Published online by Cambridge University Press: 01 March 1999
There is currently a good deal of disagreement concerning the constitutional justification for judicial review in English law. The ultra vires doctrine holds that review is simply a function of legislative intention. In contrast, a number of commentators argue that administrative law is a body of judge-made common law which is unrelated to the will of Parliament. The truth lies somewhere between these two poles.
The traditional ultra vires doctrine is unsatisfactory because, inter alia, it is unrealistic to assert that judicial review constitutes nothing more than the implementation of legislative intention. However, the attempt of some commentators to exclude intention from the justification for review is equally deficient since this is an affront to the sovereignty of Parliament. By locating the interpretative methodology of ultra vires within its proper constitutional setting and by recognising the importance of the rule of law to the process of statutory construction, it is possible to articulate an explanation of judicial review which is consistent with Parliament's legislative supremacy while avoiding the shortcomings of the traditional ultra vires principle (notably its inability satisfactorily to explain the derivation of the grounds of review; the courts' treatment of ouster clauses; the development of administrative law across time, and the extension of judicial review to non-statutory powers).
I am grateful to Dr. Christopher Forsyth for his valuable comments on an earlier draft of this paper.
1 SirSedley, Stephen, “The Sound of Silence: Constitutional Law Without a Constitution” (1994) 110 L.Q.R. 270, 283Google Scholar.
2 Cane, P., An Introduction to Administrative Law (Oxford 1996)Google Scholar, 3rd ed., describes the growth of judicial review in such terms at p. v.
3 “The Ghost in the Machine: Principle in Public Law”  P.L. 27.
4 Wade, H.W.R. and Forsyth, C.F., Administrative Law (Oxford 1994), 7th ed., pp. 41Google Scholar and 44.
5 “Is the Ultra Vires Rule the Basis of Judicial Review?”  P.L. 543.
6 Sir John Laws, “Law and Democracy”  P.L. 72, 79.
7 “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review”  C.L.J. 122.
8 “Ultra Vires and the Foundations of Judicial Review”  C.L.J. 63.
9 “Illegality: The Problem of Jurisdiction” in Supperstone, M. and Goudie, J. (eds.), Judicial Review (London 1997)Google Scholar, 2nd ed.
10 Cappelletti, M., The Judicial Process in Comparative Perspective (Oxford 1989), p. 19Google Scholar.
11 “Illegality: The Problem of Jurisdiction” in Supperstone, M. and Goudie, J. (eds.), Judicial Review (London 1991), 1st ed., at pp. 69–70Google Scholar.
12 Op. cit. n. 9, at p. 4.1 and op. cit. n. 11, at p. 51.
13 Sir Stephen Sedley  P.L. 543, 544.
14 Laws, op. cit. n. 9, at p. 4.1.
15 And, for that matter, any other jurisdiction.
16 Laws, op. cit. n. 11, at p. 69.
17 Within the framework which Laws sets out, constitutional principles such as the rule of law and the separation of powers could still be used to guide the courts in their control of public power: see Laws's treatment of the rule of law, op. cit. n. 9, at pp. 4.30–4.35. Crucially, however, such concepts would be fulfilling an explanatory rather than a justificatory function, since justification would be unnecessary according to Laws's constitutional model.
18 This argument is not inconsistent with the doctrine of legislative supremacy. There is no reason why the constitution should not embody a consensus which ascribes to Parliament legislative competence over all matters.
19 In the words of Hahlo, H.R. and Kahn, E., The South African Legal System and its Background (Cape Town 1968), p. 39Google Scholar, “The law should be [the judges’] only master.” This comment formed part of an argument that judges should be independent and fearless in the face of government; however, it is also relevant to the present contention that the courts must recognise legal and, in particular, constitutional constraints. The constitution imposes on the judges imperatives of both activism and self-restraint.
20 “Droit Public—English Style”  P.L. 57, 68.
21 Nottinghamshire County Council v. Secretary of State for the Environment  A.C. 240, 250–251.
22 R. v. Secretary of State for the Home Department, ex p. Fire Brigades Union  2 A.C. 513, 567–568. As the Lord Chancellor, Lord Irvine of Lairg, pointed out in a lecture given to the Historical Society of the United States Supreme Court (May 1998, Washington D.C.), it is an awareness of these sensitive power-allocation issues which has deterred the British courts from establishing a substantive, rights-based review jurisdiction. The Human Rights Act will provide the courts with the constitutional warrant which is necessary to confer democratic legitimacy on such a development.
23 See, for example, Oliver, op. cit. n. 5, especially pp. 543–545.
24 Op. cit. n. 8. See also Woolf, op. cit. n. 20 and Laws, op. cit. nn. 6, 9 and 11.
25 Forsyth, op. cit. n. 7, at pp. 133–134.
26 I have argued elsewhere that this analysis holds true even if the traditional conception of full parliamentary supremacy is rejected. See Elliott, M.C., “The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review” (1999) 115 L.Q.R. 119Google Scholar and below, for a summary of this argument.
27 Op. cit. n. 9, at pp. 4.13–4.19.
28 Op. cit. n. 8, at pp. 73–75. However, notwithstanding his expressed dissatisfaction with Forsyth's approach, Craig—somewhat paradoxically—appears to embrace the logic of Forsyth's point. Craig argues that if the common law is adopted as the legal basis of review, “there would be a common law presumption that the common law proscription against the making of vague or unreasonable regulations could be operative, and hence such regulations would be prohibited, unless there was some very clear indication from Parliament to the contrary”. The difference between this approach and that of Forsyth is semantic only. The effect of Craig's common law presumption that Parliament does not prohibit common law rules of good administration acknowledges that legislative intention is relevant: Craig must be understood as conceding that, ultimately, judicial review is constitutionally justified only to the extent that Parliament so permits. Thus, it is difficult to see how Craig's “common law presumption” differs in substance from Forsyth's notion of the “imprimatur” which, he argues, Parliament grants to the courts to allow them to develop the law of judicial review (on which see Forsyth, op. cit. n. 7, at pp. 134–136).
29 Op. cit. n. 9, at pp. 4.17–4.18.
31 This pre-eminent common law duty was first articulated in its general form (as distinct from the earlier context-specific duties in negligence) by Lord Atkin in Donoghue v. Stevenson  A.C. 562. His Lordship did not, of course, seek to justify this general private law prohibition on careless conduct by reference to legislative intention, and it would be unthinkable for anyone to question the legitimacy of the modern law of negligence on this ground. Naturally, if Parliament enacted legislation dealing with the general duty of care owed to one's neighbours, it would necessarily follow that, as regards the common law rule on this subject, Parliament would either have repealed it (expressly or impliedly) or ordained (expressly or impliedly) that the common law rule should continue. In the absence of such legislation, however, the courts are clearly free to develop the law in this area in accordance with traditional common law method.
32 For a notable example, see R. v. R. (Rape: Marital Exemption)  1 A.C. 599.
33 Forsyth, op. cit. n. 7, at p. 133.
35 Weatherill, S., “Beyond Preemption? Shared Competence and Constitutional Change in the European Community” in O'Keefe, D. and Twomey, P.M. (eds.), Legal Issues of the Maastricht Treaty (Chichester 1994), p. 16Google Scholar.
36 Case 74/69, Hauptzollamt Bremen v. Krohn  E.C.R. 451, 459. See also Case 40/69, Hauptzollamt Hamburg-Oberelbe v. Firma Paul G. Bollman  E.C.R. 69, 79.
37 There is broad agreement on this point. See Forsyth, op. cit. n. 7, at pp. 124–127; Craig, , Administrative Law (London 1994), 3rd ed., pp. 222–225Google Scholar; Laws, “Public Law and Employment Law: Abuse of Power”  P.L. 455.
38 Of course, background common law values are relevant to the interpretation of legislation and, therefore, to the identification of any limits which apply to statutory power. However, for the reasons discussed, the common law cannot independently delimit the scope of statutory power. The nature of the interpretive process and the relevance of the common law in this regard are discussed further below.
39 Op. cit. n. 9, at p. 4.18.
40 Op. cit. n. 6, at p. 84 (original emphasis).
41 St. Matthew's Gospel, Ch. 12, v. 30, quoted by Laws, ibid., at n. 32.
42 This attempt to divide the grounds of review into two categories—one based on legislative intention, the other resting on different foundations—is reminiscent of the analytical approach adopted by the South African Appellate Division in Staatspresident v. United Democratic Front 1988 (4) S.A. 830. See E. Mureinik  Annual Survey of South African Law 34, 63–64 for criticism.
43 These problems, some of which have been mentioned already, are considered in greater detail in section IV below, where it is argued that the shortcomings of the traditional ultra vires doctrine are overcome once it is placed in its proper constitutional setting.
44 Op. cit. n. 8, at p. 67.
45 Op. cit. n. 7, at p. 134.
46 See, inter alios, Sir Robin Cook, “Fundamentals”  N.Z.L.R. 158; Woolf, op. cit. n. 20; Laws, op. cit. nn. 6, 9 and 11; SirSedley, Stephen, “Human Rights: A Twenty-First Century Agenda”  P.L. 386Google Scholar; T.R.S. Allan, “The Limits of Parliamentary Sovereignty”  P.L. 614 and “Parliamentary Sovereignty: Law, Politics, and Revolution” (1997) 113 L.Q.R. 443.
47 See Elliott, op. cit. n. 26.
48 Op. cit. n. 9, at p. 4.18.
49 R. v. Secretary of State for the Home Department, ex p. Pierson  A.C. 539, 587. Similarly, at pp. 573–574, Lord Browne-Wilkinson observed that, “Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions… . Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice.” See also Lord Steyn, “Incorporation and Devolution—A Few Reflections on the Changing Scene”  European Human Rights Law Review 153, 154–155.
50 See R. v. Secretary of State for the Home Department, ex parte Doody  1 A.C. 531, 560, per Lord Mustill: “where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances”.
51 Op. cit. n. 7, at p. 135.
52 See s. 2(1).
53 See s. 1(2). Similarly, “visitor” is defined as a composite term embracing the common law notions of “invitee” and “licensee”. The same approach is adopted by the Occupiers’ Liability Act 1984, which regulates the liability of the occupier to persons other than his visitors.
54 For example, tenants (but not licensees) enjoy protection under the Rent Act 1977 and benefit from the statutory schemes regulating assured tenancies (under the Housing Act 1988) and business tenancies (under the Landlord and Tenant Act 1954).
55 Thus, under the Employment Rights Act 1996, only employees are capable of qualifying for such benefits as the rights not to be unfairly dismissed, to receive a redundancy payment and to be permitted to return to work after taking maternity leave.
56 Craig makes a similar argument.
57 R. v. Lord Chancellor, ex p. Witham  Q.B. 575.
58 Ibid., at pp. 579–580, per Laws J. (emphasis added).
59 Ibid., at p. 586.
60 R. v. Lord President of the Privy Counil, ex parte Page  A.C. 682. See Lord Browne-Wilkinson at pp. 701–702: “[Judicial review] is based on the proposition that [administrative] powers have been conferred on the decision-maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonably … [Therefore,] the constitutional basis of the courts’ power to quash [administrative decisions] is that the decision of the inferior tribunal is unlawful on the grounds that it is ultra vires.”
61 R. v. Secretary of State for the Home Department, ex parte Pierson  A.C. 539. The speech of Lord Steyn provides a particularly striking illustration of the methodology of ultra vires operating in precisely the manner contended for in the present article. The question whether it was within the Home Secretary's powers under the Criminal Justice Act 1991, s. 35(2), to increase the tariff of a prisoner serving a mandatory life sentence had to be resolved by construing the enabling provision within the context of the rule of law: “Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural” (see p. 591). The rule of law required that a tariff period, once set and communicated to the prisoner, should not be increased, and nothing in the Act displaced this presumption. Lord Browne-Wilkinson's reasoning is also consistent with the thesis of this paper, although in his dissenting speech he concluded that the decision was not unlawful (because his Lordship took a different view of precisely what the rule of law required of the Home Secretary).
62  2 W.L.R. 639. For comment on this decision, see M.C. Elliott, “Boddington: Rediscovering the Constitutional Logic of Administrative Law”  Judicial Review 144.
63 This term is, of course, Sir William Wade's: see Wade and Forsyth, op. cit. n. 4, at p. 41.
64 Boddington, at p. 662.
65 See ibid., at p. 650: “The Anisminic decision established … that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law.”
66 See ibid., at p. 655: “I adhere to my view that the juristic basis of judicial review is the doctrine of ultra vires.”
67 Lords Slynn and Hoffmann gave only very short, concurring speeches, and therefore did not discuss the ultra vires doctrine.
68 SirLaws, John, “Wednesbury” in Forsyth, C.F. and Hare, I.C. (eds.), The Golden Metwand and the Crooked Cord (Oxford 1997), p. 195Google Scholar (original emphasis).
69 Op. cit. n. 8, especially pp. 64–70.
70 Ibid., at p. 68. A similar point is made by Laws, op. cit. n. 6, at pp. 78–79.
71 “Has the Common Law a Future?”  C.L.J. 291, 302–303.
72 See R. v. Secretary of State for the Home Department, ex p. Doody  1 A.C. 531, 560, per Lord Mustill: “The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type.”
73 Op. cit. n. 8, at p. 68.
74  2 A.C. 147.
75 Foreign Compensation Act 1950, s. 4(4).
76 The success of this argument depended, of course, on precisely what was meant by an “unlawful decision”. It was the House of Lords’ expansive reformulation of the notion of jurisdiction which permitted judicial review to lie in spite of the ouster clause. By holding that any contravention of the principles of good administration constituted an excess of jurisdiction on the part of the decision-maker, it was possible to characterise all unreasonable and unfair decisions as unlawful and, therefore, unprotected by the preclusive provision which operated only on determinations within jurisdiction.
77 In addition to Anisminic, a number of other decisions confirm the importance which is attached to the right of access to the courts. See, inter alia, Raymond v. Honey  1 All E.R. 756; R v. Secretary of State for the Home Department, ex parte Leech  Q.B. 198; R v. Lord Chancellor, ex parte Witham  Q.B. 575.
78 The European Court of Justice articulated this interpretive obligation, known as the doctrine of indirect effect, in order to secure some effect in national law for Community provisions which lack direct effect. See Case 14/83, Von Colson v. Land Nordrhein-Westfalen  E.C.R. 1891 and Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacion SA  E.C.R. I-4135. For an imaginative example of this interpretive approach in the English courts see Webb v. Emo Air Cargo (UK) Ltd. (No. 2)  1 W.L.R. 1454.
79 Section 3(1).
80 See Lord Steyn, “Incorporation and Devolution—A Few Reflections on the Changing Scene”, op. cit. n. 49, at p. 154: “So much of public law concerns interpretation of statutes … Too often courts have asked: Is there an ambiguity in the statute? … It is sometimes a misguided journey to search for an ambiguity. The principle of legality may apply: it is in the words of Rupert Cross a constitutional principle not easily displaced by a statutory text.” See also T.R.S. Allan, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism”  C.L.J. 111 on the importance of the rule of law in the interpretive context.
81 See Wade and Forsyth, op. cit. n. 4, at p. 737 and T.R.S. Allan, “Parliamentary Sovereignty: Law, Politics, and Revolution”, op. cit. n. 46, at p. 448.
82 See Smith v. East Elloe Rural District Council  A.C. 736 and R. v. Secretary of State for the Environment, ex parte Ostler  Q.B. 122 and, generally, Wade and Forsyth, op. cit. n. 4, at pp. 742–756.
83  A.C. 92.
84 Ibid., at p. 109.
85 See Boddington v. British Transport Police  2 W.L.R. 639, 653, per Lord Irvine L.C., who argued that the outcome in R. v. Wicks, op. cit. n. 83, turned on the point that it concerned an administrative act “specifically directed” at the defendant who, in turn, had enjoyed “clear and ample opportunity” to challenge administratively the legality of the act in question before being charged with an offence.
86 Indeed, it is this principle which lies at the heart of the Human Rights Act. The respect for fundamental rights which is facilitated by the interpretive machinery set out in s. 3 must give way to the sovereign will of Parliament when legislation cannot be reconciled with the European Convention. This is clear from ss. 3(2)(b) and 4(6)(a), which provide that neither the duty of consistent construction nor the issue of a declaration of incompatibility shall affect the “validity, continuing operation or enforcement” of primary legislation.
87 See Foreign Compensation Act 1969, s. 3(3) and (9).
88 See Interception of Communications Act 1985, s. 7(8), and Security Service Act 1989, s. 5(4).
89 Moreover, the logic of ultra vires generally enhances the courts’ ability to vindicate the rule of law by narrowly interpreting ouster clauses. When the South African Appellate Division abandoned the ultra vires doctrine in favour of a common law basis for certain grounds of review in Staatspresident v. United Democratic Front 1988 (4) S.A. 830, it found itself unable to apply Anisminic reasoning to an ouster provision. For discussion, see Forsyth, op. cit. n. 7, at pp. 129–133.
90 See, inter alios, Oliver, op. cit. n. 5; Craig, op. cit. n. 37, at pp. 15–16 and op. cit. n. 8, at p. 70.
91 See principally R v. Criminal Injuries Compensation Board, ex parte Lain  2 Q.B. 864; Council of Civil Service Unions v. Minister for the Civil Service  A.C. 374; R v. Panel on Take-overs and Mergers, ex parte Datafin plc.  Q.B. 815.
92 Op. cit. n. 8, at p. 70. See also Craig, op. cit. n. 37, at pp. 15–16.
93 Gillick v. West Norfolk and Wisbech Area Health Authority  A.C. 112. This case concerned judicial review of ministerial guidance to doctors relating to the provision of contraceptive advice to minors. In fact, Lords Fraser and Scarman (at pp. 166 and 177, respectively) thought that the advice was issued pursuant to a statutory discretion created by the National Health Services Act 1977, s. 5(1)(b), so that the traditional ultra vires doctrine could apply. However, Lord Brandon did not take this point, and Lords Bridge and Templeman (at pp. 192 and 206, respectively) agreed that the advice was not issued under any statutory authority, but that review could nevertheless lie.
94 H.W.R. Wade, “Judicial Review of Ministerial Guidance” (1986) 102 L.Q.R. 173, 175.
95 For example, in Council of Civil Service Unions v. Minister for the Civil Service  A.C. 374, 411, Lord Diplock stated that the grounds of review based on “illegality” and “procedural impropriety” apply both to statutory and prerogative power; he also said that there is “no a priori reason to rule out ‘irrationality’ as a ground for judicial review of ministerial decisions taken in exercise of prerogative powers”, although he explained that the fields which are still governed by prerogative power are such that judicial review will lie less frequently because “[s]uch decisions will generally involve the application of government policy” and are therefore likely to be non-justiciable.
96 Of course, the precise content of the grounds of review, and the intensity with which they are applied, varies according to the context. As regards review of statutory power, the legislative framework may well indicate, for example, what fairness requires and which considerations are relevant and irrelevant. In relation to non-statutory power similar guidance may exist, but in more diffuse form. For instance, in R. v. Panel on Take-overs and Mergers, ex parte Datafin plc.  Q.B. 815, 841, Lord Donaldson M.R. said that the court could intervene if (inter alia) the Panel misconstrued its Code, thereby leading it to commit what would be an “error of law” but for the non-legal character of the Code. However, the Panel had to be given a generous margin of appreciation in discharging this interpretive function because it could choose to change the rules at any time, and because of their open-textured nature. Nevertheless, in spite of this context-sensitivity in judicial application of the grounds of review, it remains the case that, at root, the courts apply the same broad requirements of fairness and rationality irrespective of the source of the power concerned.
97 Op. cit. n. 9, at pp. 4.18–4.19.
98 Particularly in light of the likely impact of the Human Rights Act. 99 T.R.S. Allan, op. cit. n. 80, at p. 112.
99 T.R.S. Allan, op. cit. n. 80, at p. 112.