#19885 - Constitutional Foundations Of Jr Summary - Constitutional Law

The Dialogic Model

On the model, PS remains supreme. The courts want to give effect to P’s intentions, but are willing to engage in a dialogue with P to determine what those intentions are, holistically. This is fairly rooted in PS; the conversation goes something like this. So, when the courts disapply statutes – like the Merchant Shipping Act 1998 in Factortame – because they’re incompatible with EU law, they are assuming Parliament didn’t intend to legislate in contrast to the ECA 1972, which Parliament passed. They’re saying ‘you screwed up this time, so we’ll change the statute because you said before you wanted to follow eu law. If you don’t in this case, feel free to amend/pass another statute stating your intention in clear words’. The courts will give effect to legislation incompatible with EU law if the legislation’s clear enough – Thoburn.

The purpose of the courts in JR, then, is to start the conversation, and put some effort into overcoming bureaucratic inertia of the legislature. It’s ultimately up to Parliament to do something. Perhaps, when interpreting legislation, ‘dialogue’ is a bit of a stretch, though. Especially with regard to s.3 – Lord Millett in Ghaidan described its power as ‘quasi-legislative’. This seems to no longer about prompting the legislature into action, and has potential separation of powers implications. So, it seems this model can’t explain everything with relation to justifying review.

Justifying judicial review by relation to parliamentary intent is only necessary if you believe parliament is sovereign.

The ultra vires doctrine

The courts just enforce the limits Parliament conferred on ministerial powers. If Parliament give Minister to authorise the construction of new schools, and it authorises a nuclear power plant, Minister is clearly acting outside their remit. Therefore, JR in these cases is justified simply by reference to application of Parliament’s law.

However, this doesn’t explain other grounds of review springing from the common law which Parliament makes no reference to in the statute. Minister must made a decision fairly, reasonably and on the basis of all relevant, but no irrelevant, information. UV theorists say Parliament does intend these common law grounds of review implicitly in the statute. Parliament could always legislate to object to grounds of review if it disagrees with them, so it must agree with them in the statute conferring powers. Laws and Forsyth criticise this as a stretch of Parliamentary intent – if P has said nothing about subjecting powers to common law JR, how do we know it meant that?

Additionally, how does UV explain JR of non-statutory powers, like prerogative? P had nothing to do with the creation of these powers, so you can’t justify it by reference to purported P intent. The textbook refers to this objection as an insurmountable objection.

Principles of JR have been developed by the judiciary in the common law, not by Parliament. Did Parliament intend this? Well, they didn’t object, but they approve explicitly either.

Also, courts have responded with hostility to attempts to oust JR, despite a clear ouster clause. UV can’t explain this.

Common Law Theory

UV says JR is justified because we’re enforcing Parliament’s intent (if you buy that grounds of review are implicitly consented to by Parli in the statute). Common law says JR comes from common law. When a court strikes down a minister’s decision, they do so because it contravenes a common law principles, perhaps of fairness, and it has nothing to do with P’s intent. This explains why non-statutory powers are reviewable.

Forsyth objects on the ground that Parliament either authorises or does not authorise a decision. If Minister makes decision x, it is either authorised, or not authorised. There is no need to reference common law because this is covered by UV. This is a pretty stupid argument.

The common law theory does face legitimate criticism, though. Say Parliament gave a minister powers to act directly against review principles, and by extension, RL. Parliament says Minister does not have to detail their decision-making process, nor consult any experts on the matter. They have 1 day to decide whether to build a school or not. Common law theory would be forced into conflict with PS – if you argue JR is from common law principles, then those common law principles, if used to justify quashing the minister’s decision, would directly contradict Parliamentary intent. If Parliament is sovereign, this is impossible. Critics argue this does not sit with our constitutional structure. So, an impasse is reached.

In Summary

Ultra Vires maintains PS, but is seriously flawed. Common law is less flawed, but can’t account for a sovereign Parliament.

Resolving the Common Law Theory Problem

Forsyth argues every action a minister takes is either authorised or not by Parliament. Laws disagrees – Parliament can be agnostic as to the exercise of such power. A vacuum then emerges, which is filled by common law review principles.

There’re problems with this. You can’t argue none of the grounds of review are related to the will of Parliament. Where Minister had powers to authorise the building of schools, but instead authorised a nuclear power plant, this can be struck down plainly as being outside of the scope Parliament gave Minister. The ground of fairness seems also to depend on...