#14848 - Theory - Comparative Public Law

Lecture MT1: Overview & Theory

Background notes: defence of the ultra vires doctrine

• Ultra vires doctrine – except for error of law on the face of the record, the constitutional basis for judicial review stems from the presumption that where power is conferred, it must be exercised within jurisdiction, reasonably (in a Wednesbury sense) and in accordance with procedural requirements

• Criticisms

  • Doesn’t capture application to non-statutory bodies exercising non-legal powers (eg Takeovers board)

    • BUT common law provided for restrictions of power of those exercising monopoly – eg ports, wine cases, Hale LCJ – because it becomes a public right rather than simply a private one

    • Recognise that common law provides basis for some forms of judicial review

      • Eg error of law on face of the record – although nearly all errors now subsumed into JE in England

      • Does not subvert parliamentary supremacy – can always intervene legislatively

  • “Weak” criticisms – that there is nothing in parliamentary intention that necessitates limits on power prescribed by JR – the source of JR is the common law, not ultra vires

  • “Strong” criticisms – that it follows further that there is a limit on parliamentary supremacy insofar as the courts can strike down legislation

Comparative administrative law – three levels of abstraction

1. General principles & ideology

   1. Protect need to protect fairness, human rights, accountability, rule of law, democracy, equality

   2. Common to all 3 systems

   3. Eg need to protect hearing

2. General forms of legal challenge / heads of judicial review

   1. Dependent on history, constitutional structure etc

   2. Greatest differences start to emerge between systems

   3. Eg Natural justice – rule against bias & right to fair hearing

3. Detailed articulations of what those individual heads mean

   1. Substantive rights constituting right to fair hearing

   2. Eg right to oral hearing

   3. Less differences – actual outcomes

• Eg. Discretionary exercise of power

  • Proportionality control in Europe, Rationality in UK & France – but similar outcomes eventuate

• Common to each jurisdiction – creative courts

  • UK – developed from common law – since about 17^th century at latest – more than most of European countries

    • More difficult to justify as Courts of inherent jurisdiction

      • Tribunals and Supreme Court have statutory jurisdiction

  • ECJ – not complete account of principles of judicial review in treaty

    • Historically – scope of decision-making has expanded gradually necessitating greater levels of JR

    • Developed from constituent States

  • France – Also not in Code

    • Creation of Conseil d’Etat – head of Admin courts in France – developed admin law principles

• Question as to jurisdiction of courts to act in that way – common law or ultra vires

EU: “There is no State”

• History of EU important to evolution of JR – when originally set up didn’t have

  • Democratic input from European Parliament

  • International arrest warrants

  • Wide scope of decision-making power

• Dealing with two levels

  • EU bodies

  • Different member State administrative institutions making decisions within sphere of EU law

    • All regulation administered at national level

    • Those national officials bound by EU law

  • Directives which member States are supposed to implement by legislation: see Digital Rights Ireland (striking down Data Retention directive)

  • Consequence that difficult to get standing before the Court directly

    • Can get indirect challenges via domestic courts uplifted to ECJ

• EU influenced by domestic jurisdictions

  • Not always common between states – particularly problematic in human rights protection

  • Conflicts between EU

• Unlike France & UK which derives power from sovereignty, has to derive powers from treaty (similar to Federalism)

  • Art 263(2) TFEU confers jurisdiction on the ECJ for: “lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.”

  • Derived from French system

  • Article unchanged since 1958 – Travaux praparatoires not released for 30 years and still not properly analysed

  • Court doesn’t refer to source of power

    • Activism of Court extends to this

    • Pragmatic reason – they don’t know because sources not available?

    • Court filling in gaps to reflect administrative constraints in domestic systems

    • Justifiable in respect of EU institution

    • Has less federalist attraction when acting in respect of domestic officials / legislatures implementing EU law

  • Academic literature – assumes based on this provision

UK: “State is bad”

• Wary of giving power to administrative bodies that may take freedoms away from individuals – liberal democratic theory

• Starting point – ultra vires theory

  • Administrative bodies set up to perform certain functions by legislation

  • Court ensures that administrative bodies acting within those pockets of power

• Now – administration more centralised and complete

• Anisminic case – broad & narrow judicial review – so flawed that no decision in the first place

  • Ouster clauses – difficult therefore to reconcile with ultra vires theory

  • Unlawful exercise of discretion nonetheless susceptible to JR

• Concern about Courts getting involved in policy/democratic processes

Judicial activism – UK

• Political constitutionalism v legal constitutionalism

  • Tomkins v Craig articles

  • Political constitutionalism – Parliamentary supremacy

    • BUT no theory that gives no control over legislative power

    • Still give some role to legal (judicial) controls

  • Legal constitutionalism – more legal controls, natural justice, rule of law

    • Always recognises that some level of defence to parliament required

    • Still give some role to political controls

  • Query whether theories are actually separate – both come from different starting points and end up in the middle

• Modified ultra vires theory v Common law theory

  • Common law theory –

    • courts have the power to develop common law in private & public law

    • will of parliament is ambiguous – within bounds of ambiguity can be developed by common law

    • BUT parliamentary sovereignty – cannot allow courts to override parliamentary intention

  • Modified ultra vires theory – Craig – judicial review targeted to enforcing will of legislature – administrative bodies acting within power

    • Express & implied limits on powers

    • Parliament legislates against backdrop of constitutional principles which constrain administrative powers

    • BUT particular examples not legislative

      • Natural justice principles not from Statute

      • Limits on exercise of discretion – unreasonableness, etc

      • Ouster (privity) clauses – Jackson (obiter); Anisminic JE

    • BUT uncertainty as to content and provenance of ‘background principles’ and implied limits on administrative power

      • Developed by judges in the same way as the common law – just the common law theory by another name

        • Acknowledged by MUV theoriests themselves

        • Theory recognises level of sovereignty delegated to Courts

      • Implied limitations greater upon recognition of proportionality, equality, etc

France: “State is good”

• Constitutional background

  • Several constitutions – more fluid and subject to many revisions

  • Didn't originally have Constitutional Court that would strike down laws – has evolved now

  • Deference to parliamentary supremacy

  • QPC – now have ability in judicial proceeding to refer Constitutional question up to Conseil Constitutionel, then remitted to lower court to apply

  • Different understanding of separation of powers

    • Conseil d’Etat top of admin law courts

    • Cour de Cassation at top of civil/private law courts

    • Tribunal de conflit

    • Strict separation of powers – administrative judiciary keeping check on administration – technically part of same body

      • Heavily criticised by Dicey

    • Conseil d’Etat gained strength over time – but based on desire to optimise good administrative decision-making

      • Cf. ‘keeping administration in check’

• Cursory and declaratory form of judgment – reflective of preference for positivist style of adjudication

  • Particularly activist style, pretend to be positivist but quite often seizing on fairly tenuous sources in preambles of Constitutions / principe generaux de droit

  • Eg General principles of equality / human dignity that do a lot of work

France — Constitutional foundations

French Constitution

• Adopted in 1958 (Constitution of the 5^th republic)

  • Has been amended 18 times since enactment – recently amended to a substantial degree

• Written text bears little on practice

  • Parliamentary system

  • In practice, presidential system

• Structure

  • Preamble

    • Recalls DRM of 1789 following regulation

  • Legislative power – heads prescribed by art 34 (= Aus s 51)

    • But nearly everything falls within power

    • Reduced powers of parliament

  • Executive power – regulatory Acts – residual power in art 37

    • Exercised by PM

    • In reality rarely exercised, still majority through parliament

    • Regarded as ‘administrative legislation’ and therefore subject to review

• Exercise of legislative power under art 34

  • Legislation generally drafted on broader level of abstraction – French Acts are shorter & rely more heavily on legislation

  • So broad that require implementation by statutory instruments to be effective – problems arise when no such implementation is forthcoming

    • Even though same department of government is responsible for initiating act and for drafting ‘regulations’ to implement

    • Officially all regulatory power of implementation is in PM’s hands – delegates to Ministers

  • Conseil d’Etat has in some cases declared that State has...