Download Constitutional Dialogue and the Justification of Judicial Review

Oxford Journal of Legal Studies, Vol. 23, No. 4 (2003), pp. 563–584
Constitutional Dialogue and the
JustiWcation of Judicial Review
T. R. S. ALLAN*
Abstract—The lively debate over the constitutional foundations of judicial review
has been marred by a formalism which obscures its point and value. Abstracted from
genuine issues of substance, the rival positions oVer inadequate accounts of the
legitimacy of judicial review; constitutional theory must regain its connection with
questions of political principle and moral value. Although the critics of ultra vires
have rightly emphasized the foundational role of the common law, they have
misconceived its nature and implications. On the one hand, they have invited the
charge of judicial supremacism by marginalizing the role of legislative intent; on the
other, their aYrmation of absolute parliamentary sovereignty (within the context of
this debate) undermines the critique of ultra vires. In substance, therefore, the rival
camps occupy essentially the same ground, equally trapped by a formalism that
entrenches a stark confrontation between parliamentary sovereignty and the rule of
law. A conception of shared sovereignty, or interdependent sovereignties, provides
a better foundation for judicial review.
1. Introduction
Judicial review of executive action raises important questions about the separation of powers and, where administrative powers are conferred by statute, fundamental questions arise concerning the relationship between parliamentary
sovereignty and the rule of law. The search for descriptive accuracy, as regards
the nature of judicial review, is inseparable from normative justiWcation: the
practice must be interpreted in the light of its purpose or rationale, reXecting
settled principles and shared assumptions. Our explanations of administrative
law must draw on our understanding of constitutional theory; and our theory
is undergoing urgent reappraisal. A new understanding of the fecundity of
the common law as a source of fundamental values—a wider appreciation of the
importance of the common law constitution—has shaken previously settled
dogmas and questionable assumptions.1
* Reader in Legal and Constitutional Theory, and Fellow of Pembroke College, University of Cambridge. Paul
Craig and Peter Cane have kindly commented on an earlier draft of this article. Comments by David Dyzenhaus
and other participants at a legal theory workshop at the Faculty of Law, University of Toronto, are also gratefully
acknowledged.
1
For an overview of UK developments, see Thomas Poole ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 OJLS 435. See also Mark D. Walters ‘The Common Law Constitution in
Canada: Return of Lex Non Scripta as Fundamental Law’ (2001) 51 UTLJ 91.
Oxford Journal of Legal Studies, Vol. 23, No. 4,  Oxford University Press 2003; all rights reserved
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Yet the vigorous debate in public law over the constitutional foundations of
judicial review has often seemed strangely detached from the most important
questions of legitimacy. The defenders of the ultra vires doctrine, locating the
basis of judicial review in legislative intent, have emphasized the importance of
parliamentary sovereignty, making the judges subservient to the will of elected
representatives. But they have not denied—indeed rather celebrated—the creative
contribution of the common law to the development of legal principles, binding
on the executive. And though their ‘common law’ adversaries have repudiated
all reliance on legislative intent, as regards the true foundations of judicial
review, they have not denied but instead aYrmed the unqualiWed sovereignty of
Parliament, at least as a matter of present constitutional arrangements in the
United Kingdom.2 Conducted in abstraction from rival accounts of legislative
sovereignty or ‘intent’ or of the rule of law, and having no particular consequences
for judicial doctrine, the purpose and value of the current debate remain somewhat obscure.3
We may nevertheless be able to harness the debate to a broader inquiry into
constitutional principles, connecting its principal themes with important questions of legal authority and interpretation. We might make most sense of the
common lawyers’ opposition to the ultra vires doctrine, despite their disclaimers,
as an implicit challenge to the unqualiWed sovereignty of Parliament: if certain
principles of legality are fundamental, their authority should not be conceived as
dependent on any merely contingent legislative intent. Constitutional theory
should seek to accommodate (and hence conWne) parliamentary sovereignty
within a framework that gives pride of place to the rule of law.4 There would
then be a genuine joinder of issue with the ultra vires lawyers, who doubt the
legitimacy of such a challenge.5
When we reconstruct the debate in this way we can enrich our grasp of constitutional theory by exposing a false antithesis that so often impedes our understanding. For the controversy over the role of ‘legislative intent’ in judicial
review echoes the familiar arguments over sovereignty. The foundational role of
legislative intent is either aYrmed or denied, just as we are expected to choose
between parliamentary and judicial supremacy. Since, however, both sources of
law are usually relevant to the legality of administrative action, the choice
between legislative intent and the common law, as regards the basis of judicial
review, is as arbitrary as a choice, more broadly, between parliamentary and
2
For many of the principal contributions to this debate, see Christopher Forsyth (ed), Judicial Review and the
Constitution (Oxford: Hart Publishing, 2000). For comment on the competing claims, see T.R.S. Allan ‘The
Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry’ [2002] CLJ 87.
That essay has elicited a vigorous response: see Paul Craig ‘Constitutional Foundations, the Rule of Law and
Supremacy’ [2003] PL 92.
3
The reader must judge how far Paul Craig’s new essay dispels the obscurity: see Craig, ‘Constitutional Foundations’, above at 92–95.
4
See T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press,
2001), hereafter referred to as Constitutional Justice, especially ch 7.
5
See Christopher Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra vires Doctrine, the Sovereignty of Parliament
and Judicial Review’ in Forsyth (ed), Judicial Review and the Constitution.
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judicial supremacy. In a common law legal order there must be a dialogue
between courts and legislature; and questions of constitutional authority are
resolved by a mode of adjudication faithful to the legislative intent, fairly construed,
within the constraints of reason that the rule of law provides.
The common law critics have alleged that the legislative intent invoked by the
ultra vires doctrine is Wctitious: the principles that regulate the lawful exercise of
administrative discretion owe their existence and character to the common law.
The doctrine overlooks the historical development of the remedies available for
abuses of power, by ignoring their common law origins, and obscures the reasons
for their application to the diVerent types of abuse; such reasons are usually
independent of any ‘speciWc’ legislative intention. The ‘intention of Parliament’
is dismissed as a ‘Wg-leaf’ which obscures the true basis of judicial review and
should be discarded in the interests of intellectual honesty.6 There is, however, a
danger of overreaction to such (alleged) deWciencies; common law constitutionalism must be saved from a new formalism that now threatens to displace the old.
In its most abstract guise, seeking to accommodate the insights of the common lawyers, the more modest—or ‘modiWed’—ultra vires doctrine is intended
to operate at the level of constitutional foundations. It proposes that we should
attribute to Parliament a general intention that administrative powers must be
exercised in accordance with the rule of law, leaving the courts to determine the
speciWc content of the rule of law.7 It has drawn the charge of vacuity, on the
ground that the ‘legislative intent’ is merely presumed, authorizing the courts to
proceed as they think Wt in accordance with common law doctrine.8 The fairness
of this charge is placed in doubt, however, if we deny the rigid dichotomy
between legislative will and common law reason that it assumes; for there is a
perfectly cogent, if ‘constructive’, sense in which we may attribute to members
of Parliament a general intention to preserve the essentials of the rule of law.
There is, it seems to be conceded, an intention in respect of matters necessarily
implied by the text even if such matters were never actively considered by its
authors. We can say with some conWdence that they took certain things for
granted. But then it is not clear why we might not enjoy a similar conWdence
about other shared assumptions even if the text could be read, without selfcontradiction or incoherence, in a diVerent sense. So when a statute confers
administrative powers in a constitutional context that provides in ordinary cases
for judicial review on established grounds, it is reasonable to assume that the
ordinary principles of administrative law were intended to apply, unless there are
6
See, e.g. Sir John Laws ‘Law and Democracy’ [1995] PL 72, and Paul Craig, ‘Ultra Vires and the Foundations
of Judicial Review’ in Forsyth (ed), Judicial Review and the Constitution.
7
See Mark Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ and ‘Legislative Intention Versus Judicial Creativity? Administrative Law as a Co-operative Endeavour’
in Forsyth (ed), Judicial Review and the Constitution; and generally Elliott, The Constitutional Foundations of Judicial
Review (Oxford: Hart Publishing, 2001).
8
See Paul Craig, ‘Competing Models of Judicial Review’ in Forsyth (ed), Judicial Review and the Constitution,
and Paul Craig and Nicholas Bamforth ‘Constitutional Analysis, Constitutional Principle and Judicial Review’
[2001] PL 763 at 771–72.
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indications to the contrary. An enactment draws its full meaning from an extensive background of collective understanding and assumption that any faithful
interpretation must try to clarify and accommodate. Implicit assumptions
include settled legal principles, usually embodied in general ‘presumptions’ of
parliamentary intent; such presumptions assist in identifying the true meaning of
what, without reference to the settled constitutional background, would be a
string of words bereft of their essential context.
We may imagine a dialogue between the judge and the representative legislator, testing our assumptions and textual inferences, and resulting in varying
degrees of conWdence about legislative intention according to the scope of our
inquiry. Or we may envisage a similar dialogue in Parliament when the executive
defends its legislative proposals. Sir Stephen Sedley’s ‘oYcious backbencher’,
whose imaginary request for assurance that new powers are to be exercised in
accordance with established principles is met without demur—though created in
jest—is hardly out of place in a democracy wedded to the rule of law.9 It is
precisely our conWdence about the minister’s answer that aYrms the existence of
the general intent. The justice of the common law may indeed ‘supply the omission of the legislature’,10 in the sense that Parliament has failed to make express
provision for fair hearings or remedies for various sorts of abuse, but it does not
follow that what we ‘add’ to the statutory scheme was not, in a genuine sense, an
intrinsic element all along.
The opposition between parliamentary sovereignty and the rule of law has
been conceived too starkly. On close examination these principles are more
interdependent than independent, enabling legislative will and common law reason
to be combined in accordance with the demands of justice and the common
good. When that interdependence is properly understood, we can begin to meet
the objections to ‘judicial supremacism’ that any suggestion of limits to parliamentary sovereignty inevitably provokes. In the practice of adjudication, sensitive to the competing demands of legal principle and public policy, in all their
inWnite combinations, the stark dichotomy between legislative intent and common law doctrine fades from view. There is, at the deepest level, a genuine sense
in which we may grant Dicey’s claim that parliamentary sovereignty serves the
rule of law.11 The legislative will constrains the powers of the executive because
the common law, as the ultimate guarantor of the rule of law, makes that will
predominant, within modest boundaries of good faith and constitutional
justice.12
If the ‘modiWed’ version of ultra vires is vulnerable, it is surely in its insistence
that Parliament might repudiate the rule of law by giving explicit instructions
that have that consequence. We should resist the extravagant claim that Parlia9
Sir Stephen Sedley, ‘The Common Law and the Constitution’ in Lord Nolan of Brasted and Sir Stephen
Sedley, The Making and Remaking of the British Constitution (London: Blackstone Press, 1997) at 16–17.
10
Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194.
11
A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, London: Macmillan, 1959) at 406.
12
See further Constitutional Justice at ch 7.
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ment might ‘create arbitrary discretionary power to which no requirements of
fairness and rationality attach’.13 Such requirements constitute the diVerence
between law and illegitimate coercion—between constitutionalism and totalitarianism.14 Mark Elliott naturally thinks it ‘absurd’ to suppose that Parliament
might be indiVerent to the application to statutory agencies of the normal precepts of administrative legality, rejecting suggestions of legislative ‘agnosticism’
in that regard.15 But it must be equally absurd to suppose that Parliament could
be understood as having intended to abrogate the rule of law, even if it may
authorize restrictions on the scope of judicial review for limited, and legitimate,
purposes. The same perceptions of ‘absurdity’ that limit the horizons of our
world, in the context of statutory interpretation in particular cases, impose what
are in substance genuine constraints on the scope of legislative power. The
‘common law’ critics of ultra vires, moreover, must be challenged on precisely
similar grounds; indeed, their position is indistinguishable. For they, too, believe
that the rule of law is ultimately at the mercy of a hostile legislative will: Parliament, they insist, always retains the ‘last word’.16
The stark dichotomy between legislative intent and common law principle
readily generates confusion. In its attack on the coherence of ultra vires, the common law position seems to draw, or entail, a curious distinction between the
grounds of review, attributed to the common law, and their application to particular
instances, where in the case of a statutory power the importance of legislative
intent can scarcely be coherently denied. Yet the various categories of administrative error—such as illegality and irrationality, or more narrowly, improper
purposes and irrelevant considerations—have no identiWable content except in
relation to the exercise of particular powers in particular instances. They attach a
label to the court’s conclusions about the existence of injustice or impropriety,
based on analysis of all relevant circumstances, and in most cases there is a
choice of labels, leaving the substance unaVected.17 In some cases, an overarching
concept of ‘abuse of power’ may oust more narrowly deWned varieties of error.18
And in a statutory context, an abuse of power cannot be identiWed without close
attention to the legislative text, interpreted according to some conception of statutory purpose or intent, subject only to any limitations on legislative power.19
In view of the highly contextual nature of the grounds of review in practice, it
is diYcult to accept the argument that, though legislative intent is plainly relevant,
13
Mark Elliott ‘The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review’
(1999) 115 LQR 119 at 132.
14
Cf. David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy
(Oxford: Clarendon Press, 1991) at 251–57.
15
See Elliott, ‘Legislative Intention versus Judicial Creativity’ above n 7 at 355–56.
16
See further Allan, above n 2 at 101–108.
17
See, e.g. Wheeler v Leicester City Council [1985] AC 1054.
18
See, e.g. Preston v Inland Revenue Commissioners [1985] AC 835.
19
The necessarily constructive nature of legislative intent, dependent on our evaluations of unfolding events,
should not lead us to deny the cooperative nature of the judicial function. Fuller suggested that we should speak of
the ‘intention of the statute’ in view of the inescapably creative nature of interpretation faithful to its authors’ general
purposes: see Lon L. Fuller, The Morality of Law (revised edn, New Haven and London: Yale University Press,
1969) 82–91.
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‘the heads of review, their meaning or the intensity with which they are applied’
must be justiWed quite independently.20 For that suggestion places intolerable
weight on the distinction between the practical eVect of the grounds of review
and the statutory context in which that eVect is generated. Questions of meaning
and intensity cannot be neatly divorced from the questions of legislative purpose
and intent with which the common law must grapple to produce a determinate
outcome. There is, moreover, no categorical diVerence, on analysis, between
cases where Parliament ‘does manifest a speciWc intent’,21 which must be loyally
accepted, and those where such intent is harder to discern. The true question, in
every case, is whether judicial intervention is properly consistent with legislative
intent, having regard to the legislative purpose and whatever qualiWcations of
that general purpose can reasonably be implied (or perhaps, in certain instances,
imposed).22
Moreover, the concession that it ‘is always open to Parliament to decide that
the legal rules which govern an area should be diVerent from those developed at
common law’23 does little to restore the coherence of the common lawyers’
stance. It is both too much and too little. It loses sight of the fundamental character of the principles of legality, abstractly conceived, while simultaneously
downgrading the proper role of the legislative will in the resolution of particular
cases. For legislative intent, as the embodiment of that parliamentary will, must
be critical to the application—and hence the concrete meaning—of the common
law grounds of review, if the statutory purposes are to be taken seriously. In this
form, then, the rejection of ultra vires amounts to a form of judicial supremacism, marginalizing legislative intent in the operation of judicial review, except
where Parliament has, at the outer limits of judicial power, claimed the ‘last
word’. Parliamentary sovereignty divorced from legislative intent, except in special
cases where the text is unusually explicit, is a sovereignty wielded largely by the
judges who determine the statute’s consequences in ordinary cases. The price of
the common lawyers’ repudiation of legislative intent is, accordingly, the aYrmation of a doctrine of parliamentary sovereignty as weak and formal—for the
great majority of ordinary cases—as the doctrine of ultra vires they set out to
challenge.
If, then, we grant the importance of legislative intent in the proper application
of the grounds of review, where the relevant powers are statutory, the ultra vires
doctrine can be shielded from attack. We must recognize, nonetheless, that the
various common law grounds of review are (abstract) expressions of a principle
of legality that enjoys a fundamental status. Whether at the level of constitutional foundations or, more mundanely, in our appraisal of speciWc administrative action, we must seek to reconcile the authority of Parliament with the rule of
20
See Craig, above n 6 at 49, and ‘Competing Models’, n 8 at 374.
Craig, above n 8 at 374.
The reiterated concession that any ‘speciWc legislative intent’ will be taken into account cannot therefore save
the ‘common law model’ from dogmatism (see Craig, above n 2 at 95).
23
Craig, ‘Competing Models’, above n 8 at 383.
21
22
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law. The common law is fundamental in the sense that the demands of the rule
of law are ultimately a matter of reason; and the legislative will can only be
understood and applied in the light of reason, informed by our most deep-seated
constitutional values.24 That is the underlying truth of the ‘common law model’,
properly understood. But we should not simply banish legislative intent from our
account of the justiWcation of judicial review; for then we deny the democratic
will that any British version of the rule of law must respect and, so far as possible,
accommodate.
2. Legislative Will and Common Law Reason
When judgments of legality, rationality, or fairness are properly respectful of
parliamentary authority, legislative intent must play a critical role in any review
of the exercise of statutory powers. The identiWcation of errors of law or irrelevant
or extraneous considerations or improper purposes must depend on analysis of
the statutory scheme, even if, as abstract concepts that express fundamental
ideas, such grounds of review owe their validity to the common law. When the
court quashes the decision of an oYcial for a mistaken interpretation of the statute
that confers his powers, it is normally on the basis that the oYcial has contravened the legislative intent, correctly ascertained. Common law reason comes to
the rescue of the legislative will.
It does not follow that the court should intervene whenever its reading of the
statute diVers from the oYcial’s reading: Parliament may have intended to confer
a degree of administrative autonomy with respect to matters of construction. It is
true that the court will face diYcult questions of judgment in determining the
proper scope of that autonomy, questions that the statutory text will not explicitly resolve. Considerations of constitutional propriety will help to determine
the proper division of authority between the court and the executive; the common
law will contribute to the context in which such judgments are made. Nonetheless, insofar as the court’s decision fairly reXects the nature and purposes of
the statutory scheme as a whole it may be said to respect the legislative will: the
oYcial is permitted whatever measure of interpretative freedom best meets the
needs of that general scheme. Any other decision, whether to intervene or
abstain from intervention, would be inconsistent with legislative intent, broadly
conceived.
It is only when one emphasizes the interpretative freedom of the judges as
regards their power of review for ‘error of law’, ignoring the statutory context
that properly governs its exercise, that the connection with legislative intent disappears from view. Regarded in abstraction from the context, whether statutory
or non-statutory, that supplies its concrete meaning in any particular case, the
common law doctrine of ‘jurisdictional error’ is powerless to generate speciWc
24
See further Constitutional Justice, above. See also Mark D. Walters ‘Common Law, Reason, and Sovereign
Will’ (2003) 53 UTLJ 65.
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conclusions about the limits of executive powers. In ignoring (or downgrading)
the crucial role of the statutory context—and hence the legislative purpose or
intent that informs the grant of a statutory power—the common law model of
judicial review is at least as vulnerable to the charge of empty formalism as the
rival theory it challenges.
If, of course, it were possible to construct a purely analytic or conceptual
distinction between jurisdictional and non-jurisdictional errors, capable of application with little or no regard for the speciWc administrative context, it would
make more sense to argue that the common law did all the necessary work. Even
the slightest acquaintance with the relevant case-law, however, is enough to
conWrm what is really an obvious consequence of the breadth of the terrain ruled
by the principles of administrative law—that the proper scope of review, and the
practical eVect of analytic distinctions between diVerent species of error, depend
on such variables as the identity of the oYcial, the nature of his decision, and the
relevant statutory framework. The distinction between jurisdictional and nonjurisdictional errors, like the related distinctions between law, fact, and policy,
acquire a concrete content only in relation to speciWc instances of administrative
action, where they reXect the court’s conclusions about the most appropriate
division of responsibility between court and agency in all the circumstances.25
Legislative intent is therefore critical to the concrete application of the common law grounds of review. Such intent is admittedly a ‘constructive’ rather
than ‘literal’ one. We need not suppose that members of Parliament form settled
views about the appropriate incidence of the grounds of review in hypothetical
cases of administrative error.26 But we determine such questions, when actual
cases of alleged impropriety arise, in the light of the assumptions and purposes
that underlie or inform the statutory scheme. The restrictions on the scope of
administrative discretion will, of course, reXect the court’s judgment about what,
all things considered, is appropriate action to take in furtherance of the legislative
purpose; and that judgment will draw on a range of constitutional values. Since,
however, those values must be given practical content in a speciWc administrative context, in a manner consistent with the statutory objectives, we may as
properly ascribe the outcome to legislative intent as to the common law.
The common lawyers, then, have mistaken the properly ‘constructive’ understanding of legislative intent for a more ‘literal’ version, in which immediate
political ends ride roughshod over more enduring constitutional values. Sir John
Laws, for example, fears that unqualiWed deference to the legislative will endangers constitutional rights, which may not receive the same veneration in Parliament as they enjoy in court.27 Reference to Hansard may show all too clearly that
25
See further Allan ‘Doctrine and Theory in Administrative Law: An Elusive Quest for the Limits of Jurisdiction’
[2003] PL 429. See also J. Beatson ‘The Scope of Judicial Review for Error of Law’ (1984) 4 OJLS 22.
26
The absence of any relevant intent, thus conceived, is a dominant, if dubious, theme in the literature: see Sir
John Laws, ‘Illegality: The Problem of Jurisdiction’ in M. Supperstone and J. Goudie (eds), Judicial Review (London:
Butterworths, 1997) at 4.17–4.18; Andrew Halpin ‘The Theoretical Controversy Concerning Judicial Review’
(2001) 64 MLR 500 at 504.
27
Sir John Laws, ‘Illegality’, above at 4.17–4.19.
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the statute was intended to authorize executive action that would violate such
rights. By attributing everything to the intention of the legislature, the ultra vires
doctrine may ‘obscure and undermine’ the judges’ constitutional duty: the ‘goodness of the common law’ may be made to bow too deeply to the ‘legislature’s
wisdom’.28
Laws’s repudiation of legislative intent assumes too stark a contest between
legislative will and common law principle. His approach seems to mock the doctrine of parliamentary sovereignty that he supposedly accepts, inviting charges of
judicial supremacism. It envisages, in substance, a battle of competing institutional allegiances, the legislative will confronting the reason of the common law,
when we should instead be seeking an accommodation between them, fairly
reXecting both statutory purposes and common law values in some reasonable
conjunction. Laws is right to recognize that the principles of administrative
legality are, in some sense, fundamental; but he overlooks the collaborative
nature of the task of giving them concrete practical expression. It is as wrong to
diminish the role of the legislative will in adapting the grounds of review to the
administrative context as to argue, at the other extreme, that Parliament can
‘abrogate the rule of law’ by express provision.29
The limits of parliamentary sovereignty are ultimately supplied by the interpreter’s understanding of the fundamental precepts of the rule of law—those
basic commitments that almost everyone can reasonably be taken to endorse, at
least at a suitably abstract level. They include principles of procedural fairness
and legal equality, as well as freedoms of speech, conscience and association.30
The graver the risk that a legislative provision might threaten such basic commitments, on a ‘literal’ reading, the harder the interpreter will struggle to Wnd an
alternative reading. Nor should we envisage a process that Wnally comes to a halt
in the face of a clause that proves unyielding, despite the interpreter’s best
endeavours. For there is always something more to be said in our imaginary
dialogue. We can almost always ask, with perfect propriety, whether a provision
that might have appalling consequences for the case in hand could not be more
faithfully read in a qualiWed manner, avoiding those consequences.
A statute, in contradistinction to an administrative ‘measure’, is a general rule;
and since there is, accordingly, no legislative intent with regard to the particular
case, in all its complex singularity, but only in relation to some category of cases
into which it arguably falls, there is usually room for legitimate manoeuvre. The
judicial task is to reconcile legislative supremacy with the rule of law in so far as
intellectual honesty allows. The presumption that elected legislators intend to
28
Ibid at 4.19.
Ibid at 4.23–4.26.
See further Allan, Constitutional Justice. The special status of these latter rights derives from their speciWcally
constitutional character, internal to the concept of law (grounded in appeal to individual conscience) which
I explain and defend in chs 2–4. (It may also be thought intrinsic to—implicit in—the deliberative (Rawlsian) experiment Craig contrives in his attempt to deny such prior status: see Craig, ‘Constitutional Foundations’ at 99–100.)
For connections with the common law tradition (especially St German’s views on law and conscience) see
Mark D. Walters, above n 24.
29
30
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honour the most fundamental requirements of the rule of law can scarcely be
controversial in a liberal democracy that preserves a basic separation of powers
between the principal organs of government. That presumption might be
contradicted by express provision in extreme cases: an act of attainder, plainly
violating principles of equality and due process, would not be consistent with the
rule of law.31 And a provision that enabled the executive to inXict analogous
iniquities would have to be repudiated, or at least very narrowly and restrictively
‘interpreted’; in these circumstances, ultra vires would indeed be a ‘Wg-leaf’,
disguising judicial disobedience.32
In ordinary cases, however, in ordinary circumstances, there is no sharp line
between genuine interpretation, respectful of legislative intentions, and pretended ‘interpretation’, rewriting the statute afresh: there is only our imaginary
dialogue, conducted in good faith with draftsmen and legislators whose commitments to constitutional justice, at the deepest level, we must take broadly to
match our own. An interpretation truly faithful to the legislative intent is one
respectful not only of the author’s explicit (or necessarily implicit) instructions,
but also of the qualiWcations or exceptions that the context reasonably requires.
An element of creativity is inherent in the task of adapting the text to the insistent demands of unfolding events.33
Sir Rupert Cross captured the essence of the matter in his statement that the
‘presumptions of general application’, safeguarding well established legal principles, not only ‘supplement the text’ but ‘also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations
between Parliament, the executive and the courts’.34 The legislative will is
always, therefore, subject in its practical application to common law reason;
general intentions can only be executed in speciWc instances by recourse to
collective reason and ‘common sense’. As Coke explained the point, though
somewhat brusquely, ‘some statutes are made against law and right, which those
who made them perceiving, would not put them in execution’.35
The ideal of the rule of law is threatened when Parliament entrusts the
executive with a power to determine the punishment of a murderer, allowing
a politician to undertake what is normally a judicial function. If the Home
Secretary allows his judgment to be aVected by the popular outrage induced by a
notorious crime—acceding to ‘public clamour’—he contravenes basic precepts
of equality and due process, infringing the principle of separation of powers.36
When the courts intervene, insisting that the minister’s power must be exercised
31
Constitutional Justice at ch 5.
Ibid at ch 8.
Ibid, 127–28. Cf. Fuller, The Morality of Law, above, and Anatomy of the Law (Harmondsworth: Penguin
Books, 1971) 82–87.
34
Sir Rupert Cross, Statutory Interpretation, 3rd edn by John Bell and Sir George Engel (London: Butterworths,
1995) at 165–66.
35
Dr Bonham’s case (1609) 8 Co Rep 107 at 118. See further Constitutional Justice at ch 7.
36
See R. v Secretary of State for the Home Department, ex p Venables [1997] 3 WLR 23. For analysis, see
Constitutional Justice at 142–48.
32
33
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judicially, they may be thought to be in danger of frustrating the legislative will.
The judges who dissented in Venables observed that Parliament had intended the
Home Secretary to gauge ‘public concern’ in relation to particular cases as part
of his task of maintaining conWdence in the system of criminal justice. In Pierson,
where the House of Lords majority held it unlawful for the minister retrospectively to increase a ‘tariV’ sentence, the same dissentients objected that the
imposition of quasi-judicial constraints subverted Parliament’s choice to leave
the question of the release of murderers in the hands of the executive.37
Formally, these decisions are quite consistent with both parliamentary sovereignty and ultra vires, notwithstanding the dissentients’ objections. The judicially
imposed constraints on executive action can be presented, without distortion, as
proceeding from a persuasive interpretation of the Criminal Justice Act. It is an
interpretation that constitutional principles commend and it is not explicitly forbidden: the prima facie ‘assumption’ that ‘Parliament legislates for a European
liberal democracy founded on the principles and traditions of the common law’
had not been ‘displaced by a clear and speciWc provision to the contrary’.38 In
substance, however, the court had met a grave threat to the ‘constitutional
principle of separation of powers’39 by invoking a presumption of intent of
appropriate force. Parliamentary authority was thereby curtailed, or qualiWed, in
the sense that the ‘plain’ meaning, matching the immediate legislative context,
was displaced by the ‘true’ meaning—one that reXected well founded judgments
of constitutional propriety. We might still square these conclusions with parliamentary sovereignty, if we wish, on the (constructive) basis that the legislature
must be assumed to aYrm the rule of law, in a suitably abstract understanding of
that ideal: a grave threat requires an appropriately robust response. We have
joined the constitutional dialogue that common law reason commends.
3. Parliamentary Sovereignty, Legislative Intent,
and Common Law Principles
In refusing to choose between legislative will and common law principle as the
basis of judicial review, we must steer an equally independent path between
competing conceptions of legislative intention. A radically ‘constructive’ account,
permitting the substitution of judicial for legislative purposes, would honour the
authority of Parliament mainly in the breach. An overly ‘literal’ approach,
neglecting the imaginary dialogue I have described, would endanger the rule
of law by leaving constitutional values inadequately protected. Of course, we
cannot identify the correct path with great precision: we must negotiate its
course by the exercise of practical judgment, as occasion demands. We can,
37
R. v Secretary of State for the Home Department, ex p. Pierson [1997] 3 WLR 492 at 504–508 (Lord BrowneWilkinson) and 510–13 (Lord Lloyd).
38
Ex p Pierson, above at 518 (Lord Steyn).
39
Ex p Venables, above at 74 (Lord Steyn).
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however, clarify our understanding by marking the errors that mar the existing
accounts of judicial review.
As it has been presented, the ‘common law model’ embraces both extremes at
the same time. While marginalizing the legislative intent that informs the application of the grounds of review, it nevertheless takes a literal view of ‘explicit’
provisions that threaten fundamental values. The common lawyers’ rejection of
legislative intent, as regards the justiWcation of judicial review, is scarcely consistent with the legislative supremacy they purport to accept; and their view that
Parliament might ‘abrogate’ the rule of law, by explicit provision, undermines
the only Wrm foundation for their rejection of ultra vires.
JeVrey Goldsworthy has emphasized the close connection between legislative
authority and legislative intention.40 In his view, scepticism about legislative
intentions threatens the doctrine of legislative supremacy by leaving judges free
to impose their own purposes and values, amending or overriding statutes as
they see Wt. If literal meanings must often be rejected, to avoid absurd or unreasonable consequences, statutes must be interpreted in accordance with their true
meanings, which properly reXect underlying intentions and purposes. These are
either the intentions and purposes of the legislature or those of the judges; and
on that distinction rests the diVerence between legislative and judicial supremacy.
As Goldsworthy summarizes the argument:
The judicial role is that of an agent striving to interpret and apply statutes equitably, so as
better to serve the legislature’s values, intentions and purposes. If, instead, the judiciary
can change or override the literal meanings of statutes to make them consistent with its
own values, intentions or purposes, then it has eVective supremacy over statutes.41
Now, the various principles of administrative legality to which judges subject
public oYcials cannot be derived from any literal reading of the statutes that
confer the relevant powers; yet such principles plainly limit the manner of exercise, and sometimes the scope, of these powers. Constraints of legality and
rationality not only forestall the misuse of powers on improper grounds, contrary
to the statutory purposes, correctly conceived, but may serve to protect the welfare of those whose interests would otherwise be too freely sacriWced to the
eYcient pursuit of genuine public goals. If, however, such limitations on the
statutory powers of oYcials must be ascribed entirely to the common law, rather
than to legislative intent, as the common lawyers maintain, parliamentary sovereignty has plainly been curtailed, indeed abandoned. The courts are not acting as
agents of the legislature, seeking to serve Parliament’s purposes, as Goldsworthy
commends, but instead overriding literal meanings, or at any rate qualifying
them, in order to advance judicial conceptions of legality and administrative
propriety.
40
JeVrey Goldsworthy, ‘Legislative Intentions, Legislative Supremacy, and Legal Positivism’ in J. Goldsworthy
and T. Campbell (eds), Legal Interpretation in Democratic States (Aldershot: Ashgate, 2002).
41
Ibid at 66.
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The answer to such a challenge is, of course, to revise its premise: if we
acknowledge the genuine senses in which judicial review furthers the legislative
purpose, in accordance with legislative intent, fairly construed, the charge of
judicial supremacism is refuted. Goldsworthy and the common lawyers are alike
in exaggerating the division between legislative and judicial values and purposes;
and it is this distortion which fuels the dubious expedient on which the common
lawyers rely. They insist that, though the various principles of administrative
legality Wnd their source in common law doctrine, Parliament retains the power
to override the common law by explicit enactment. Though unlikely as a matter
of practical politics, it is supposed that, in theory, Parliament might amend or
abrogate the common law grounds of judicial review. The long established
approach, we are told, is ‘for the courts to develop the grounds as they see Wt’.42
If Parliament does not like the result it can always ‘make this unequivocally
clear, and the courts would then abide by the result’. Parliamentary sovereignty
survives, in short, because ‘present doctrine still leaves it to Parliament to have
the last clear and unequivocal word’.43
As a response to the charge of judicial supremacism, that defence must surely
be accounted an illuminating failure. The marginalization of legislative intent in
ordinary cases—the refusal to acknowledge its foundational role—has artiWcially
divorced the grounds of review (as regards meaning and substance) from their
practical application; yet the practical application is plainly critical in meeting
challenges to the legitimacy of judicial review. Critics of judicial review, who
may fear that judges are in danger of overlooking or overriding legislative objectives
in their pursuit of common law values, are therefore unlikely to be reassured.
They are likely to think Parliament’s theoretical power to abrogate established
principles of legality an inapt, and somewhat fanciful, safeguard.
The common lawyers invite us, implausibly, to imagine that Parliament might
expressly prohibit judicial review for ‘illegality’ or ‘irrationality’ or ‘procedural
impropriety’, and to acknowledge its right to do so. But the genuine issue, of
course, concerns the nature and scope of the judges’ powers to overturn administrative decisions by invoking those highly abstract concepts—concepts which
could be expunged altogether from the courts’ concern only at the price of abandoning the rule of law. What is most important here is the mode of exercise of
judicial review, rather than its continuing existence. It is the manner in which
the courts determine the existence of ‘illegality’ or ‘irrationality’ or ‘procedural
impropriety’ in particular cases that should engage our attention; these grounds
are, after all, only ‘common law’ labels for conclusions about the propriety of
speciWc acts or decisions in particular circumstances. If legislative intent is not
fundamental to such judgments, when the source of the relevant powers is statutory,
the common law school has, in eVect, abandoned parliamentary sovereignty for
judicial supremacy.
42
43
Craig, ‘Competing Models’, above n 8 at 390.
Craig, above n 2 at 109.
576
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Paul Craig oVers ‘proportionality’ as an example of a ground of judicial review
that the legislature might remove, ‘either generally or in some speciWc context’.44
The implausibility of this suggestion is evident from the diYculty of distinguishing—except in a purely formal or conceptual manner—between proportionality
and ‘heightened’ or ‘anxious’ scrutiny in application of rationality review. Could
Parliament also expressly deny that the court is ‘entitled to subject an administrative decision to the more rigorous examination . . . according to the gravity of
the issue’ being decided?45 May it outlaw the common law principle, arguably
central to the rule of law, that the ‘more substantial the interference with human
rights, the more the court will require by way of justiWcation before it is satisWed
that the decision is reasonable’, where the meaning of ‘reasonable’ reXects the
human rights context in point?46 Perhaps it is thought that Parliament might
prohibit the imposition of any rationality requirement altogether, even where
review for ‘illegality’, if that could be suYciently distinguished, survived the
legislative scythe?
What these hypothetical questions reveal is that the development of common
law grounds of review, expressing an ideal of administrative legality, entails some
(modest) limitation of legislative sovereignty because it alters the political landscape in which Parliament and its authorized executive agents act. The common
law basis of judicial review is worth emphasis only as part of a reconstruction of
constitutional theory that acknowledges the interdependence of legislative and
judicial power. Elsewhere, Craig has himself conceded that the notion of a
statute prohibiting the application of a proportionality test is quite artiWcial:
‘even accepting traditional notions of sovereignty can one realistically imagine
such a statute being drafted and enacted?’47 But while he clings to the view that
such a statute would be valid and eVective ‘in theory’, he renders his theoretical
stance as weak as the example now oVered in its defence.
The courts’ refusal to take ouster or preclusive clauses at face value—rejecting
a literal interpretation of provisions excluding judicial review altogether—
conWrms the implausibility of Craig’s example.48 The total exclusion of judicial
control is only a stronger version of the curtailment of speciWc grounds of
review; and no such purported interference could be taken literally, in the
sense of brooking no qualiWcations or exceptions, without abandoning the rule
of law. What is sometimes presented as a form of judicial resistance to legislative
impropriety—a resistance that lacks a secure constitutional basis—is better
understood as a mode of interpretation respectful of competing, but quite
legitimate, demands.
The reasons for limiting the scope of review must be weighed against the
importance of protecting citizens against abuses of power; and the proper outcome
44
Craig, ‘Competing Models’, above n 8 at 383.
See R. v Secretary of State for Home Department, ex p Brind [1987] AC 514 at 531.
See R. v Ministry of Defence, ex p Smith [1996] 1 All ER 257 at 263.
47
Craig, ‘Ultra vires and the Foundations of Judicial Review’, above n 6 at 61.
48
See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
45
46
WINTER 2003
JustiWcation of Judicial Review
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will depend on all the circumstances.49 An irreconcilable opposition between
legislative will and common law reason—parliamentary sovereignty and the rule
of law—can be conjured only by Wnding an intention to confer on the public
agency unqualiWed power to determine the limits of its own jurisdiction, however extravagant its conclusions. Since no sane public lawyer would ever
attribute such unreasonable intentions to the legislature, no such lawyer should
proclaim Parliament’s right to abrogate or undermine the rule of law. He should
acknowledge that, in respect of particular cases, it is always the court rather than
Parliament that has the ‘last word’.
The ouster clause confronts the ‘common law model’ with a dilemma that
exempliWes its present formalism. A lawyer who insists on the primacy of
common law doctrine, marginalizing legislative intent, must apply a principle
that requires such a clause to be overridden in a case of ‘jurisdictional’ error; the
clause is stripped of any power to curtail judicial review. Parliament retains its
sovereignty only in the notional sense that it might one day Wnd words capable of
displacing the common law principle. Either the rule of law surrenders to parliamentary sovereignty, when the magic formula is found, or else—for all practical
purposes—Parliament’s intent is subjugated willy-nilly to the common law.50 An
approach more truly respectful of legislative intent, by contrast, would recognize
the clause as pertinent to the division of powers between court and agency, even if
not conclusive. The gulf between common law doctrine and legislative intent
would then disappear: the result of an ouster clause would vary with the context,
according to the true construction of the statute in the circumstances arising.51
An answer to the charge of judicial supremacism must, then, be sought below
the level of abstraction at which the common lawyers Wx their gaze. The answer
must emphasize the central role of the statutory purpose or intent in the application of the various grounds of review. The common lawyers’ formalism naturally
invites the objection that their all-purpose principles of review are inadequately
attuned to the speciWc context: Parliament may have wanted a specialist administrative regime, distinctively diVerent from that of the ‘ordinary’ courts.52 When
common law doctrine is placed at centre stage, and the legislative intent that
informs its application relegated to the wings, the rejection of ultra vires inevitably suggests that patience for specialist regimes is limited. Yet the charge of
judicial supremacism is unnecessarily courted. For it is only if we think of the
grounds of review as having a determinate content, detached from the highly
varied administrative contexts in which they apply, that we could sustain the
49
See further Constitutional Justice at 210–13.
The common law model is therefore vulnerable to precisely the same charge of formalism as the ultra vires doctrine: the sovereignty of Parliament is aYrmed in theory while its instructions are disregarded in practice. Cf. David
Dyzenhaus ‘Formalism’s Hollow Victory’ [2002] NZLR 525 at 534–40.
51
The Canadian jurisprudence is instructive: see, e.g. Pushpanathan v Canada (Minister of Citizenship and
Immigration) [1998] 1 SCR 982 at 1003–12.
52
See esp H.W. Arthurs ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17 Osgoode Hall LJ 1;
see further Allan, ‘The Constitutional Foundations of Judicial Review’, above, 109–116.
50
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Oxford Journal of Legal Studies
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clear-cut distinction between common law reason and legislative will that the
stance of the common lawyers assumes.
4. Constitutional Rights and Priority Rules
At a formal level, common law constitutional rights can be accommodated by
means of what has been called a ‘priority rule’.53 Legislation will not be construed to allow an interference with such a right, which takes automatic priority,
unless Parliament has expressly authorized it. In Simms, Lord HoVmann drew
an analogy with the species of constitutional review, adopted elsewhere, that
enables courts to determine the validity of primary legislation:
In the absence of express language or necessary implication to the contrary, the courts
. . . presume that even the most general words were intended to be subject to the basic
rights of the individual. In this way the courts of the United Kingdom, though
acknowledging the sovereignty of Parliament, apply principles of constitutionality little
diVerent from those which exist in countries where the power of the legislature is
expressly limited by a constitutional document.54
Now, if there is little diVerence from full-blooded constitutional review, it
should be plain that it is only a qualiWed parliamentary sovereignty that is being
acknowledged: the courts retain the power to balance the immediate administrative need against more enduring political values. This is clearly shared sovereignty in substance, if not in form. But this is not the only respect in which
convenient conceptual distinctions may obscure more complex political realities.
For the concession that a common law right may be overridden by ‘necessary
implication’ also reveals the formal nature of the supposed ‘priority rule’. It may
be that the best construction of the statute, all things considered, is one that
permits the right to be curtailed even though there are no explicit instructions to
that eVect; and what is ‘necessary’ is inevitably a matter of judgment, sensitive to
considerations of purpose and context.
Moreover, the nature and scope of the right will usually be open to argument:
a right cannot be curtailed by statute, even expressly, unless it is Wrst determined, on analysis, to apply in the circumstances under review. These questions
of nature and scope will usually leave wide discretion to the judges; and it should
be obvious that where the central core of a right is unaVected, or where its
weight in the circumstances is small, the courts will (and should) be readier to
accept restrictions even if the statutory words are capable, in principle, of a
diVerent construction. In the result, the legality of an administrative decision
will depend on judgments of weight and proportionality, and these will turn on
the facts of the case rather than the operation of any ‘priority rule’.
53
Craig ‘Constitutional and Non-Constitutional Review’ (2001) 54 CLP 147 at 166–67, and ‘Constitutional
Foundations’ at 108.
54
R. v Secretary of State for the Home Department, ex p Simms [1999] 3 All ER 400 at 412.
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The critical issue in Simms was whether or not the Home Secretary could
lawfully prohibit interviews of prisoners by journalists, even if the purpose of
such an interview was to harness the resources of the media in aid of an inquiry
into an alleged miscarriage of justice, so as to facilitate a reference to the Court
of Appeal. If the Minister’s policy constituted an improper interference with the
prisoner’s freedom of speech, a prison rule that on its true construction embodied
that policy would exceed the rule-making power conferred in general terms
by the Prison Act 1952. Since the right of free speech was to some extent
curtailed by the sentence of imprisonment, the real question was whether the
demands of prison discipline precluded the right’s survival for the limited purpose
of challenging the safety of the prisoner’s conviction. The court’s decision that
the ban on interviews was unlawful reXected its view of the balance of competing
considerations of policy and principle: the ban was, in eVect, a disproportionate
response to the requirements of order and discipline.
The parallel reasoning of the Court of Appeal in Leech was more clearly articulated.55 The interception of a prisoner’s correspondence with his legal adviser,
in breach of the ordinary rule of legal professional privilege, violated his constitutional right of unimpeded access to the court. Although, in principle, a statute
might authorize the curtailment of the right by subordinate legislation, where
such rule-making powers were alleged to arise by necessary implication the executive incurred a heavy burden of justiWcation: ‘the more fundamental the right
interfered with, and the more drastic the interference, the more diYcult becomes
the implication’.56 The content of the common law right is in practice a question
of judgment and degree to which the statutory context is critical.57 The application of a proportionality test was made explicit: the question was ‘whether there
is a self-evident and pressing need for an unrestricted power to read letters between
a prisoner and a solicitor and a power to stop such letters’.58 Since no ‘objective
need’ had been established, the relevant power did not exist.59
It is true that a disproportionate curtailment of rights might be authorized by
explicit legislation, or so it is generally assumed, and in that sense the principle
of freedom of speech (or access to the court) prevails in the absence of express
abrogation; but we should not allow that formal explanation to obscure the
signiWcant judgments of context and degree. The substance of the matter can be
easily tested. How explicit would legislative authorization of such a disproportionate curtailment of rights have to be? Would it be necessary for the statute to
provide for the imposition of whatever restrictions on interviews (or interviews
with journalists?) the Secretary of State thought Wt? And if so, would not further
questions remain, as a matter of context and degree, about what restrictions he
55
R. v Secretary of State for the Home Department, ex p Leech (No. 2) [1993] 3 WLR 1125.
Ibid at 1134.
A more limited power to inspect correspondence would fall by implication within the statutory authorization:
ibid at 1138–39, 1141–42.
58
Ibid at 1137 (italics supplied).
59
Compare the reasoning of the House of Lords in R. (Daly) v Secretary of State for the Home Department [2001] 2
WLR 1622 at 1630–33.
56
57
580
Oxford Journal of Legal Studies
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could reasonably regard as Wtting? Attempts to systematize questions of interpretation by the construction of formal categories of judicial review are foredoomed
to failure: statutory meaning is too much a function of context and circumstance
to permit such distinctions to be drawn convincingly.60
According to Lord HoVmann, ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human
rights’.61 The constraints on Parliament’s power, he insists, are ‘ultimately political,
not legal’. Nonetheless, the ‘principle of legality’ means that ‘Parliament must
squarely confront what it is doing and accept the political cost’. Fundamental
rights cannot be overridden by ‘general or ambiguous words’ because there is
‘too great a risk that the full implications of their unqualiWed meaning may have
passed unnoticed in the democratic process’.62 It is, however, always true that
the full implications of a provision will not be foreseen because we cannot anticipate future events with any great conWdence or accuracy. No ‘unqualiWed
meaning’ can therefore claim any special authority, with or without a priority
rule. Moreover, the ‘political cost’ of interference with the constitutional rights
of an unpopular group, such as prisoners, may be very small: such legislative
action, steered by the government in oYce, may even pay substantial political
dividends.
If, then, the courts are justiWed in adopting an interpretation consistent with
constitutional rights it is ultimately because such an approach is the most reasonable one available. It is justiWed by the entirely legitimate presumption that
members of Parliament are as committed to the preservation of fundamental
rights as are the judges, a presumption bolstered by the further understanding
that the concrete content of those rights in particular cases must be determined
in good faith, adapting constitutional values to the demands of the immediate
context. It is not primarily a matter of inXicting political embarrassment on legislators, who may show scant regard for constitutional rights, but rather engaging
them in an evolving public debate about the content and limits of such rights. It
is not so much a question of curbing the legislative will, by the imposition of
countervailing common law constraints, as seeking a solution in the particular
case that would command the assent of any conscientious citizen or oYcial, as
amounting to a reasonable construction in all the circumstances.
If clear and unambiguous words strengthen our conviction that the curtailment of rights was truly ‘intended’, that can only be so in the sense that there is
explicit provision for the sort of case before the court. The greater the generality
of the statutory words, however clear their general tenor, the weaker the guidance
they aVord in a case where important constitutional values are placed at risk.
60
Insofar as Craig’s ‘techniques’ of interpretation are meant to embody diVering degrees of judicial subservience
to Parliament, they exhibit the formalism that he denies is characteristic of analysis in public law: see Craig,
‘Constitutional Foundations’ at 107–111. The propriety of any particular reading of a statutory provision is a
matter of substantive judgment, not assignment to appropriate category.
61
Ex p Simms, above at 412.
62
Ibid.
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There is no abstract ‘intention’ that attaches to the statute in isolation from the
concrete situations that it must address; and there is no ‘intention’ in respect of
particular cases that can be discerned without recourse to constitutional judgement, sensitive to nuances of context and consequence. The judicial demand for
legislative clarity should not, then, be read as a futile plea for unambiguous
instructions that can shift responsibility from judge to legislator. Responsibility is
necessarily shared by an arrangement of divided sovereignty in accordance with
the principle of separation of powers. Demands for precision and clarity should
be interpreted as an invitation to join the debate about governmental purposes
and constitutional rights, a deliberative process that embodies the conception of
distributed sovereignty that the common law, properly understood, aYrms.
Paul Craig considers Lord HoVmann’s reasoning to be ‘a perfect illustration
of the common law method in operation’, conWrming the irrelevance of any
speciWc or general legislative intent.63 His reliance on such formal reasoning
conWrms the artiWciality of the division of opinion over ultra vires. The intelligibility of the dispute between the common law camp and the defenders of ultra
vires depends on a common adherence to a rigid opposition between legislative
will and common law reason, which I have condemned as specious. The protagonists overlook the constructive nature of statutory intent, itself a product of
judicial reasoning faithful to settled constitutional values. Since the legislative
intent in respect of particular cases cannot, without great artiWciality, be
divorced from ordinary considerations of fairness and reasonableness, there is
nothing for the common law to qualify or confront. Common law principles are
inherent constraints on legislative power that reXect our shared commitment to
the rule of law.
The principal judgments in Simms (as opposed to HoVmann’s summary generalizations) provide a good illustration of the common law method, in the sense
that common law judges decide cases in accordance with the weight of reasons.
When the reasons for an interpretation of the statute respectful of constitutional
rights outweigh any countervailing reasons against it, based on the court’s
understanding of the legislative purpose and the public policy it reXects or
embodies, those rights are duly aYrmed. It is not a question (as the common
lawyers seem to suggest) of whether the statute happens, on close inspection, to
oVer speciWc guidance on the application of common law grounds of judicial
review, which are otherwise free-Xoating and independent of any legislative
intent.
Statutory interpretation, faithful to the legislative purpose, is an integral part
of the process of review, providing the immediate context in which constitutional rights and values must be ascertained and elaborated. There is, indeed, a
genuine sense in which such rights and values acquire a concrete content, like
the common law grounds of review, only in the face of legislative or administrative action that threatens the interests they are thought to serve. Common law
63
Craig, ‘Constitutional and Non-Constitutional Review’, above n 53 at 176 (see also 167).
582
Oxford Journal of Legal Studies
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reasoning, severed from the legislative context in which it must often be applied,
is as nebulous or as formal, for that context, as a philosophy of rights abstracted
from any particular background of economic or political theory.
5. Conclusion
The opponents of the ultra vires doctrine have given inadequate attention to the
nature of the ‘legislative intent’ in issue, failing to notice its intimate relationship
with the legislative supremacy that they supposedly endorse. The rejection of
ultra vires makes most sense as a denial of ‘absolute’ parliamentary sovereignty; a
rival conception of balanced, or interdependent, ‘sovereignties’ has a better
claim to our allegiance. Treated as a purely conceptual rationalization, ultra vires
allows us to account for judicial resistance to ouster clauses and to preserve
collateral challenge to unlawful administrative action, deemed to be ‘void ab
initio’, even where the relevant powers are conferred by statute in unqualiWed
terms. It is, ultimately, a necessary device to square our common law doctrines
with (unqualiWed) legislative supremacy.64 Its rejection is either an empty gesture
or a challenge to the constitutional scheme from which that necessity derives.
If the notion of ‘shared power’ that underpins the common law doctrine truly
amounts to ‘shared sovereignty’,65 divided between Parliament and courts,
unqualiWed parliamentary sovereignty has been repudiated. If it does not, parliamentary sovereignty survives unscathed and so must ultra vires. The series of
tenuous distinctions on which Paul Craig’s position appears to depend—between
legislative intent, narrowly conceived, and common law values, between ‘clear
and unequivocal’ words and more ambiguous provisions that leave room for
interpretation, between common law doctrine, on the one hand, and its application in
particular cases, on the other, or between the heads of review and their practical
consequences for administrative legality, between modiWed Wednesbury and ‘priority
rules’66—weaves an elaborate formalism that obscures at least as much it reveals.
It is a formalism in which the ultra vires doctrine would be comfortably at home.67
It is also a thesis belied by Craig’s own admission that even ‘if the courts do
not exercise the power to invalidate primary legislation they will nonetheless
often develop juridical doctrines to constrain legislative as well as executive
power which come close to constitutional review itself’.68 The legal form, then,
conceals the political and constitutional substance. The distinction between
constitutional and ‘non-constitutional’ review becomes ever harder to discern.
The priority rule that ensures the eVective supremacy of European Community
law, for example, preserves only ‘the formal veneer of legal sovereignty’.69 When
64
The conceptual logic is elegantly displayed by Mark Elliott in the works cited above.
See Craig, ‘Constitutional Foundations’, above n 2 at 93.
See esp Craig, ‘Constitutional and Non-Constitutional Review’ at 165–67.
67
Cf. David Dyzenhaus, ‘Formalism’s Hollow Victory’, above.
68
Craig, ‘Constitutional and Non-Constitutional Review’ at 175.
69
Ibid at 163, and ‘Constitutional Foundations’ at 108.
65
66
WINTER 2003
JustiWcation of Judicial Review
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theories embody only formal veneers they should be ditched in favour of alternatives that better reXect the realities of the legal and constitutional landscape.
That was, presumably, the point of rejecting ultra vires in the Wrst place.70 The
opposition between legislative will and common law reason is less radical, and
far more subtle, than the common lawyers’ indiscriminate assault on ultra vires
suggests.
Larry Alexander has complained that too many theorists overlook the distinction between interpretation, in the sense of ascertaining what legislators meant,
and the application of norms that limit their authority.71 Substantive limits may
be either overriding constitutional norms or ‘artiWcial evidentiary presumptions’
governing the resolution of doubtful cases.72 In either case, however, such norms
constrain legislative power rather than assisting an inquiry into what the legislators did in fact determine. So the opponents of ultra vires may want to say that
the common law presumptions protecting rights do not depend on legislative
intent, properly understood. These presumptions qualify such intent, and they
are consistent with parliamentary sovereignty only because they may be expressly
overridden.
My contention has been, however, that the application of common law principles (and hence the scope of rights) depends on the context, so that judicial
review must be as fully concerned with legislative intent as with common law
principle. For that reason, the common law basis of the principles of judicial
review is at least consistent with a qualiWed doctrine of ultra vires. I have also
maintained, against both ultra vires defenders and opponents, that we can imagine
cases where no words would be suYciently clear or unambiguous to authorize
executive action contrary to the rule of law. Some common law presumptions,
expressed at an abstract level, embody dimensions of the constitutional framework within which Parliament enjoys its ‘sovereign’ power. The institution of
judicial review, and the separation of judicial power on which its eYcacy
depends, would lose their point if the rule of law itself could be radically undermined; and the subjection of any person to what is truly arbitrary treatment, in
breach of the basic precepts of equality and due process, amounts to a radical
violation of the rule of law.73
A constitutional ‘sovereignty’ is shared, not merely in the sense that the judges
Wll the gaps where the legislative will is either silent or obscure, but in the more
fundamental sense that authority is divided between the courts and Parliament
70
See, e.g. Craig, ‘Ultra vires and the Foundations of Judicial Review’, above n 6 at 50, where it is objected that
the Xexibility that enables the ultra vires doctrine to ‘preserve the veneer that the courts are simply obeying the legislative mandate’ renders it empty.
71
Larry Alexander, ‘All or Nothing at All? The Intentions of Authorities and the Authority of Intentions’ in
Andrei Marmor, Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995).
72
Ibid at 383–84.
73
If it were true, as Craig contends, that acceptance of (even modest) rights-based limits on government provides
in itself insuYcient justiWcation for judicial invalidation of oVending measures (see Craig, ‘Constitutional Foundations’ at 110) it is not clear how such acceptance could justify an interpretative stance, based on common law
principles, that owes nothing to legislative sanction. A genuine ‘common law model’ of review must seek a deeper
level of theoretical consistency.
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according to context and circumstance. Nor is it a matter of the purity of common law doctrine yielding to legislative interference when the statutory language
proves intractable. Doctrine and text are interdependent; each colours the other
by reWning its meaning and scope. There must be a balance of power between
law-giver and interpreter, maintained by judgments of political morality rather
than formal accounts of the separation of powers. Constitutional theory must
retain a foothold in the practical judgments of justice or fairness that underpin
legal judgment in particular cases.
Alexander warns that an interpreter who can disregard speciWc legislative
intentions, in favour of more general or abstract ones, makes his own judgments
authoritative because he can correct what he regards as ‘mistakes’ in the detail of
the legislative scheme. There is usually a fact of the matter about the level of
generality intended, which the interpreter ought to respect: ‘This facticity about
what the authorities determined ought to be done in the face of the various levels
of generality at which their purposes could be described is what makes formal
legal rules . . . possible’.74 The distinction between fact and value is, however,
precarious here: our interpretative convictions will always rely, to some extent,
on normative judgements that we believe our elected representatives would share.
Alexander’s point, so far as it goes, aYrms the centrality of legislative intent in
cases concerned with statutory powers; but we should not exaggerate the facticity of intentions to authorize executive action that, in all the circumstances, seriously threatens constitutional norms.
We should be sceptical about such intentions when they supposedly belong to
legislators who, in other contexts, aYrm (or would aYrm) their unqualiWed allegiance to the rule of law. We may, indeed, be so sceptical in some cases that
nothing short of bloody revolution could convince us that unconstitutional
action is intended or envisaged. We keep the dialogue between law-giver and
interpreter alive by ruling out preposterous inferences. The distinction, then,
between ‘interpretation’ and ‘reconstruction’ is not clear-cut. There is always a
grey area in which constitutional judgment eludes merely formal or conceptual
analysis, whether marshalled in the service of common law principle, on the one
hand, or legislative intent, on the other—an area where legal sovereignties combine
and interact.
74
Above n 71 at 391.