Judicial Review and the Constitution

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ISBN: 9781841131054 | 1841131059
Cover: Hardcover
Copyright: 8/4/2000

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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.

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

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