Conclusion
I have offered a defence of judicial review of administrative action based on the principle of legality, which is closely linked to the fundamental political values of freedom and justice.
The common law constitution provides the foundations of judicial review by giving expression to the idea of legality within British legal practice and tradition; it requires executive power to be employed in a manner that conforms to the requirements of the rule of law, whereby citizens' equal independence is effectively secured. Since such independence is the very foundation of republican liberty, legality and democracy are closely connected values. In curbing arbitrary power, exercised beyond the limits of statutory authority, judicial review of governmental action simultaneously affirms both the supremacy of Parliament as law-maker and the rule of law. Properly conducted, judicial review maintains the separation of powers critical to both representative government and the rule of law.A lengthy debate over the true foundations of judicial review has been somewhat disfigured by the failure of the common lawyers, rejecting ultra vires, clearly to repudiate the legal positivism that underlies their opponents' stance.[362] When the principles of legality and rationality are understood as rule-of-law constraints on power, akin to the precepts of formal legality applicable to statutes, we can appreciate their place as intrinsic components of our concept of law. Legislative intention or instruction cannot be the basis of judicial review because legislative action takes the idea of law for granted; in conferring powers for the attainment of public ends, Parliament invokes the concept of law, which judges must interpret as part of their function in enforcing the jurisdictional limits that bind executive agencies. If law is the foundation of our liberty, we must acknowledge the moral dimension of the principles of legality.
Their instrumental utility is subservient to the overriding demands of liberty and justice; and our concept of law or legality is ultimately intelligible only by reference to an ideal of the rule of law that serves those fundamental values.A political constitutionalism of the sort that diminishes judicial review, rejecting the implications of a moral understanding of law and legality, undermines democracy rather than promoting it. Ignoring the consequences for the exercise of discretionary power, and rooted in a misguided philosophy of legal positivism, political constitutionalism betrays the republican values it claims to defend. In a true republic the citizen is protected from domination, whether by powerful fellow citizens, government officials or political majorities. The alternative danger of domination by courts cannot be ignored; but judicial power is tamed by adherence to legality, whose integrity depends on closely reasoned, public argument, probing the justifiability of governmental coercion in particular instances. Accountability to law means more than compliance with positive law, whether statute or precedent; it is an ideal that informs and guides the interpretation of positive law. It is ultimately respect for law and legal process, conceived as moral constraints on the nature and mode of British governance—constraints we explore and refine in making sense of our own constitutional tradition. Legality is not identical with either liberty or justice; but respect for that complex moral ideal is a prerequisite for the success of our efforts to further the other basic political values.[363]
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