#14850 - Theory Readings - Comparative Public Law

Theory

Constitutional review under conventional popular sovereignty model

• Democracy = a means of managing power relations to minimise domination

  • Does so by governance by consent of people — collective self-legislation — people author laws and then live under them

• BUT laws are in fact made by majority or their representatives

  • So minority require separation of powers to safeguard their interests

• That division of power is done according to constitution enacted by the people — even a self-interested majority recognise possibility that will become minority & so enact checks on power

  • BUT implies that the ‘people’ have the right to bind themselves in perpetuity — as judges striking down legislation are not acting by authority conferred by the current people — and that would surely require originalist interpretations of the Constitution

• By jurisdiction

  • UK — no written constitution or popular motion conferring such power on the courts

    • Except perhaps for distributive theory that judicial power originated in the King

  • France — Written constitution provides little support and courts have gone far beyond it

  • EU — Written constitution not enacted by popular vote but by negotiations between States

Legal (Craig) <> Political (Tomkins) Constitutionalism

Difference: How to hold the executive to account

• Political constitutionalism — political & institutional accountability — by parliamentarians, electors, political debate, questioning, investigation & scrutiny

  • Transparency, democracy, participation & representation, deliberation through committees, consultation to obtain evidence of impact — better suited to proportionality analysis

  • criticism of “juristocracy” — but not inconsistent with desire for substantive law that respects human rights & civil liberties

• Legal constitutionalism — accountability by judicial application of law

  • Justice, protection of minorities, human rights

Role of courts under political constitutionalism

• Uses arguments against strong JR to undermine JR of administrative acts — BUT —

  • To eliminate judicial evaluative exercises would undermine all adjudication in public & private law — interpretation of terms such as “inhumane & degrading treatment” is laden with value-judgments

  • Democratic deficit — executive power is delegated to civil servants who possess significant discretions, and deference is exercised by courts to extent necessary

  • Reduction in JR = reduction in individual redress in the particular case, even if gov can be effectively controlled through other means

    • Other redress mechanisms exist but eg to elevate ombudsman to same power as courts would create same objections

  • Would require exit from ECHR & HRA

• Rights & JR — Accepts judicially enforceable substantive rights only where

  • sufficiently narrowly defined & absolute — eg ban on torture

    • Determination of meaning/content of a legal term rather than balancing policy matters

  • process issues (eg fair trial rights)

    • Judges better trained to deal with procedural fairness — extends by analogy to consultation processes

  • <> qualified evaluative methods that require proportionality are problematic — really just political problems dressed up as judicial solutions (eg freedom of speech)

• Administrative powers — conferred by so must be limited by law: Entick v Carrington —

  • Should not engage in rationality or proportionality review

    • But divide between purpose/relevancy & rationality/proportionality is unclear — eg dismissal of teacher for hair colour is irrational <> hair colour is not relevant consideration

    • IE just depends how a case is pleaded

  • BUT Royal Prerogative — some executive power is not statutory — said to stem from the Constitution but in reality is a common law power given to the executive

    • <> in Australia, where constitution is written

  • Permits courts keeping public bodies within their power — but in what sense? — links into ultra vires debate

    • Narrow, pre-Anisminic JE (in different forms)

    • Misuse of power

    • Various principles of legality, incl LEs, equality, respect for rights

  • Permits courts to resolve ambiguity in power in favour of liberty — principle of legality

    • Craig — Not clear why this is so, if JR based on rights is impermissible

• Make findings based on evidence

  • Some evaluative judgments require evidence which is not usually before a court — judicial notice is a weak tool: eg ruling in Belmarsh that 9/11 constituted ‘public emergency’ (but striking down derogation from rights on basis that not ‘strictly necessary), made without any evidence

  • Corner House — HL weighing public interest in continuing investigation of bribery <> public interest in avoiding Saudi threat of ceasing cooperation on intelligence, risking lives of citizens — no attempt to ascertain the level of such a threat held decision of prosecutor to abandon investigation was lawful

Role of Parliament in Political Constitution

• Take care in conferring powers on executive

• Adopt thorough scrutiny measures, consultation, etc

• Courts should refer questions back to parliament — as under HRA — essentially Courts another layer in the QA process

  • Should extend HRA incompatibility declarations to findings as to scope of government powers — ie where not necessary as under Terrorism legislation, or where prerogative executive power too broad

UK

The need for justification

• All other exercises of power (legislative & executive) stem from a higher authority <> High Court does not, provided we reject the declaratory theory of common law

  • IE courts have the power they say they have: Sir John Laws

    • Necessary outcome of system where one institution has to be charged with determining the limits of power

  • BUT courts are restrained by convention, precedent, need to reason normatively & wording of constitution where applicable, opportunity to reason inter partes, etc

    • And relies on conception of power as factual in nature, divorced from the law

• <> Courts have only the power the constitution gives them

  • Required by the rule of law & to avoid arbitrariness

• In JR, courts transgress onto executive functions (and potentially legislative functions, which traditionally ensure proper conduct of administration)

Essay plan

• Ultra vires rule cannot account for the positive public law as it is today

  • Possibly legitimate to imply certain procedural restrictions but…

  • Supervision of non-statutory powers

  • Post-Anisminic & Page

• Ultra vires rule is the only one supported by UK Constitution

• Therefore everything in UK post-Anisminic is desirable but wrong — urgently need to put on constitutional footing

The ultra vires rule

= court my intervene if and only if administrative action ultra vires

• Parliament is sovereign

• To administer law, it gives authority to executive bodies

• Those executive bodies are subject to the constraints on the power given to them:

1. Content — must not commit jurisdictional error (in the narrow sense in Anisminic) — making decision not permitted to make

2. Manner — must not make decision in a manner outside implied limits on power conferred by Parliament (“broad” JE) = incompatible with good administration

• Includes

  • Procedural unfairness

  • Relevant/irrelevant considerations

  • Bad faith

  • Wednesbury unreasonableness

• Theoretically rebuttable — but courts reluctant to dispense with them

Consequences of ultra vires basis for JR

• If within jurisdiction in narrow sense, prima facie lawful — restrictions in broad sense must be developed with this in mind

• Courts could not substitute judgment for opinions of agency

Common ground between critics & advocates of ultra vires theory

• Basis for narrow JE

  • Public bodies should be kept within sphere of authority

  • That sphere is defined with reference to the legislative source of power

“Modified ultra vires”

• Concedes that

  • Legislature rarely has any positive intent as to content of JR

  • Courts can legitimately review exercises of non-statutory power

• But maintain that ultra vires theory necessary to maintain parliamentary supremacy

• Parliament intends that powers conferred be exercised in accordance with rule of law — impossible to have specific intention so leaves to creativity of courts

  • Requirements of rule of law / constitution shift and so does JR

• Possibilities of relationship between legislative intention in conferring power and judicial review

  1. Positive intention that no implied limits on power

  2. Positive intention of detailed implied limits attributed by courts

  3. Can only grant subject to condition of good administration — implies constraint on powers of Parliament

  4. Either grants or withholds authority to act unreasonably — requirements of rule of law create presumption that such authority is withheld

     1. Favoured by modified ultra vires theorists

  5. No relationship — common law supplies principles of good administration

     1. Favoured by common law theorists

Arguments against the ultra vires rationale

Narrow conception of JE — too indeterminate

• All determinations of law are a precondition to exercise of a statutory power — Various approaches to establishing JE <> error within jurisdiction

  • Limited review

  • Collateral fact doctrine

    • ie including where conditions to exercise of power misconstrued as well as disregarded

  • Extensive review — all errors of fact

• Ultra vires provides no particular support for any of these — therefore loses potency as legitimising force for any particular one — mere fig leaf giving ex post legitimacy, but no guidance ex ante

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