JUDICIAL CREATIVITY JUDICIAL LEGITIMACY ADMINISTRATIVE Christopher Forsyth Linda

JUDICIAL CREATIVITY JUDICIAL LEGITIMACY ADMINISTRATIVE *Christopher Forsyth * Linda AND IN LAW Whittle* ***Christopher Forsyth is a Reader in Public Law at the University of Cambridge. Linda Whittle is a research assistant at Robinson College, Cambridge. This Lecture is an extended version of a lecture given by Christopher Forsyth at the University of Canterbury Mian Ali Haider L. L. B. , L. L. M (Cum Laude) U. K.

INTRODUCTION The last fifty years of the twentieth century was a period of unparalleled judicial creativity in the field of administrative law. Not only were the grounds of judicial review significantly extended, but the range of bodies subject to judicial review was also much widened. The functional justification for this growth in judicial review is obvious: there had been very considerable growth in the powers of government and, particularly when where there were few other effective forms of accountability, it is appropriate and necessary that the courts should ensure that these powers were fairly and reasonably exercised

MATERIAL QUESTIONS But what was the constitutional justification for this extension of judicial review? Where was the legal rule or rules that gave the power to the judges to intervene? Put more directly what was the answer to the officious but pertinent question asked of our judges: who are you to interfere in the exercise of a discretion entrusted to a democratically accountable decisionmaker by a democratically elected Parliament?

The orthodox foundation of judicial review was long thought to be the doctrine of ultra vires and several recent House of Lords decisions have upheld a form of the doctrine in terms. The traditional ultra vires doctrine holds that when the judges review, and in certain cases, quash the decisions of ministers and officials, they are simply policing the limits of the powers granted to the relevant decision-makers by Parliament. However, this traditional account seemed increasingly implausible as nonstatutory bodies were subjected to judicial review - there could be no question of policing the statutory limits of their powers. Moreover, as the grounds of judicial review became more subtle it could hardly be said that Parliament ever had a specific intention in regard to every nuance of the increasingly complicated grounds of judicial review Consequently, several leading scholars and judges attacked the ultra vires doctrine as a justification of judicial review - often using such an assault as a stepping stone to an attack on the sovereignty of Parliament.

Professor Paul Craig He contended that the flaws inherent in the ultra vires doctrine were so numerous and of such magnitude that the principle should be abandoned altogether, going on to suggest that the true foundations of judicial review lay instead in the common law. The core idea here is that when the courts impose the principles of good administration upon decision-makers, they are applying rules that do not derive from the intent of Parliament but from the common law. This debate over the true foundations of judicial review stimulated by this exchange of views has formed a prominent and lively part of discussion in public law in England over the past six years. Given its similar constitution, public lawyers may have a contribution to make. They should in any case be interested in what has been a fiercely argued and impassioned debate about the background of a crucial component of a just legal system.

THE NEED FOR A CONSTITUTIONAL JUSTIFICATION OF JUDICIAL REVIEW Before we ask ourselves what is the true basis - or justification - for judicial review, we must first consider why it is necessary to find such a justification. After all, the desirability of judicial review as an aspect of the British legal system is beyond doubt. However, it is generally recognised that it is an exceptional remedy. It is premised upon bringing before the unelected judiciary a challenge to a decision made outside of the courtroom; one made by an individual, or a body, that may well derive its power to determine such matters from statute, this being the law as put into place by the elected representatives of the people in Parliament.

The decision-maker himself or herself will be elected, or accountable to an elected representative. There may also be statutory rules or guidelines on how the decision is to be reached that will come into play. We are back at our officious question: where do the courts derive the power to interfere in the making of such decisions? Without an answer, we are unable to explain the merging of the spheres of power that seems to occur when judicial review is sought and brought. Solid constitutional foundations are a very necessary element of the power, force and utility of judicial review. How, consistently with the democratic nature of our constitution and the doctrine of the separation of powers, can a non-elected element of the constitution override the decision of a democratic element?

In the light of the difficulties surrounding ultra vires - set out above — the common law might seem an attractive answer. However the apparent simplicity of such an approach belies the quite real and serious difficulties that arise were ultra vires to be abandoned altogether. First of all, 'the common law' is an exceptionally broad term. Unlike ultra vires, it gives a judge no concrete starting point for her or his consideration of the legality of a decision. Ultra vires, at least, provides that the court examines whether the particular decision is consistent with the powers of the decision-maker - a quite clear objective, albeit sometimes difficult to realise. But the judge is directed to the terms of the relevant statutes and seeks to find there the answer to the question In contrast, there simply is not found in the capacious bosom of the common law answers to precise questions posed by judicial review, e. g. those concerning the level of natural justice to be applied in each particular case. It can be seen that relying on the common law, rather than ultra vires, would provide us with far less coherent and indeed less principled reasoning. But there are even graver consequences.

The Common Law Challenge to Sovereignty And an immediate such consequence would be that the sovereignty of Parliament would be challenged. Consider a situation in which the legislature had the power to disapply the principles of good administration, for example if it were able to order that a decision might be made without heeding the rules of natural justice. This is certainly a realistic scenario in the United Kingdom and we expect that it would be relatively uncontroversial in Pakistan Suppose Parliament were to decide, and make its intent clear

For example, as part of the war against terrorism – that certain immigration decisions could be made without heeding the rules of natural justice, so that there was no obligation, as there would usually be, to disclose to the would be immigrant the source and nature of the immigration officer's doubts about his or her suitability for admission. There would be dismay in many circles over this but there would be little doubt that the legislation would be valid and the judges would loyally uphold the legislation. All this is straightforward if ultra vires is the foundation of judicial review. But the difficulty that the common law theorists face in these circumstances is this: if the decision-maker complies with all the requirements of the statute, express or implied, for the validity of his or her decision, then the court cannot add an additional requirement 'drawn from' the common law without challenging Parliament's power to lay down the requirements for validity - that is, without challenging sovereignty. Such a difficulty does not arise with the ultra vires doctrine because all that is happening is 'the application of the law itself, and the law of Parliament to boot'.

Carrying out Parliament's will is precisely what the court sets out to achieve. In other words, to adopt the common law as the foundation of judicial review is in fact to challenge the sovereignty of Parliament. The logic of this argument is unanswered and indeed is unanswerable for as long as Parliament is sovereign. This is recognised in terms by Trevor Allan - no friend of the ultra vires doctrine in his recent article. It can be seen, that the effect of abandoning ultra vires would be to abandon the need for the courts to respect the legislative intent of Parliament. Such a consequence does not seem to concern some advocates of the common law approach. One reason for this is their constant refrain that the ultra vires doctrine is 'artificial' or as Craig puts it, 'does not accord with reality'. It is argued that in relying upon ultra vires, we are not really applying the will of Parliament at all; therefore it is safe to dispose of the doctrine

ARTIFICIALITY - REAL OR APPARENT? It may be doubted whether this criticism is quite as convincing as it at first appears. Of course, those who make the case for ultra vires readily acknowledge that certain aspects of the doctrine may appear artificial and can take this point on board when making their case. The doctrine is not negated by its perceived artificiality. This is partly because artificiality is not always present. Ultra vires requires that we uphold the intention of Parliament; and this the court can be said to be doing if it applies the doctrine so as to enforce the express provisions of a particular statute. There is nothing artificial about the working of ultra vires in such a case.

The idea of 'artificiality' only becomes relevant when the wording of an Act is not clear, or when conditions are implied into a statute. Even in this kind of case, the matter is not clear-cut. Critics argue that it is straining the ultra vires doctrine for the courts to say that they are acting as Parliament intends them to act in cases where precise provisions or instructions from Parliament are not forthcoming. The difficulty with this line of argument is that it supposes that everything Parliament intends, and indeed stands for, is contained entirely within the express provisions of statute. But, as one of the authors of this article argues elsewhere, even though a particular Act may well lack explicit guidance on how decision-makers are to reach their conclusions, 'it is not unreasonable or implausible to impute to Parliament the intention that decisionmakers should comply with the principles of good administration'

In such a case, it should be evident that the courts are bringing forth a perfectly reasonable, realistic and valid Parliamentary intention — not a manufactured one. It might be argued that even if real, the intention has been derived by 'artificial' means - that is, by drawing inferences, etc. – But this is not entirely supportable, either, as the starting point, and the focus of any such enquiry will always be the statute itself. The speech of Lord Bridge in Lloyd v Mc. Mahon illustrates the point. In well known words he said: The so-called rules of natural justice are not engraved on tablets of stone. . . [W]hat 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. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness

This dictum explains the judicial task in setting the measure of natural justice applicable in any particular circumstances, but without any mention of the common law. True enough the duty of fairness is engaged when the statute empowers a body to make decisions affecting individuals. So sometimes that trigger may be the individual's common law rights. But the common law has no further role to play. The 'character of the decision-making body' - are its decisions determined by policy or through the application of rules of law? – Which must be considered but that is plainly determined by the statute setting it up. Similarly, 'the kind of decision' which is made must be determined by the statute granting to the body the power to make the decision in question

And 'the statutory. . . framework' is self-evidently determined by the statute. Thus the judicial task of laying down a procedure that would achieve fairness is structured by the statute and infused by conclusions drawn from the statute. The creativity of the judiciary should not be underestimated but it is not something that takes place in isolation from the statute. Indeed the role of the statute in this context is as vital as it is inevitable: how, other than by looking to the statute, is the court to know the context in which it must secure fairness? Rather than conjuring an indefensible notion of an intention out of thin air - as the term 'artificial' suggests – the courts instead are able to adopt a structured approach in order to derive Parliament's intention, founded on the basis Parliament has given them - that is, the statute. The intention is being sought, quite rightly and properly, in the place in which it has been manifested.

Practical Problems: Ouster Clauses and Collateral Challenge A typical ouster clause may provide that regulations or decisions made 'in terms of the Act' shall not be challenged in the courts. However, as we have seen, the ultra vires doctrine allows us to imply the grounds of judicial review from the Act. With this is mind, it follows that a decision in breach of natural justice where that is express or to implied from the Act — for example, is not made 'in terms of the Act' - and the ouster clause does not bite, i. e. is ineffective to prevent judicial review. This was what happened in the case of Anisminic Ltd v Foreign Compensation Commission.

When ultra vires is abandoned a decision made in breach of natural justice - which now comes from the common law — will naturally always be made ' in terms of the Act'. And the ouster clause will be effective. This was the view taken in the South African case of Staatspresident v United Democratic Front. So the abandonment of ultra vires means that straightforward ouster clauses would become effective. This amounts to a substantial evisceration of the reach of judicial review and a profound derogation from the principles of the rule of law. It is, of course, not intended by the common law theorists but it is perfectly logical and this logic has been adopted in terms by the highest court at the time in South Africa. It requires a cogent response from those that would abandon ultra vires.

Professor Craig's response is that this is not the unavoidable outcome when judicial review is stripped of its ultra vires roots. He goes on to explain the way in a which a court could rely on 'a common law constitutional principle' in order to prevent the working of the ouster clause; That is by recognising that 'the inherent power of the courts should not readily taken to be wholly excluded from review'. The court could then go on to consider the nature of the alleged error before them; The ouster clause would only be effective if the error was not one challengeable under standard heads of review.

Craig's argument does not stand up to scrutiny. For one thing, we are yet again faced with the parliamentary sovereignty issue: the statute appears to say clearly that the decision should not be challenged. Only the ultra vires doctrine allows us to review the decision without setting up the supposed 'inherent power' of the courts against the will of Parliament. But there is a more specific and fundamental problem underlying Craig's logic. He asserts that no court would necessarily reason as the South African court did in the UDF case, nor indeed as the House of Lords did in Anisminic; therefore neither case aids the proponents of ultra vires. It is true enough that neither case was a foregone conclusion - but then, no case is. So, even if the inherent judicial power to which Craig refers can be shown to exist there is nothing to say the court would use it, or how they would use it

It is not justified for Craig to tell us on the one hand that the court would not be forced into the reasoning of the UDF case, and on the other to state that '. . . a judge would reason as follows. . . ’. He or she might not necessarily reason in the way he argues at all. The outcome would not be certain. Thus, Craig's supposed common law safeguard against ouster clauses moves us no further forward at all. The fact is that this perfectly logical reasoning was accepted in the UDF case and, if ultra vires were abandoned, it could be adopted in other cases. The case of Boddington v British Transport Police illustrates another major problem that would surface were ultra vires to be abandoned. This case established that an individual could defend themselves against a criminal charge brought under a particular bylaw by arguing that the bylaw itself was invalid They were not restricted, as some cases, had suggested that they could only challenge the validity of the bylaw by way of an application for judicial review.

After all, said the courts, judicial review for any one of a number of reasons - delay, denial of leave, insufficient means — might not be possible. If the court were then to insist that the challenge could only made by means of judicial review, it can be seen that a person could be sanctioned for breaching a bylaw that was in fact itself illegal. Hence the acknowledgement of the possibility of this defensive, or collateral, challenge. But if ultra vires disappears, then so too would collateral challenge. This is because ultra vires makes possible such a challenge. Magistrates' courts do not have the power to issue certiorari; they cannot quash an invalid bylaw However, they will not enforce bylaws that are void, because to do so would be to give effect to legal nullities. But a bylaw is void because it has been made ultra vires; an intra vires bylaw would typically be considered merely voidable, i. e. as an existing law that is liable to be set aside.

The magistrates' court cannot it strike the law down or ignore it; is bound to follow it, and collateral challenge would therefore fail. Collateral challenge is thus quite clearly wrapped up in the concept - and practical application - of the ultra vires doctrine.

The common law as a mask for judicial usurpation of power The difficulties that would undoubtedly come to the fore upon the rejection of ultra vires, we should ask ourselves why it is that so many scholars and judges wish to embrace the common law? The answer seems to be that they are less concerned with determining the best way forward for judicial review, and more interested in looking to assert the role of the courts over that of Parliament in the judicial review process. The idea, dealt with above, that ultra vires is deficient because it is artificial forms part of a wider argument that strikes at the heart of parliamentary sovereignty It is premised upon the notion that ultra vires fails to represent reality because the courts do not need and indeed have never needed to defer to the will of Parliament Craig writes: '. . . in historical terms judicial review was not originally founded on the idea of effectuating legislative intent, and. . . this only became a central focus in the nineteenth century'

Professor Philip Joseph has recently echoed this view. This idea of an age old common law right to judicial review may be doubted. If this were so, how are these words of Holt CJ reported in 1700 in R v Glamorganshire Inhabitants to be explained? He said in granting certiorari to bring up an order of the justices making a rate for the repair of Cardiff Bridge: . . this court will examine the proceedings of all jurisdictions erected by Act of Parliament. And if they, under pretence of such Act, proceed to encroach jurisdiction to themselves greater than the Act warrants, this Court will send certiorari to them. . . But even if the courts did have an age-old, inherent right to judicial review, distinct from the power - and will - of Parliament, the problem will not be solved. The difficulty with going back to the time of the Magna Carta, however attractive an ancient right of the judges may seem, is that today's Parliament is based on a very different political system and the cases to which Craig and Joseph refer reflect antiquated notions of Parliament.

Craig's reference to the nineteenth century betrays historical argument by illustrating the very point forgotten by those who point to an age-old judicial right or privilege: the growth of democracy, which began to take shape during the 1800 s as ideas of popular democracy emerged, and as through Parliamentary reform the slow move towards universal suffrage began. Are we to imagine that such developments could have had no impact whatsoever upon the role and power of the courts? Are we supposed to believe that many hundreds of years ago, the courts granted themselves a right that has remained unchanged in its focus and potency despite sweeping changes in the way the country is governed and its people represented? It is of course possible to conceive of situations in which the sovereignty of Parliament is a very bad thing, i. e. where Parliament is not freely elected, and is controlled by undemocratic forces - as was the case in South Africa during the years of apartheid It is much more difficult to level criticism at sovereignty where Parliament is freely elected, and representative of a polity in which democratic values are deeply ingrained.

Whatever the merits of the debate, it is enough for us to realise that the law-makers of Parliament have at least partly been chosen by the people for that role; the judges have not. Parliament speaks with a democratic legitimacy which the judges, being unelected officials, will never have. Misty-eyed rhetoric about the wisdom of the common law in the keeping of the judges is, to put it bluntly, hogwash designed to cast a mask of legitimacy over what is essentially a judicial usurpation of power. Parliament is sovereign, and whilst it remains so, then this is the context in which a justification for judicial review must be found. Parliamentary sovereignty is a fundamental aspect of the constitution – how could the judges by themselves, without reference to the other branches of government- shift the ultimate constitutional power from the hands of the elected representatives into their own hands?

Professor Philip Joseph advances the suggestion that there has been 'the eclipse' of ultra vires, both in his native country and in the United Kingdom. Joseph cites the recent NZ Court of Appeal case of Peters v Davison in the keypin of his argument. He suggests that the key issue for the judges in that case was not the question of whethere had been some jurisdictional error by the decision-maker or tribunal (i. e. , had the decision been made ultra vires)? But whethere had been some material error? The idea being that this could be based upon the wider principle of the rule of law. The assertion that this case signals that ultra vires has finally been put to rest in New Zealand is a perplexing one. Joseph can indeed point to the joint judgment of Richardson P, Henry and Keith JJ, in which reference is made to 'errors of law' rather than ultra vires

Thus the use 'error of law' terminology rather than 'ultra vires' seems understandable. But none of this challenges ultra vires for it has never been part of the ultra vires doctrine that it implies the exclusion of the ancient jurisdiction to challenge for error of law on the face of the record. Moreover, at no point do the judges themselves say that what they are doing is contrary to the ultra vires doctrine. After all, in his separate concurring judgment — from which none of the majority judges dissents — Tipping J states emphatically that: '. . . ultra vires is the essential underpinning of all grounds for judicial review'; it is the 'central pillar' of such cases He furthermore supports the words of Wade and one of the present authors in their Administrative Law to this effect, citing their explanation of the doctrine at length. The joint judgment does not reject ultra vires in terms, and this means that the interpretations of the law offered by Tipping J and the three judges are very much capable of being viewed as complementary rather than contradictory

CONCLUSION In recognition both of the underlying difficulties with ultra vires and the very real problems that would surface should it be abandoned? Both the authors put forward the 'modified ultra vires doctrine'. This sought to reconcile the modern creativity of judicial review with orthodox doctrine about the sovereignty of Parliament. The central idea is that it is reasonable and plausible to assume that where Parliament granted powers to a decision-maker, Parliament intended that those powers should be exercised in accordance with the principles of good administration as developed by the judges through the years. Parliament can, since it is sovereign, provide that the powers should be exercised other than in accordance with the principles of good administration, but it has seldom done so. The modified doctrine has received a certain amount of criticism from some quarters. However, some of the attacks made have been fairly weak ones, to the effect that the ultra vires supporters are 'going back' on their previous arguments, and that they are doing so because they know ultra vires is a shaky, ailing doctrine incapable of being upheld

It is clear that the proponents of the 'modified doctrine', rather than undermining the doctrine, succeed in breathing new life into a concept which had perhaps begun in some areas to look a little archaic; their argument does not undermine the force of ultra vires but shows how it is still relevant and constitutionally vital. It has also be said that the essentially pure concept of ultra vires has been 'adulterated' by the inclusion of the idea that the principles that have evolved in the courtroom have a part to play. But ultra vires and such principles are hardly incompatible - in fact both are necessary in the reality of the courtroom, and it has never been denied that ultra vires is a concept, that has to be applied to real situations, and here the court's own rules come into play, giving the doctrine real scope and flexibility as well as practical utility in the modern world. The modified doctrine recognises both schools of thought, together with the practical reality of what actually happens in judicial review cases, and importantly, ensures that through continued deference to the will of Parliament, via ultra vires, a challenge to sovereignty is averted, and constitutional orthodoxy remains intact.