	Conclusion	243
11.	Convention Rights and Substantive Ultra Vires	245
	The Meanings of "Ultra Vires" and the Purpose of this Essay	245
	The Effect of Ultra Vires Theories on the Protection of Convention Rights	251
	The Effect of Convention Rights on the Theory of Ultra Vires	261
	Conclusion	266
12.	Fundamental Rights as Interpretative Constructs: The Constitutional
	Logic of the Human Rights Act 1998	269
	Introduction	269
	Human Rights as Substantive Rules of Good Administration	271
	Human Rights as Interpretative Constructs	277
	Conclusion	287
	Judicial Review of Statutory and Non-Statutory Discretion
13.	Public Power and Private Power	291
14.	Review of (Non-Statutory) Discretions	307
	Fiduciary Relationships	308
	Company Law	312
	The Common Law	315
	Public Policy	318
	Towards General Principles of Decision-making	321
	The Limits of Duties of Considerate Decision-making in Public and Private Law	322
	Implications for the Public Private Divide	323
15.	Of Vires and Vacuums: The Constitutional Context of Judicial Review	327
	Testing the Justifications through the Grounds of Review	329
	Vires in Context	336
	The Separation of Powers and Judicial Independence	338
	Review of Non-statutory Bodies	339
	Conclusion	339
16.	Legislative Intention Versus Judicial Creativity? Administrative Law as a Co-operative Endeavour	341
	Introduction	341
	The Modified Ultra Vires Principle	343
	An Unwelcome Distinction in Administrative Law	350
	The Undesirable Consequences of the Unwelcome Distinction	359
	Conclusion	368
Part IV	Conclusion
17.	Competing Models of Judicial Review	373
	The Story Thus Far: The Contending Models	373
	Legislative Intent as the Central Principle of Administrative Law? The Substance of Judicial Review	375
	Legislative Intent as the Central Principle of Administrative Law? The Implications for the Substance of Other Areas of the Law	378
	Legislative Intent as the Central Principle of Administrative Law? The Formal Basis for Judicial Intervention	380
	Conclusion	391
18.	Heat and Light: A Plea for Reconciliation	393
	The Vanishing of the "Strong" Critics	393
	The Emergence of Consensus on Judicial Review of Non-statutory Discretion	395
	Big-endians and Little-endians	396
	The Legal Status of the Ultra Vires Doctrine	397
	The Constitutional Justification for Judicial Review	399
	Is Abandoning Ultra Vires a Challenge to Parliamentary Sovereignty?	400
	The Theoretical Criticism	404
	The Consequences of Abandonment for Administrative Law	405
	Conclusion	408
	Comments from some Participants
	T.R.S. Allan: The Rule of Law as the Foundation of Judicial Review	413
	Professor Stephen Bailey: Judicial Review in a Modern Context	421
	Sir Robert Carnwath: No Need for a Single Foundation	423
	Professor Martin Loughlin: Whither the Constitution?	425
	Professor Michael Taggart: Ultra Vires as Distraction	427
	Sir William Wade FBA: Constitutional Realities and Judicial Prudence	431
	Index	433

Editorial Reviews

In Judicial Review and the Constitution, Forsyth has gathered together the best of the previously published articles on the topic, and has commissioned new work from an impressive selection of leading public law scholars. The result is a collection that will prove of immense utility to anyone wanting an exhaustive survey of the arguments made in the debate.” —Oxford Jourbanal of Legal Studies

“Within the public law field, this book will (deservedly) prove among the foremost influences on the next generation of legal scholarship.” —Law Quarterly Review

From the Publisher

The essays collected here present opposing sides of the debate over the foundations of judicial review in English law. The controversy surrounding the doctrine of "ultra vires" is considered in the political context of constitutional change. Models of "legislative intention" and "judicial creativity" are also examined and evaluated, with consideration to the problems arising from the 1998 Human Rights Act. Contributors include legal scholars from the United Kingdom and Canada. Distributed by ISBS. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews