Legitimacy

The literature contesting the legitimacy of constitutional review could fill an office block or mansion, whichever architectural metaphor you prefer.^[605] The legitimacy of non-constitutional review has not been as contentious as its more famous sibling.

It is common for criticism to be voiced against the legitimacy of legal constitution­alism and judicial review in the UK on the ground that the doctrine is not justified, except through recourse to abstract concepts such as natural law, fundamental values or the rule of law. This critique is predicated on mistaken assumptions about the development of any body of legal doctrine, whether in public or private law. The common law develops at three interconnected levels.

There will, firstly, be some imperative for judicial involvement in the area, such as the need for legal rules to deal with delictual harm, the regulation of consensual relations and the like. The objectives served by these rules may be eclectic, and may alter over time. These will be reflected in principles, which shape the applicable legal doctrine.

The second level is the fashioning of particular categories of legal doctrine applicable within the salient area, such as mistake, misrepresentation and illegality in contract, or negligence, nuisance and defamation in tort.

The third level concerns the more detailed meaning of the doctrinal areas estab­lished. Thus, there will be further questions as to the nature of liability for nuisance, the type of defences that should be available, and the like. Resolution of these issues will necessarily involve an admixture of normative and practical considerations, with assumptions being made concerning the type of conduct that should give rise to legal responsibility, and the moral considerations that provide the foundation for an excuse or defence.

Consiuuuon away from the Courts (Princeton: Princeton University Press, 1999); L Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford:Oxford University Press,2004).

¹⁰ See, eg. A Tomkins, Our Republican Constitution (Oxford: Hart, 2005); T Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism' OJLS (2003) 23: 453; T Poole, ‘Questioning Common Law Constitutionalism' LS (2005) 25 142;T Hickman, ‘In Defence of the Legal Constitution' UTLJ(2005) 55: 98; P Craig, ‘Political Constitutionalism andJudicial Review', in C Forsyth, M Elliott, SJhaveri,AScully-Hill, M Ramsden (eds), Effective Judicial Review: A Cornersione of Good Governance (Oxford: Oxford University Press, 2010); ATomkins, ‘The Role of the Courts in the Political Constitution' UTLJ (2010) 60: 1; P Craig, ‘Political Constitutionalism and the Judicial Role:AResponse' I-CON (2011) 9: 112; T R S Allan in this volume ch 4.

There are certain noteworthy features of this pattern of development. Thus it is incremental and analogical. This is true not only for case law, but also for the concepts that inform the levels adumbrated above. These concepts do not emerge ‘perfect’ and ‘fully-formed’. They are fashioned, re-fashioned, developed, altered, and changed over time. The courts may well proceed relatively cautiously in this respect.^[606]

The relationship between the three levels is symbiotic, with developments at one level impacting on the others. Thus, articulation of categories of legal doctrine at the second level may well prompt reconsideration of the overarching values to be served by that body of law as a whole. Or more detailed consideration of particular legal doctrine at the third level may be the catalyst for rethinking the very division between the categories that comprise the subject.

The content of the three levels will, moreover, evolve over time; it is not static. The very values that underpin a body of the law change over time. So too will the categories of legal doctrine that comprise the second level, or their more detailed meaning, the third level. The changes may come from within the common law itself, or they may result from legislative intervention.

The preceding framework facilitates understanding of the legitimacy of judicial review. When viewed from an historical perspective, the most basic rationale for judi­cial review was the need to render public power accountable, which connoted the twin ideas that an institution complied with conditions laid down in the enabling grant of power, and with certain precepts of good governance, thereby enhancing legitimacy.^[607] This was the imperative for judicial involvement. It constituted the background objective and value at the first level identified above. Subsequent development of judicial review refined this basic precept.

It might be argued by those opposed to judicial review that the preceding ration­ale for judicial intervention is unconvincing.

It is common, as we have seen, for criticism to be voiced against legal constitution­alism and judicial review on the ground that the doctrine is only justified through recourse to abstract concepts such as natural law, public reason or fundamental values. The historical development of doctrine rests, however, on more secure, specific and discrete foundations. This does not mean that the doctrinal categories

186 Accountability and Judicial Review in the UK and EU: Central Precepts are value-free, nor does it mean that they are premised on some universal theory of value. What it does mean is that the existence of these categories, and their more specific meaning, levels two and three, are the result of reasoned analysis that draws on, and gives more concrete expression to, the foundational ideas that underlie judicial review explicated above. Such doctrinal development is incremental and symbiotic in the manner described above and thus may well lead to refinement or modification of the foundational precepts that underlie this body of law. The nature of the connection between the three levels can be briefly exemplified.

Consider in this respect certain core doctrines of judicial review that constitute what was termed the second level. It is axiomatic that if the courts are to render public power accountable, then there must be legal doctrine that serves to keep the relevant body within its assigned sphere of power. It is equally axiomatic that there must be controls to determine whether the power has been used for an improper purpose.

Consider also in this respect the fact that the courts developed from the outset principles of legality that took account of moral precepts and were designed to enhance good governance. A prime instance is natural justice. It was central to the objective of rendering public power accountable: in instrumental terms, decisions were more likely to be correct if people were heard before the decision was taken; in non-instrumental terms, it was part of what it means to be a person to be heard before the state took action against the individual.^[608] Natural justice was there­fore reflective of the twin precepts underlying judicial review identified above. It helped to ensure that public bodies remained within their assigned area, since a correct decision was more likely if a person was heard before it was taken, and it also functioned as a principle of legitimate good governance, as reflected in the non-instrumental rationale for natural justice.

no more than a reasonable price.^[609] The principled reasoning in the seminal cases was posited on grounds that were part economic, and part concerned with precepts of good governance that should be demanded from bodies ‘imbued with a public interest', given their de facto or de jure monopoly power. The fact that such doctrinal categories were shaped by normative and moral considerations is neither surprising nor illegitimate, and the same occurs when categories are forged in private law. It does not mean that we should simply accept any such judicial evaluation. The justification for the relevant category must rest on the strength of the normative argument, viewed against the objectives and values of the overall area.

Consider in this respect a third example concerning discretionary power. The courts recognized that the primary decision-maker had been given discretionary power by Parliament and therefore that they should not substitute judgment on the merits. They recognized also that certain public authorities, such as ministers and local authorities, had some democratic mandate. Legal intervention was nonethe­less deemed warranted because of the twin precepts that underpin judicial review identified above: the imperative of checking that discretionary power was exercised in accordance with the enabling legislation, plus the belief that good governance demanded judicial oversight over choices made by the administration. The result was limited rationality review. There is no doubt that rationality review accords the judiciary a measure of interpretive choice, that the meaning ascribed to rationality has altered over time, and that there is debate as to the meaning that the term ought to bear.^[610] These debates, which include the choice between rationality and proportionality, exemplify the discourse that commonly occurs about any body of law at the third level, viz, the more particular meaning to be accorded to a doc­trinal category. The reality is nonetheless that if some control over discretionary power is warranted for the preceding reasons, then it will perforce be undertaken through criteria such as rationality or proportionality, which allow for differences of interpretation.

It is interesting and instructive to reflect on the legitimacy of EU administrative law in the light of the preceding analysis. This is more especially so, given that the EU courts did not have the luxury of having three centuries in which to fashion the tools of judicial review. The judicial creativity evident in the crafting of general principles of law was noted in the previous section. The EU courts were helped in this respect because this creative enterprise, the central pillars of which were fashioned in the 1970s and 1980s, was held to be legitimate for reasons analogous to those embraced three hundred years earlier in the UK.

Thus, judicial review was felt to be warranted at what was termed the first level, because of the twin imperatives of the need to ensure that EU institutions remained within the remit of their allotted power, and that their decision-making complied with certain precepts of good governance. It was readily apparent by the 1970s and 1980s that the EEC had considerable power and that a schema of judicial review was required in order to ensure that norms of Community law were subject to proper oversight. The ECJ's jurisprudence could therefore be depicted as legitimate in enhancing the rule of law by ensuring that Community decision-making was subject to controls by way of judicial review that were analogous to those in the Member States. The imperfections in the Community legislative process enhanced the legitimacy of judicial review in furtherance of the rule of law. The period from the inception of the Community until the Single European Act 1986 was marked by the dominance of the Commission and Council in the decision-making pro­cess. This was aptly captured in the aphorism that ‘the Commission proposes, the Council disposes'. The Assembly, rechristened the European Parliament, had little formal input into Community decision-making, being largely limited to consul­tation rights, and then only where a particular Treaty article so provided. This was reflected in its substantive exclusion from most Community decision-making. Change came slowly, but can be dated from the creation of the cooperation pro­cedure in the Single European Act 1986 and its application to important areas such as art 95 EC, which was the legal foundation for measures to complete the single market. The cooperation procedure modified the dynamics of Community decision-making and laid the foundations for the more powerful co-decision procedure introduced in the Maastricht Treaty, renamed the ordinary legislative procedure by the Lisbon Treaty. It is therefore unsurprising in the light of the decision-making process that the ECJ should feel the need to put flesh on the bare bones of art 263 through the development of general principles, and it is equally unsurprising that its jurisprudence was seen as pushing at an open door, being welcomed as a method of rendering technocratic Community decision-making more accountable.

The doctrinal categories in EU law, and their more specific meaning—levels two and three as explicated earlier—are the result of reasoned analysis that draws on, and gives more concrete expression to, the foundational ideas that underlie EU judicial review, just as they do in the UK. There are doctrinal similarities and dif­ferences between the two systems. The latter are reflective of different conclusions concerning the specific implications that should be drawn from the background values that underpin EU judicial review. The relationship between levels one to three, and the similarities and differences between UK and EU law, can be revealed through examples that mirror those discussed in relation to UK law.

Consider in this respect the way in which the ECJ rapidly developed doctrinal controls dealing with error of law, error of fact, use of power for improper pur­poses, and invalidity. Legal doctrine of this kind is necessary in order to fulfil the background purpose of EU administrative law, which is in part to ensure that decision-makers remain within the remit of the powers assigned to them. Given this background objective, controls of the kind elaborated here are a necessary part of the doctrinal architecture at level two. They receive less attention than some of the better known precepts of EU administrative law, such as proportionality or legitimate expectations, but they have nonetheless formed an integral part of the doctrinal terrain since its inception. Many cases continue to be decided on grounds of error of law, error of fact and misuse of power.^[611] The more particular meaning accorded to these concepts differs in some respects from analogous doc­trine in UK law, thereby reflecting different value assumptions that play out at what was termed level three. Thus, to take but one example, the EU courts have from the outset undertaken judicial review of all questions of fact, with interven­tion grounded on the applicant being able to show a manifest error.^[612] This stands in contrast to the difficulties that have plagued UK law in this area. Although the UK courts have clarified the scope of intervention for mistake of fact, uncertain­ties still remain.^[613] The particular differences in legal doctrine can also result from legislation, or in the case of the EU, from Treaty provisions. Thus, UK law on inva­lidity struggled to balance the principled imperative that an ultra vires act should be retrospectively void, with the factual difficulties that unmitigated application of this precept can generate, the result being for many years covert manipulation of the terms void and voidable rather than open discussion of the circumstances in which the invalidity should be prospective rather than retrospective. EU law, by way of contrast, benefited from the fact that the Treaty at its outset stipulated in art 174 EEC^[614] that, while the prima facie consequence of invalidity was that the act was void, it was nonetheless open to the ECJ to consider which effects of the challenged norm should be held to be definitive. The ECJ used this power to deal with cases where retrospective nullity would lead to very real difficulties for institu­tions and/or individuals.^[615]

Consider as a second example the way in which EU courts rapidly developed within the doctrinal armoury, at what was termed level two, general principles of law that embodied moral precepts designed to enhance good governance. This is most readily apparent in the recognition of fundamental rights within general principles of law. It is true that the ECJ was pressed to take this step by the German and Italian courts, which threatened to test EU Regulations for compliance with national constitutional rights in the absence of EU fundamental rights' protec­tion.^[616] It is nonetheless very likely that the ECJ would have taken this step, even if it had not been pushed to do so by national courts. It was creating general principles of law at this time, and inclusion of fundamental rights was a natural step. The ECJ was fully aware of the increasing power wielded by the EEC even in the 1970s, and the fact that the power transcended the purely economic sphere. It was cognizant of the fact that the quid pro quo for increased governmental

190 Accountability and Judicial Review in the UK and EU: Central Precepts power within liberal polities was recognition of some form of rights-based limit on its exercise, in order thereby to enhance the legitimacy of the political order.²² The judicial development of fundamental rights within EU law bore many of the hallmarks of ‘common law' reasoning, being incremental and analogical. Indeed the ECJ's very recognition of fundamental rights as an integral part of Community law prior to the EU Charter of Rights bears analogy with the process whereby the UK courts ‘discovered', prior to the Human Rights Act 1998 (HRA 1998), that such rights were embedded in the common law. The principal difference was that the ECJ, unencumbered by Diceyan impediments to the recognition of rights, reached this solution a whole lot quicker than its UK counterparts. Due process is integral to any administrative law regime, and it was conceptualized as part of fundamental rights by the ECJ.²³ The principle had to be respected both where there was no specific legislation and where legislation existed, but did not give suf­ficient protection to the principle.²⁴ While the catalyst for the ECJ's recognition of process rights was in part the common law precepts of natural justice, it was also shaped by civilian conceptions of the rights of the defence. The moral precept of equality of arms that is integrally related to civilian conceptions of rights of the defence helps to explain some of the significant differences of detail between EU and UK law at what was termed level three, which is concerned with the detailed working out of legal doctrine. This is exemplified by recognition of access to the file as an important aspect of EU process rights,²⁵ and its absence from common law concepts of natural justice.

Consider finally a third example concerning discretionary power. The EU courts recognized, analogously to their UK counterparts, that the primary decision-maker had been given discretionary power pursuant to EU legislation and therefore that they should not substitute judgment on the merits. The ECJ also concluded, in common with courts in the UK, that there should be constraints on the exercise of discretionary power over and beyond those already considered. It considered that

(Berlin: Nomos, 1991); A Clapham, ‘A Human Rights Policy for the European Community’ YEL (1990) 10: 309; K Lenaerts, ‘Fundamental Rights to be Included in a Community Catalogue’ ELRev (1991) 16: 367.

²² The relationship between review for fundamental rights and the EU legislative process will be explicated more fully below. Suffice it to say at this stage that the initial recognition of fundamental rights’ review was less controversial than in common law jurisdictions for two related reasons. Firstly, civilian legal systems which predominate in the EU legal order are less troubled by constitutional review than their common law counterparts. Secondly, when such review was developed by the ECJ the EEC legislative process was imperfect, with scant involvement of the Assembly.

²³ Case C-49/88 Al-JubailFertilizer v Council [1991] ECR I-3187, [15]; Cases T-33-34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des Poudres Spheriques v Council and Commission [2000] ECR I-8147, [99]; Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147, [83].

²⁴ CaseT-260/94 Air Inter SA v Commission [1997] ECR II-997, [60].

²⁵ Case T—7/89 SA Hercules Chemicals NV v Commission [1991] ECR II—1711, [53]-[54]; Cases T-30-32/91 Solvay SA v Commission [1995] ECR II-1775; Cases C-204-205, 211, 213, 217, 219/00 P Aalborg Portland v Commission [2004] ECR I-123; M Levitt, ‘Access to the File: the Commission’s Administrative Procedures in Cases under Articles 85 and 86’ CMLRev (1997) 34: 1413; C D Ehlermann and B Drijber, ‘Legal Protection of Enterprises: Administrative Procedure, in particular

even if the primary decision-maker, normally but not always the Commission, acted for a proper purpose there should still be some constraint on the way in which the discretionary power was exercised. The particular EU legal solution dif­fered from that chosen by UK courts, thereby reflecting a difference in doctrinal choice at levels two and three. Whereas the UK courts opted for limited rationality review, the EU courts chose to proceed via a general test of proportionality that was applied with varying degrees of intensity.²⁶ This is not the place to rehearse the arguments for and against proportionality being a general head of review in the UK.²⁷ Nor is that the purpose of this contribution, which is rather to stress the way in which legal doctrine develops through the instrumentality of the three levels adumbrated above. The doctrinal differences between the two systems are reflective of different conclusions concerning the specific implications that should be drawn from the background values that underpin EU judicial review. It should, moreo­ver, be noted that the existence of such doctrinal variations does not preclude the existence of similar values informing the application of the legal doctrine, and this is so irrespective of whether it is accorded the same linguistic tag or not. Thus, EU courts do not articulate the varying intensity of proportionality review through language cast in terms of deference or respect for the primary decision-maker. It is clear, nonetheless, that the predominant test for proportionality review of social, political or economic discretionary power, whereby it is for the claimant to show manifest disproportionality,²⁸ is informed by similar considerations. The very fact that the exercise of such discretionary power entails complex social, politi­cal or economic assessment, and that the primary decision-maker has been given this responsibility either by the Treaty or a norm made pursuant to the Treaty, is the reason why intervention is pitched in terms of manifest disproportional­ity. The very test for review therefore embodies respect accorded to the primary decision-maker in the making of such complex assessments.

The credentials underlying any particular accountability mechanism must necessarily include analysis of the legitimacy of the detailed precepts used when holding others to account. Opponents of judicial review have been critical in this respect, particularly in the UK, arguing that it is only ever legitimated by recourse

Access to Files and Confidentiality' ECLRev (1996)375; H Nehl, Principles of Administrative Procedure in EC Law (Oxford: Hart, 1999) ch 5.

²⁶ G de Burca, ‘The Principle of Proportionality and its Application in EC Law' YBEL (1993) 13: 105; N Emiliou, The Principle of Proportionality in European Law (London: Kluwer, 1996); G Gerapetritis, Proporiionality in Adm.inisiraiive Law (Athens: Sakkoulas, 1997); D U Galetta, Principio di Proportionality e Sindacato Giurisdizionale net Diritto Aninunisiradvo (Milan: Giuffre, 1998); Craig, EUAdministrative Law, ch 19.

²⁷ M Taggart, ‘Proportionality, Deference, Wednesbury' NZLR [2008] 423; M Hunt, ‘Against Bifurcation', in D Dyzenhaus, M Hunt and G Huscroft (eds), A Simple Common Lawyer——Essays in Honour of Michael Taggart (Oxford: Hart, 2009) ch 6;T Hickman Public Law after the Human Rights Act (Hart, Oxford, 2010) ch 9; P Craig, ‘Proportionality, Rationality and Review' NZLR [2010] 265; T Hickman, ‘Problems for Proportionality' NZLR (2010) 303; J King, ‘Proportionality: a Halfway House' NZLR [2010] 327; Craig, Administrative Law, ch 21.

²⁸ Case C-491/01 R v Secreiary of Sane for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453, [123]; Case C-210/03 The Queen, on the application of Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893, [48].

192 Accountability and Judicial Review in the UK and EU: Central Precepts to general precepts of the rule of law. This view is misconceived. It is predicated on mistaken views about the way in which any body of law develops, whether public or private. The principles of judicial review are not value-free, but nor are any of the foundational or doctrinal precepts in other parts of the law, public or private. The detailed rules of judicial review in the UK and the EU have developed in a manner analogous to other types of legal doctrine, and can be explicated in accord­ance with the tripartite analysis set out above.

D.