Intention, Supremacy and the Theories of Judicial Review

John McGarry

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317517597
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In the late 1980s, a vigorous debate began about how we may best justify, in constitutional terms, the English courts' jurisdiction to judicially review the exercise of public power derived from an Act of Parliament. Two rival theories emerged in this debate, the ultra vires theory and the common law theory. The debate between the supporters of these two theories has never satisfactorily been resolved and has been criticised as being futile. Yet, the debate raises some fundamental questions about the constitution of the United Kingdom, particularly: the relationship between Parliament and the courts; the nature of parliamentary supremacy in the contemporary constitution; and the possibility and validity of relying on legislative intent.

This book critically analyses the ultra vires and common law theories and argues that neither offers a convincing explanation for the courts' judicial review jurisdiction. Instead, the author puts forward the theory that parliamentary supremacy – and, in turn, the relationship between Parliament and the courts – is not absolute and does not operate in a hard and fast way but, rather, functions in a more flexible way and that the courts will balance particular Acts of Parliament against competing statutes or principles. McGarry argues that this new conception of parliamentary supremacy leads to an alternative theory of judicial review which significantly differs from both the ultra vires and common law theories.

This book will be of great interest to students and scholars of UK public law.

1 Introduction

In 1987, Dawn Oliver published an article entitled: 'Is the Ultra Vires Rule the Basis of Judicial Review?'¹ This explored the way in which we justify the supervisory jurisdiction of the English courts. It followed a number of cases in which the judicial review jurisdiction seemed to have 'burst through its logical boundaries'² as apparently delineated by the ultra vires theory. Since then there have been numerous publications³ and at least one conference⁴ examining this issue. Despite this academic interest, some commentators question the utility of this debate. The claim is that it is a 'largely semantic tussle'⁵ which is 'sterile'⁶ and 'pointless'.⁷

It is surely the case, however, that identifying the basis of court action is valuable, both practically and theoretically. The theoretical foundation on which the courts base their jurisdiction will affect the manner in which they reach their decisions and the substance of those decisions. This will, in turn, govern the way in which lawyers frame their arguments before court.

In addition, identifying the theoretical basis underlying judicial review enables us to evaluate the degree to which any particular decision is consistent with that basis and thereby provide a means of assessing the propriety of the decision. Furthermore, the debate teaches us 'much about the British constitution', highlighting 'the interaction of fundamental legal principles'.⁸ This will be seen throughout the following work where engagement with the debate encourages us to reconsider the relationship between Parliament and the courts and between common law principles of legality and the doctrine of parliamentary sovereignty,⁹ including the degree to which the courts adhere to the assumed intention of, or legislation enacted by, Parliament. As Chu writes, the 'fundamental issues' identified in the debate are important because they 'inform the definition and clarification of the relationship between the judiciary and the other branches of government'.¹⁰

Indeed, it is the fact that the debate has largely centred on this aspect of the UK constitution – the relationship between Parliament and the courts – that makes it so interesting and worthwhile. For the most part, it is this that divides the supporters of the two alternative theories generally proffered as providing the constitutional legitimacy for judicial review: the ultra vires theory and the common law theory. Disagreement centres on the question of how the judicial supervision of public power granted by a sovereign legislature may be explicated. The proponents of the ultra vires theory argue that we must assume that the review of such power is intended by Parliament. They state that, without this assumption, the supervision of such power would amount to a breach of parliamentary supremacy. Supporters of the alternative common law theory contend that judicial review is exercised by virtue of a common law jurisdiction to supervise public power and that justification by reference to parliamentary intent is not necessary.

In the following work, I subject these two theories to critical analysis. This involves examining both the theories themselves and the debate that has taken place between the supporters of each. It also involves using immanent critique to evaluate the degree to which the theories match the practice of review. Such a critique is appropriate because it is implicit in any theory that it should correspond to the activity for which it is given as an explanation and, what is more, it is inherent in the arguments advanced by the proponents of both theories that they coincide with judicial review in reality.

I follow this analysis by proposing an alternative justification for judicial review. This is based on a novel conception of parliamentary sovereignty – one that operates in a way which differs from that assumed in either the ultra vires or common law theories. I argue that this alternative justification, and the conception of sovereignty on which it is based, is better able to account for the relationship between Parliament and the courts and for the operation of judicial review.

The research is underpinned by philosophical hermeneutics. Philosophical hermeneutics reflects on the process of understanding. Among other things, it claims that understanding also involves interpretation and application and that, when attempting to understand a text, artwork or law, we cannot and should not attempt to divine the intention of its creator. This rejection of authorial and legislative intention has obvious implications for the present work which, in part, analyses two alternative theories which differ in the reliance they place on the intention of the Parliament. Indeed, adopting philosophical hermeneutics as my methodology provides me with a range of assumptions and concepts by which I evaluate the ultra vires and common law theories. It also guides my development of an alternative justification for judicial review and the conception of parliamentary supremacy on which it is based.

Chapter Two describes this methodology. I give an account of the main aspects of philosophical hermeneutics, justify its adoption as the methodology for this work and illustrate the way in which it will guide the research undertaken in this book.

In Chapter Three, I delineate and examine the ultra vires and common law theories and the rationales on which they are based. In so doing, I identify the assumptions – both explicit and implicit – underlying these theories.

Chapter Four explores the main themes of the debate between the supporters of the ultra vires and common law theories and considers the differences and similarities that exist between the two. In particular, I investigate: the way in which parliamentary sovereignty is understood in the two theories; the validity of relying on parliamentary intent in the ultra vires theory; the use made of the doctrine of the rule of law; the way in which the courts' treatment of ouster clauses and of non-statutory public power is explained; and the structural coherence of the ultra vires theory.

In Chapter Five, I use immanent critique to gauge the extent to which the two competing theories match the practice of review. Immanent critique attempts to evaluate the degree to which a practice aligns with the values which are claimed to underlie and justify it. It is used here to assess the degree to which the ultra vires and common law theories match judicial review in practice. I begin with a brief account of immanent critique. I then identify the principles underlying the two theories. I use these principles to undertake the critique and evaluate the degree to which the practice of judicial review coincides with the two theories. I examine six aspects of review: the extent of the judicial review jurisdiction; the permission stage; the time limits for bringing a claim; the sufficient interest requirement; the courts' treatment of ouster clauses; and the discretionary nature of remedies.

In Chapter Six, I follow the analysis undertaken in the previous three chapters and argue that parliamentary supremacy functions in a different way to that assumed in either the ultra vires or common law theory: that it operates as a Dworkinian principle rather than a rule. I also consider some potential criticisms of this conception of parliamentary sovereignty.

In the final chapter, I examine the implications for justifying the judicial review jurisdiction in the light of the alternative conception of parliamentary sovereignty suggested in Chapter Six. I also explore the way in which the standards of good administration – breach of which may found a claim in judicial review – are developed by the courts and the direct and indirect influence of legislation on the exercise of the supervisory jurisdiction.

1 Dawn Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] PL 543.

2 HWR Wade, 'Judicial Review of Ministerial Guidance' (1986) 102 LQR 173,175. The comment was made with regard to a number of cases where the courts have reviewed 'non-statutory rules' exercised in pursuit of 'non-statutory powers'.

3 Including: Christopher F Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' [1996] CL/122; Paul P Craig, 'Ultra Vires and the Foundations of Judicial Review' [1998] CLJ 63; Mark C Elliott, 'The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law' [1999] CLJ 129; Mark C Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001); TRS Allan, 'Constitutional Dialogue and the Justification of Judicial Review' (2003) 23 OJLS 563; Christopher F Forsyth and Mark C Elliott, 'The Legitimacy of Judicial Review' [2003] PL 286; Lori A Ringhand, 'Fig Leaves, Fairy Tales, and Constitutional Foundations: Debating Judicial Review in Britain' (2005) 43(3) Columbia Journal of Transnational Law 865; John Chu, 'One Controversy, Two Jurisdictions: A Comparative Evaluation of the Ultra Vires and Common Law Theories of Judicial Review' [2009] JR 347; TRS Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP 2013) Chapter Six.

4 Cambridge, 22 May 1999. The papers given are contained in Christopher F Forsyth (ed), Judicial Review and the Constitution (Hart Publishing 2000).

5 TRS Allan, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?' [2002] CLJ 87, 101.

6 ibid.

7 ibid 123.

8 Allan, The Sovereignty of Law (n 3) 209. Indeed, Allan ascribes to the participants in the debate the ambition of 'seeking to improve our grasp of constitutional theory', ibid 211.

9 Also known as legislative sovereignty or supremacy; these terms will be used synonymously throughout the text.

10 Chu, 'One Controversy, Two Jurisdictions' (n 3) para 2.

Bibliography

Allan TRS, 'Constitutional Dialogue and the Justification of Judicial Review' (2003) 23 Oxford Journal of Legal Studies 563

— 'The Constitutiona...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Permissions
• Acknowledgements
• Table of cases
• Table of statutes
• 1 Introduction
• 2 Philosophical hermeneutics
• 3 The ultra vires theory and the common law theory of judicial review
• 4 Themes of the debate
• 5 Immanent critique and the theories of judicial review
• 6 The principle of parliamentary sovereignty
• 7 The constitutional legitimacy of judicial review
• Index