Judicial review

the principal focus of judicial review has been on the way in which the decision is taken, rather than
on the decision itself.

n such circumstances, a court, on judicial review, could not second-guess this—that is, a judge, in a
judicial review case, cannot overturn a government decision simply because she disagrees with it.
This is not to say that the court cannot examine any aspect of the decision itself (as distinct from the
way in which it was made). For example, as we will see, if the government were to make a wholly
unreasonable decision,1 or a decision that unacceptably compromised individuals’ human rights,2 a
court could intervene. But this is very different from courts being able to overturn decisions simply
because they disagree with them, or because the judge—if she had been the Minister—would have
arrived at a different view

As Laws LJ has explained, the court ‘does not ask itself the question, “Is this decision right or
wrong?”’, and judicial review has ‘nothing to do with the question, “Which view is the better one?”

Review procedural methods and determine whether any errors with procedure that are illegal.

Minister, together with his departmental officials and advisers, is likely to be in a much stronger
position to evaluate the relative environmental and economic implications of giving the go-ahead to
the new airport. Recognising that they lack expertise on these sorts of questions, the courts have
therefore traditionally accepted that they should not second-guess the decision- maker on matters
of substance.

Two reasons for limiting judicial review: institutional capacity and democratic legitimacy.

it is open to the Minister to retake the decision in a procedurally fair manner, perhaps eventually
reaching the same conclusion—that the new airport should be built. Judicial review, in such
circumstances, does not therefore curtail the ultimate discretion of the decision-maker: it does not
directly bear upon whether it is lawfully open to the Minister to decide to give the green light to the
new airport. Rather, judicial review, in this procedural guise, ensures that the decision- maker
exercises his discretion in a fair and lawful way.

If stop them from doing their plans because of its merits. This may be regarded as objectionable,
since it involves the court taking out of the democratically accountable Minister’s hands a matter
that, in the first place, Parliament had given him the authority to decide.

he dominant position of the executive raises obvious challenges in terms of accountability. It also
gives rise to an associated paradox. The more powerful the executive, the greater the need for
effective systems of accountability to guard against and deal with abuses of power—and, yet, as we
saw in Chapters 5 and 10, the very dominance of the executive is an obstacle to such accountability.
Against the background of a powerful government that exerts enormous influence over nearly every
aspect of life, and a Parliament that is limited in its capacity to hold that government to account,
people have unsurprisingly looked increasingly to other institutions, including courts,

recognise that judicial review is a mechanism for holding a much broader range of bodies, including
local authorities and devolved governments, legally to account

The role of judiciary as protecting the rights of minorities may not successfully support judicial
review as under this ideology allowed to review the content of the ministerial decisions. An
important role of the court, on this view, is to provide an independent assessment of whether an
acceptable balance has been struck between the interests of the minority and the majority.
Judicial review

Farwell LJ remarked (over 100 years ago) that because (as he saw it) ministerial responsibility was no
more than ‘the mere shadow of a name’, the role of the courts was crucial: they were, he said, ‘the
only defence of the (p. 482) liberty of the subject against departmental aggression’.14 Judicial
review, according to this analysis, is a practical response to the weakness of ministerial
accountability—hence the shift of emphasis from parliamentary to judicial

means of controlling government, which forms an important part of the trend towards legal (and
away from political) constitutionalism.

pragmatic argument rests on the more modest claim that judicial review is at least an acceptable
substitute for political modes of accountabilitiy

could potentially talk about in essay the shift from political to legal constitulutilalism as the
parliamentary methods for holding executive to check fall short of standard as page 9 discussion

Sceptics view on judicial review and rights: false premise that rights have legal character. Rights are
political in nature. Is it not better that the government who are capable of dealing with the page 10

power has long been shared between central and local government, and courts have therefore been
called upon from time to time to resolve demarcation disputes between the two. For example, the
courts have been required to determine the extent to which central government can impose its
policy preferences on local authorities,24 and the extent of ministerial powers to curb increases in
local taxes.25

The ultra vires doctrine: is that courts enforce whatever limits the relevant legislation imposes upon
ministerial powers. In such a situation, the Minister would self-evidently be acting outside his
powers, and it seems natural that courts, as enforcers of the law, should be entitled to take
appropriate steps to deal with such action. the courts are simply policing the boundaries upon
government power stipulated by Parliament. he reality, however, is that judicial review sometimes
goes far beyond determining the limits of the statutory powers exercised by government ie
determing what is a reasonable and fair procedure. Ultra vires theorists respond to this difficulty by
saying that Parliament intends to limit decision-makers’ powers in all of these ways, even if it fails to
say so explicitly.

Criticisms of ultra vires: If Parliament has not said that it is withholding from decision-makers the
power to act contrary to the principles of judicial review, how do we know that it meant to withhold
such powers.

1. The range of bodies and powers subject to judicial review increasing which includes then
non-statutory powers such as royal prerogatives. No longer enforcing limits of statutory
prowers. If Parliament has not said that it is withholding from decision-makers the power to
act contrary to the principles of judicial review, how do we know that it meant to withhold
such powers?
2. Second, we will see in Chapter 12 that the principles of judicial review— that is, the limits on
power that courts are prepared to enforce—have evolved considerably in recent years.
There is, however, no evidence that Parliament intended any of these changes. Parliament
has never legislated for the growth of judicial review
3. the courts have fiercely resisted parliamentary attempts to prevent judicial review of certain
matters—and they have done so even in the face of clear statutory language designed to
exclude judicial review.
4.
Judicial review

5.2 The common law theory:

common law theory views judicial review not as a statutory creation but as rooted in the
common law. Viewed in this way, if a court were to strike down our hypothetical Minister’s
decision to grant permission for a new airport on the ground that the decision had been taken in
a procedurally unfair way, this would have nothing to do with the intention of Parliament. The
court would simply be enforcing a common law principle that public decision-makers must act
fairly. . Instead, it is possible to acknowledge that the law of judicial review has been developed
by judges who have incrementally fashioned legal principles through the development of case
law.

Criticisms: does not adequately fit with the basic arthictecture of the constitution.

If the parliament has given authorisation for the government to do something then have not
prohibited them for doing so in an unfair procedural manner. ‘[I]f Parliament grants a power to a
minister, that minister either acts within those powers or outside those powers. There is no grey
area between authorisation and the denial of power.’ However, there is an obvious problem. If
Parliament has authorised the making of unfair decisions, it is constitutionally impossible—if
Parliament is sovereign—for the common law to prohibit the making of such decisions. In effect,
the common law is removing from the Minister authority that was given to him by Parliament.
Critics of the common law theory therefore contend that it is unconstitutional to the extent that
it purports to enable courts to prevent decision-makers from doing things that the sovereign
Parliament has authorised.

the common law theory is not incompatible with the principle of parliamentary sovereignty

Defence of comman law theory: it is compatible with parliamentary sovereignty: Forsyth is

wrong to suppose that a Minister. is either authorised or not authorised to act. Parliament may
be agnostic —it may have no opinion one way or the other—about how the powers that it
confers should be exercised. This, says Laws, gives rise to a ‘vacuum’—created through the
absence of any relevant parliamentary intention—that can legitimately be filled by common law
principles of judicial review.

BUT: implausible to argue that the none of the grounds of judicial review relate at all to the will of
parliament. Even where courts are enforcing more general principles, such as those of procedural
fairness, they may well be influenced by the statute when determining what fairness requires in the
context.39 It may therefore be thought that the common law position— that legislative intention is
wholly irrelevant to the grounds of judicial review—is an overreaction to the ultra vires doctrine’s
admitted shortcomings

2. common law theory’s ascription of agnosticism to Parliament sits uncomfortably with broader
ideas—explored in Chapter 5—about the relationship between legislation and the rule of law.The
difficulty, therefore, with Laws’ defence of the common law theory is that it requires us to suppose
that Parliament is neutral about the rule of law values that judicial review protects.

5.4 Development of the ultra vires theory

it is possible to identify a more plausible relationship between the will of Parliament and the grounds
of judicial review. Their response is that it is possible to do so in two ways. First, by disowning the
incredible claim that every last detail of the grounds of judicial review can be traced to (largely
unexpressed) parliamentary intention. And, second, by relying instead upon the more modest
presumption that Parliament intends the powers that it creates to be exercised in conformity with
Judicial review

the rule of law, while leaving it to the courts to work out what this means in individual cases.
because Parliament intended the detailed content of (p. 492) those principles, but because the
courts have developed them against the background of Parliament’s general intention that
ministerial discretion should be exercised compatibly with the rule of law.

Allan is suggesting that parliament is not sovereign at al but rather parliament legislates according to
fundamental constitutional principles such as rule of law.If asked ‘why are decision-makers required
to act fairly?’, ultra virestheorists would respond, ‘because Parliament, directly or indirectly, so
intends’. However, Allan would say, ‘because Parliament can only create decision-making powers
which can be exercised in line with fundamental constitutional principles such as procedural
fairness’. Suppoerted by Lord Steyn and Baroness Hale in Jackson case.

Chapter 12:

There are four principal grounds of judicial review:

● Legality Administrative decisions must be taken in accordance with the law. The applicable law
concerned may be statutory provisions or common law rules. For (p. 498) instance, if a public
authority exercising its statutory powers takes a decision outside the limits of those powers, then it
will be acting unlawfully. Questions of legality therefore often raise issues of statutory
interpretation. However, there are also common law principles of legality, such as the non-
delegation principle and the rule against the fettering of discretion. This ground of review is covered
in sections 2 and 4 of this chapter.

● Procedural fairness When a public authority takes a decision that may adversely affect an
individual’s interests and rights, it must use a fair procedure before taking that decision. For
instance, the person concerned may be entitled to a hearing before any decision is made. Further,
the decision-maker concerned should not have any personal interest in the outcome of the decision.
This ground of review is covered in section 3.

● Unreasonableness Administrative decisions must not be unreasonable. However, in public law, a

decision is not ‘unreasonable’ just because the court thinks that a better decision could have been
made. Instead, the courts can only intervene on this ground if the challenged decision is so
unreasonable that no reasonable decision- maker could ever have arrived at it. This ground of review
is considered in section 5.

● Proportionality A decision is disproportionate if the decision-maker has gone further than is

necessary in order to achieve its purpose (or, as the point is sometimes put, something will be
disproportionate if a ‘sledgehammer has been used to crack a nut’). A decision will also be
disproportionate if it infringes an individual’s rights without adequate justification. This ground of
review is used particularly in the context of human rights challenges, but it is also increasingly
applied in

Elliott and Varuhas, Administrative Law Text and Materials Chapter 1

Private law cannot adequaltely regulate all circumstances of government powers. Admin law regulates
government and public bodies kaw.
Judicial review

while it is uncontroversial that administrative law’s central purpose is to secure good government
along these lines, the same cannot be said of the methodology by which that objective is to be
secured. For instance, should courts bear primary responsibility for ensuring good administrative
conduct, or can this better be secured in some other way.
Red light theory: primary function of admin law should be to control excesses of state power and to
subject such piwer to the rule of law courts. Power of all other public bodies subject and subornidinate
to law. All subject to legal limitations no such thing as absilote or unfettered administrative power.
2ndly even if parliament sanctioned can still be striked down as incompatible with judge made rules.
Keep government within their bounds. Not really malice or bad faith may misunderstand legal
position. Abuse is therefore inevitable as complex. Courts charged with securing good enviromentn.
A corrective to be invoked when power is abused. And courts and public bodies are combatants.
Green light theory: do not favour unrestricted arbitrary state. More focus on political process. Role of
courts to act facililtate legitimate government action and promote the public interest. Control of courts
should be minimised and the control they exercise is unrepresentative and democratic. Reduce
discretionary power of courts. Direct and internal. Internal control of government bodies. Prospective
and retrospective control. But can be prospective if gov accepts judicial precedent as defining limits.
Governemnts are more policy oritented. Fire-watching. Adminstraitive justice and tribunals council to
internally watch gov. rgreater trust in potical process and ministerial accountablity and more robust
internal administrative legislation. nd instead prefers to place greater trust in the political process—
not only through the somewhat fragile doctrine of ministerial accountability, but also by means of
more robust techniques of internal administrative regulation. This, in turn, re-characterizes
administrative law itself: it shifts from being an external restriction upon state power which is largely
concerned with righting wrongs occasioned by maladministration, and is instead conceived of as a
framework which facilitates good government by providing a template of good practice, and practical
mechanisms which permit the administration to regulate itself.
R and G theories are polar opposites in reality rely on both theories. Court based and internal
regulation. Amber light theory.judicial internventon does not have to be entirely commbatnt. Positioni
smore complex. Provides theoretical framework. How should the courts act.
The changing face of judicial review:
Other court based methods of regulation ombudsman, tribunals.
The scope and intensity of review:grown wider in scope and intensity has increased, courts intervene
if only specific fauly can be established. Disntionction between appeal and review has fundamentally
shaped judicisl review. Concerned with legality of decision internvention only possible if exceeded
legal imits. Much narrower than appeal. Appellate bodies given the power bto adopt a bold approach
but not reviewing courts. And reviewing court role depends on a constitutional assumption and do not
decide on subject matter because this is usurping power of gov. disntiotn between appeal and review
under pressure.
Is judicial review a good thing?
Other bodies may be better at supervising administration as can also challenge the subject matter
oggovernment desions. What, then, of judicial review? I suggest that the focus of judicial review
should shift to more authentic concerns from its present preoccupation with commanding adherence to
‘ordinary’ law, often couched in the spurious language of ‘jurisdiction’ and ‘error of law’ and
analogies to traditional court practices misdescribed as ‘natural justice’
The constitutional basis of judicial review: how do we rationalise the existence of courts
constitutionally.
Judicial review

The ultra vires doctrine:courts intervene when act beyond powers. Merely doing parliaments bidding
which are found in statute. Baxter, Administrative Law (Cape Town 1984) at 303, explains: [T]he
logic behind the doctrine provides an inherent rationale for judicial review … The self-justification of
the ultra vires doctrine is that its application consists of nothing other than an application of the law
itself, and the law of Parliament to boot. Embraces principle of parliamentary sovereignty therefore
parliament intent. And simply because they are implementing legally unimpeachable legislation they
have a strong constitutional justification. the statute—Forsyth and Elliott [2003] PL 286 at 299–303
point to Lloyd v. McMahon [1987] AC 625, R v. Secretary of State for the Home Department, ex
parte Venables [1998] AC 407, and Padfield v. Minister of Agriculture, Fisheries and Food [1968]
AC 997 as leading examples of this phenomenon—there are many others in which the courts enforce
principles of good administration which bear no obvious relation to the statute. Laws [1995] PL 72 at
78–9 comments that
[i]n the elaboration of [principles of judicial review] the courts have imposed and enforced judicially
created standards of public behaviour … [T]heir existence cannot be derived from the simple
requirement that public bodies must be kept to the limits of their authority given by Parliament.
Neither deductive logic nor the canons of ordinary language … can attribute them to that ideal, since
… in principle their roots have grown from another seed altogether … They are, categorically, judicial
creations. They owe neither their existence nor their acceptance to the will of the legislature. They
have nothing to do with the intention of Parliament …
Craig: constraints on judicial review are constantly evolving and some of these evolutions cannot be
explained by reference to legislative intent. Some statutory provisions seek to exclude the courts from
judicial review through th epresense of preclusive or finality clauses. Difficult to maintain that theyh
are implementing legislative intent when parliament has suggested that judicial review should no
toccurt. But courts have tried to mimise the effect. the reality is that the courts were reaching their
decision by drawing upon a constitutional principle independent of Parliamentary intent The essence
of this principle was that access to judicial review, and the protections which it provides, should be
safeguarded by the courts, and that any legislative attempt to block such access should be given the
most restrictive reading possible, irrespective of whether this truly accorded with legislative intent or
not
The common law theory: increasing prominence of bodies perforoming publicfunctions but not
created by statute or exercing statutry powers. Oliver: the principles of good adminstrarion are judicial
crations that form part of the common law.
Craig on common law theory: pinricples of judicial review are in reality developed by the
courts.creations of common law. Legilslature will rarely dictate contents and limits.courts do so on the
grounds of justice rule of law. Parliament can still dictate the nature of these controls an dcourts
should listen. open acknowledgement that the judiciary has largely created such principles, just as
common law principles of tort, contract, and so on have been fashioned by judges. Hence the
justification for enforcing the principles of review lies not in Parliament’s wish that they should be
enforced, but in the fact that such principles are desirable in a normative sense, since their application
helps to secure good government. The common law model can also comfortably accommodate the
changing content of administrative law—eg the emergence of new principles of review—which, as
Craig notes above, cannot plausibly be explained away, as the ultra vires doctrine would have it, on
the basis of changing legislative intention. The common law theory simply acknowledges that the
nature and level of judicial control of the administration varies over time, as circumstances change.
Allan and common law: Second, what of those circumstances in which the relationship between
judicial review and the legislation is tenuous or non-existent? Plainly, legislative intention cannot
furnish the explanation here: but it does not necessarily follow that the common law theory can. As
Allan points out, it is all very well to invoke concepts such as fairness and reasonableness, and to
Judicial review

argue that their normative weight justifies their application via judicial review. Such concepts,
however, are undeniably vague: one person’s conception of fairness might differ quite radically from
another’s.
Must judicial review be related to legislative intent?
Even though UVD is indefensible it essential that there be a relationship between parliamenrary
intention and judicial review.which has led to a modified version of the theory.
2. argument which favours the retention of some form of ultra vires
theory. The essence of this part of the argument is that the courts’ supervisory jurisdiction and the
sovereignty of Parliament can only be reconciled by means of (some version of) the ultra vires
doctrine Forsyth: failure of legislative intent is that it requires parliament to express or imply
boundaries. There is no grey area between authorisation and the denial of power. Thus, if the making
of vague regulations is within the powers granted by a sovereign Parliament, on what basis may the
courts challenge Parliament’s will and hold that the regulations are invalid? If Parliament has
authorised vague regulations, those regulations cannot be challenged without challenging Parliament’s
authority to authorise such regulations. The upshot of this is that … one is led inevitably to the
conclusion that to abandon ultra vires is to challenge the supremacy of Parliament.
BUT It is simply not correct to assert that ‘there is no grey area between authorisation and
prohibition’ … It is, as a matter of logic, quite possible for Parliament neither to authorise nor to
prohibit a particular act. t Parliament is sovereign, and can therefore, at least in theory, do as it
pleases, the reality is that a high level of protection is conferred upon the rule of law by means of
statutory interpretation
y Anisminic Ltd v. Foreign Compensation Commission
[1969] 2 AC 147 and R (Evans) v. Attorney-General [2015] UKSC 21, [2015] AC 1787, in which the
House of Lords and the Supreme Court respectively went to considerable lengths to find
interpretations of statutory provisions which were consistent with fundamental constitutional
principles
Legisltative intention is not necceary because: ‘Parliament does not legislate in a vacuum. Parliament
legislates for a European liberal democracy founded on the principles and traditions of the common
law. And the courts may approach legislation on this initial presumption.’
The modified ultra vires theory: based upon consitituional interpretation.
Parliament intends to legislate in conformity with the rule of law which bridges the apparent gulf
between legislative silence and the developed body of administrative law which today regulates the
use of executive discretion.
Tomkins: In defence of the political constitution
Summary of red light and green light theories highlighted.
Parliament democracy and supremacy is subjected to the rule of law and the courts must uphold these
consititutional limits and prevent the overstepping of parliament. Amber light theory is the most
antagonist position of the law towards politics.
2. The liberal-legal attack on Politics, and Loughlin’s response
Legal liberalism is “enclosure of politics within the straitjacket of law”. Loughin disagrees with the
view that politics and law are polar opposits but rather that they are mutually involved and intertwined
with each other.
Judicial review

Liberal legalist attitude does not favour the significance of parliament intention of judicial review as it
believes political realm should be captured and confined by law.
Louglins practical engagmeents demonstrate the various ways that law and politics share the same
domain:
Gulf War of 1991-the reaction of the United States and its allies to Iraq’s invasion of Kuwait in 1990
was motivated in part by the power politics of state interests in the international oil industry and in
part by the fact that Iraq breached an elementary principle of international law. Demonstrates that law
and politics required to explain the world of nternation relations.
Second case study is the governments persuasion of parliament to join the European Economic
Community.Occured through legal instrument and resulted in fundamental constitutional change
leading courts to suspend acts of parliaments. Issues of legal interpretation placed at the centre of
legal process. Dramatic legal consequences as a result of political decisions. \
Third Case Study: Arms-to-Iraq story, the UK government had secretly been encouraging arms
dealers to expoert arms and so-called goods to Iraq.
Fourth case stufy: sentencing in criminal justice. Row between home secretary and Lord Chief Justice
about sentences for repeat offenders. 1. Maybe considered as judicial interference into party politics 2.
Ointerefrence into public controversy
The virtue of politics
USA clearly has a presidential and legal constitution as it allows for the supereme court in Bush v
Gore determine who the president was however in UK it would have been political producedures, the
parliament would have passed a motion of some sort and limited the interference of state/
NOTE FOR TUTORIAL LOOK AT REPUBLIC CONSTITUTIOALISM
Sumption Lecture:
Necessary to look at history to determine the role of judiciary and the limits of judicial review.
Looking at the example of France first country t odevelop a coherent scheme of public law and
Portalis stated that judicial review is tantoamount to a judicial government. Greater separation in
France. The only supreme court in France is the people. Do not really have jurists interveningin the
political process.
Whereas US, less judicial constraint far more judicial involvement in the state.
Paragraph 12 could be evidence of parliament intention is becoming less significant.
Paragraph 13, 17
Sedley paragraph 4