The constitutional foundations of judicial review

Recent debate over the constitutional foundations of judicial review has been marred by an excessive concentration on competing sources of administrative law: the creativity of common law judges is pitted against a legislative ‘intention’ derived from the grant of statutory power.^[318] Since the common law basis of the principal grounds of review is recognized by all, and since everyone endorses their application to any and every exercise of statutory power—in the absence, at least, of explicit provision to the contrary—it may be hard to see what really divides the different bodies of opinion.

The focus on sources of law reflects assumptions characteristic of legal posi­tivism, which treats the content of law as deriving entirely from empirical acts of law-creation. In H L A Hart’s version, the law consists of the rules made in the exercise of an authority conferred by the ‘rule of recognition’, which is itself constituted by the facts of established official practice.^[320] Such assumptions readily explain the emphasis placed by the ultra vires doctrine on legislative intention, signalling the ultimate foundations of judicial doctrine in continuing statutory authority; but they also preclude effective criticism.

An insistence on the common law basis of the grounds of review is best under­stood as the defence of an appropriate conception of the rule of law: the various categories of legal error are conceptual constraints, marking the boundary between legitimate and illegitimate state coercion. Law is not simply a matter of authorita­tive instructions, related to specific policy goals; nor is it a set of moral standards imposed by judges, unrelated to law's intrinsic form. Law is a means of attaining public ends that insulates the individual from arbitrary power, limiting coercion to what can be justified in all the circumstances. The common law grounds of review express the various dimensions of that conception of legality, subjecting coercive powers to limits whose status is wholly independent of anyone's prefer­ence or command. The corresponding duties on public authorities are no less part of the rule of law—no less implicit in the concept of law itself—than the require­ments of Fuller's inner morality of law (the precepts of formal legality applicable to legislation).^[323] But whereas such requirements as generality, clarity, prospective effect (and so forth) are relatively independent of a statute's substantive content, the conditions of legality applicable to administrative action necessarily concern both procedure and substance.

It is well understood that even the principles of natural justice or procedural fairness must be adapted to the specific context: no one thinks that every admin­istrative hearing should be conducted in the manner of a criminal trial for a serious offence. A balance must be struck between the reasonable demands of administrative cost and efficiency, on the one hand, and the legitimate interests of those affected by proposed state action, on the other: ‘what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates'.^[324] Although the requirements of fairness are sensitive to context in this way, however, it does not follow that they are arbi­trary. Consistency is maintained by recourse to well established rights and widely acknowledged human needs and interests: the greater the threat to fundamental interests in liberty or bodily security or property or reputation, the more elaborate must be the procedural constraints observed by a public authority in exercising its powers. And what is true of procedural fairness, narrowly understood, is equally the case as judicial review extends to the broader sphere of due process. Whether or not a power is abused for an extraneous purpose, or exercised in disregard of relevant considerations, is a judgement that depends on the context: the question of moral justification for coercive action in all the circumstances cannot be avoided.

Consistently with the focus on competing sources of administrative law, the opponents of ultra vires have tended to emphasize doctrinal structure, deriving from common law, at the expense of the variety and complexity of the different contexts to which common law doctrine applies.

There is, then, no challenge here to democratic governance: judicial review serves to bind executive agencies to their allotted tasks, making them subservient to the legislative will. At the same time the basic constraints of legality, attuned to the context in view, secure the conditions of respect for persons fundamental to a community of independent moral agents. But we cannot concede that if ‘the omnipotent Parliament' chooses to override the ordinary grounds of review, in terms that are ‘unequivocally clear', the courts must ‘then adhere to such dictates'.^[325] That would be to make legality itself vulnerable to legislative attack, echoing the claim of those defending the ultra vires doctrine that Parliament is ‘competent to grant or withhold the power to contravene the principles of good administration', authorizing the exercise of arbitrary power.^[326] Again the focus on a competition between rival sources of law—statute versus common law—provokes an unhelpful conflict between democracy and legality, suggesting an ultimate stand-off' between competing claims of parliamentary absolutism and judicial supremacism.

The various criticisms of ultra vires can be deflected by adopting a more subtle and nuanced understanding of the ‘legislative intention' it invokes. Sir John Laws is right to object to the notion that the courts' decisions, in ensuring the legality of admin­istrative action, are ‘only a function of Parliament's absolute power'; but whether or not it is objectionable that "ultra vires consigns everything to the intention of the legislature' depends on what we mean by the ‘intention of the legislature'.^[328] Since a legislative assembly composed of hundreds of members cannot literally share a con­scious intention, we must understand the expression in a mainly metaphorical sense. We mean essentially that our interpretation of any particular section or clause should be consistent with what appear to be the general statutory purposes, making sense of an overall legislative scheme designed to further the public interest. When Sir William Wade observed that the judges ‘have no constitutional right to interfere with action which is within the powers granted', he meant simply that the courts, being confined to matters of legality, must respect administrative decisions made within jurisdiction.^[329] The judge ‘must in every case be able to demonstrate that he is carrying out the will of Parliament as expressed in the statute conferring the power' in the sense that he must point to some abuse of power, inconsistent with the statutory grant.

The only question is whether the public body has exceeded a jurisdiction defined both by specific statutory purposes, inferred from the legislative scheme as a whole, and by fundamental (common law) precepts of legality. If, indeed, ‘the common law is logically prior to statute', so that the court's ‘obedience to Parliament's law is not an axiom on which its jurisdiction proceeds, nor a defining limitation of it', as Laws contends,^[331] there is no sovereign legislative will that may override the rule of law. Parliament's will is confined by the conditions of legality, whether these relate to the proper form of legislation or the manner of exercise of any discretionary powers it confers on executive agencies. The supposed opposition between parlia­mentary sovereignty and the rule of law is therefore false: the former is necessarily asserted in conformity to the latter; the courts' obedience is predicated on that understanding. If, as Laws maintains, ‘the developed doctrines of modern public law, including an increasing recognition of fundamental constitutional rights, are not in fact and logically cannot be a function of Parliament's law', they must instead be basic presuppositions or preconditions of that law. The common law rules of con­struction are themselves therefore fundamental, resistant to legislative abrogation that would violate legality. Their form as presumptions of ‘legislative intent' should not mislead us: the relevant ‘intent', properly understood, presupposes compliance with legality.

If there is no true opposition between legislative supremacy and legality, the sovereignty of Parliament reflects the sovereignty of law itself. Parliamentary sovereignty is not the narrow ‘political' sovereignty, which Sir John Laws else­where contrasts with ‘constitutional' sovereignty: it is an expression of the unity of law and democracy.^[332] As primary representative of the people, Parliament enjoys supremacy in the making of new law; but as a body itself constituted by law it is subject to the principles of legality in so doing. And such principles are not confined, as some have thought, to rules that prescribe the qualifications of members of the legislature and the procedures for enactment of legislation; they prescribe also the conditions that enacted rules must meet to qualify as law, capable of altering existing rights, duties and powers. It is only a failure to perceive the fundamental character of the relevant principles of construction that would oblige a defender of the rule of law to repudiate ultra vires. Such principles, reflecting the inherent demands of legality, provide a necessary conduit between enacted provisions and their legal consequences. Parliamentary sovereignty affirms the rule of law while giving scope for democratic change. It is for the people's elected representatives to rule through the institution of law; popular or political sovereignty is thereby transformed into the constitutional sovereignty that makes enforcement of the popular will legitimate.

Even though Sir John Laws acknowledges that ‘the duty to obey Parliament is given by the common law', which is ‘the higher premise', his acceptance of the ‘conventional doctrine' of parliamentary sovereignty commits him to an unnecessary confrontation between democracy and law.^[333] Rightly insisting that such values as ‘justice, freedom, and order' are the fons et origo’ of the common law, essential to its legitimacy, his repudiation of ultra vires reflects his denial that the ‘goodness of the common law' could be merely a function of the legislative power.^[334] Laws is anxious that the ultra vires doctrine, by attributing everything to legislative inten­tion, might undermine the principles of interpretation that the courts invoke to protect constitutional rights. When, however, those principles are properly recog­nized as fundamental law, the supposed danger evaporates. They cannot be swept away, even by an ‘actual' intent, revealed ‘on the face of the statute', because they serve to unite democracy and law, which operate in practice as interdependent values. Rather than concede that Parliament can ‘abrogate the rule of law', even if only by explicit provision, we should treat the legislative will as already attuned to the implicit requirements of legality.^[335] Any reasonable interpretation of the legislative command, respectful of legislative good faith—of the ‘conscience and wisdom' of Members of Parliament^[336]—would take an intention of compliance with law for granted.⁷¹

The limits of a statutory power are ascertained, then, by interpretation, which must proceed all the way from the most abstract account of the statutory scheme and purpose to the concrete consequences for the particular case. The greater the potential interference with well established or fundamental rights, in particular, the more reluctant we should be to concede the requisite statutory authority: the best interpretation is the one that offers the most persuasive reconciliation between statutory text, underlying purpose, and individual right in all the circumstances. We need for each case a general theory of the statute, responsive to all relevant aspects of political morality, and capable of adaptation to the constantly changing circumstances of practical administration. The ultra vires doctrine symbolizes that interdependence of legislative will and judicial reason, making the legality of an administrative decision dependent on appraisal of its statutory credentials, respectful of the legislative scheme. Its invocation, in striking down a decision, marks the combined injuries to legality and democracy: an ultra vires act is one that violates the legislative will, in the sense that it draws no support from the original grant of powers, correctly construed. Properly explained, the doctrine need not deny the fundamental status of the common law grounds of review; for since Parliament could not confer any power to violate the rule of law, any such violation would be necessarily in breach of jurisdiction.^[337]

As Sir John Laws recognizes, the statutory ouster clause confronts the court with a significant challenge to legality, to which it must respond: ‘the vindication of the rule of law is the constitutional right of every citizen'.^[338] But the principles of inter­pretation that preserve the common law constitution are sufficiently resilient to reconcile democracy and legality, as the specific administrative context dictates.^[339] The Anisminic case exemplifies the fundamental status of judicial review.^[340] By allowing the ouster clause to exclude review only in the case of non-jurisdictional error— decisions within the legitimate sphere of administrative determination—the court preserved the appropriate separation of powers. Decisions in excess of jurisdiction are made in breach of the legislative mandate, and hence in violation of democratic principle: ‘What would be the point of defining by statute the limit of a tribunal's powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?'^[341] Any idea of opposition or confrontation between legislative command and judicial response is superficial and misleading: the values of democracy and legality are not in conflict. By rejecting a claim on erroneous grounds, the tribunal had exceeded its jurisdiction, rendering its ‘determination' a mere nullity (or purported determination), obtaining no protection from the statutory barrier to any genuine determination being ‘called into question in any court of law'.^[342] Judicial circumvention of the ouster clause, if that be an apt description, was an evasion of its literal meaning only; and literal meanings rightly give way to more nuanced ones, reflecting the constitutional context in point.^[343]

In his judicial capacity, Sir John Laws reached similar conclusions in R (Cart & Ors) v The Upper Tribunal & Ors: the High Court's supervisory jurisdiction could not be excluded merely by the designation of the Special Immigration Appeals Commission and the Upper Tribunal as, in each case, a ‘superior court of record'.^[344] Whether or not these tribunals were subject to review (and in what circumstances) was a conclusion of common law, based on analysis of their respective constitu­tional roles.^[345] The court's ‘ingrained reluctance' to permit the exclusion of judicial review of tribunals of limited jurisdiction reflected the pertinent principle of the rule of law: ‘statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive govern­ment which (in the usual case) procured its making, and the public body by which the statute is administered'.⁸¹ If the final legal interpreter were the public body responsible for administering the statute, the decision-makers ‘would write their own laws'.

In affirming the requirements of the rule of law, the court also protects democ­racy. It permits a statutory tribunal to exercise the authority, including interpretative authority, appropriate to the constitutional function conferred by Parliament. As Laws explained, the effectiveness of statute law requires that public bodies be kept within the confines of their prescribed powers, as confirmed and clarified by judicial review:

Accordingly,... the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament's sover­eignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament's statutes are always effective; that is another.⁸²

What Laws describes here as conditions of sovereignty might be better presented as conditions of democracy: Parliament and courts co-operate to preserve the consti­tutional arrangements that underpin the British version of liberal democracy. An ouster clause can serve to justify a degree of interpretative freedom for the agency that would not otherwise exist: its existence is pertinent to the correct construction of the limits of the power conferred.⁸³ But it could not altogether insulate the agency against review without authorizing the exercise of arbitrary (illegal) power.

D.