THE ULTRA VIRES DOCTRINE IN A CONSTITUTIONAL SETTING...

Cambridge Law Journal, 58(1), March 1999, pp. 129–158Printed in Great Britain

THE ULTRA VIRES DOCTRINE IN ACONSTITUTIONAL SETTING:

STILL THE CENTRAL PRINCIPLE OFADMINISTRATIVE LAW

M E*

I. I

F branches of English law have grown so rapidly in scope andsignificance over recent decades as the law of judicial review. Afterthe neglect of administrative law in the early part of the twentiethcentury, the judges have now rediscovered their constitutional duties.The supervisory jurisdiction has been reinvigorated and extended, sothat by the early 1980s “the courts were waiting with refinedinstruments of torture for ministers and departments . . . who tooktheir public law obligations cavalierly”.1 It is perhaps this expansionof judicial review at “breakneck speed”2 which has led to so muchuncertainty concerning its juridical basis. As Sir John Laws hasremarked, “there may be a price to pay for so speedy a development;it carries the risk that principles are built on a foundation with toomuch sand and not enough rock”.3

Although the constitutional foundations of judicial review have,to some extent, been overlooked in the past, such criticism can nolonger be sustained. This matter is now the subject of intense andoften divisive debate amongst public lawyers, both academic andjudicial. The protagonists can be broadly separated into two camps.

In orthodox theory, the principles of good administration whichthe courts apply in order to secure fairness and rationality in publicdecision-making are said to amount to nothing more than judicialenforcement of legislative intention. For reasons which will bediscussed in detail later, this theory holds that considerations ofparliamentary sovereignty dictate that judicial review should lie onthe sole ground that administrative action is ultra vires, or beyond

* Queens’ College, Cambridge. I am grateful to Dr. Christopher Forsyth for his valuable commentson an earlier draft of this paper.

1 Sir Stephen Sedley, “The Sound of Silence: Constitutional Law Without a Constitution” (1994)110 L.Q.R. 270, 283.

2 P. Cane, An Introduction to Administrative Law (Oxford 1996), 3rd ed., describes the growth ofjudicial review in such terms at p. v.

3 “The Ghost in the Machine: Principle in Public Law” [1989] P.L. 27.

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the powers granted by Parliament. Thus the familiar obligationswhich are incumbent on the executive—to observe the rules ofnatural justice; to take all relevant (but no irrelevant) considerationsinto account; to make only reasonable decisions—are all said tospring from unwritten legislative intention. Sir William Wade haslong been the leading proponent of this view. He has expressed it,with characteristic clarity, in the following terms:

The simple proposition that a public authority may not actoutside its powers (ultra vires) might fitly be called the centralprinciple of administrative law. . . . Having no writtenconstitution on which he can fall back, the judge must in everycase be able to demonstrate that he is carrying out the will ofParliament as expressed in the statute conferring the power. Heis on safe ground only where he can show that the offending actis outside the power. The only way in which he can do this, inthe absence of an express provision, is by finding an impliedterm or condition in the Act, violation of which then entails thecondemnation of ultra vires.4

Opponents of this traditional approach argue, for reasons which willbe addressed below, that the values which the courts vindicatethrough judicial review are not, and do not need to be, related tolegislative intention. Rather, it is said, administrative law embodies aseries of principles that are the fruit of judicial creativity and whichare founded in the common law. These ideas were expressed in aninfluential paper by Dawn Oliver in 19875 and have been articulatedmore recently by Sir John Laws who, through a series of lectures andarticles, has become a leading exponent of this theory:

[The principles of judicial review] are, categorically, judicialcreations. They owe neither their existence nor their acceptanceto the will of the legislature. They have nothing to do with theintention of Parliament, save as a fig leaf to cover their trueorigins. We do not need the fig leaf any more.6

In 1996, Christopher Forsyth7 published an important article on thissubject, which has since prompted thoughtful responses fromProfessor Paul Craig8 and Sir John Laws.9 Although Forsyth hasgenerally been interpreted as defending the traditional ultra viresdoctrine, such a view is not wholly accurate. In fact, Forsyth seeks tolay the foundations of a new approach to the justification of judicial

4 H.W.R. Wade and C.F. Forsyth, Administrative Law (Oxford 1994), 7th ed., pp. 41 and 44.5 “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] P.L. 543.6 Sir John Laws, “Law and Democracy” [1995] P.L. 72, 79.7 “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and

Judicial Review” [1996] C.L.J. 122.8 “Ultra Vires and the Foundations of Judicial Review” [1998] C.L.J. 63.9 “Illegality: The Problem of Jurisdiction” in M. Supperstone and J. Goudie (eds.), Judicial Review

(London 1997), 2nd ed.

C.L.J. 131The Ultra Vires Doctrine

review which embraces the best features of the two contrastingmodels described above.

It is the purpose of this paper to build on that approach bydemonstrating that any attempt to choose between legislativeintention and judicial endeavour as the real basis of the supervisoryjurisdiction is ultimately futile. In reality, both the will of Parliamentand the creativity of the judges have important roles to play. However,the true foundations of judicial review can be fully appreciated onlywhen this branch of public law is located within its broaderconstitutional setting.

II. T I J J R

In recent decades, the role of judicial review has steadily expanded.As the comparative lawyer Mauro Cappelletti observes, the rise ofthe administrative state has led to the courts in many jurisdictions“becoming themselves the ‘third giant’ to control the mastodonlegislator and the leviathan administrator”.10 The growth of judicialreview of executive action in English law is certainly consistent withthis trend.

It is, perhaps, this increasing prominence of judicial review whichhas inspired commentators to search for constitutional foundationsof the supervisory jurisdiction which have deeper roots thanthose which the ultra vires doctrine acknowledges. Whereas themethodology of ultra vires confines the judicial function to theimplementation of Parliament’s will, the more modern approachrecognises the creative role which the judges undoubtedly play in thedevelopment of legal limits on public power. In this way, it has beenpossible to relate judicial review to broader constitutional principlessuch as the rule of law and the separation of powers which, manywriters have cogently argued, furnish a more convincing—and moreconstitutionally satisfying—basis for judicial review.

This question of how judicial review is to be justified must bereturned to later. First, it is necessary to evaluate the premise onwhich that question is founded, by asking whether it is necessary tojustify judicial review at all. That premise has been challenged by SirJohn Laws. In an essay which was first published in 1991, he set outthe following view of the constitutional position of the courts:

[F]or every body other than the courts, legal power dependsupon an imprimatur from an external source; but this is not trueof the High Court and its appellate hierarchy. In point of theory,there exists no higher order of law for them. It follows that any

10 M. Cappelletti, The Judicial Process in Comparative Perspective (Oxford 1989), p. 19.


analysis of their jurisdiction, if it is not to be confined to thesimplest statement that the court reviews what it chooses toreview, must consist in a description of the nature and extent ofjudicial review in practice. . . . [T]he ultimate freedom ofmovement which on my analysis the judges enjoy needs to beunderstood in order to appreciate that the court, if it decides ineffect to push out the boundaries of judicial review in theparticular case, is not guilty of any constitutional solecism.11

Similarly, Laws has written that:“Jurisdiction”, like “reasonableness”, is a protean word. Itseasiest application is the case where a body has express butlimited powers conferred on it by another body: so if it actsoutside those powers, it exceeds its jurisdiction. But the superiorcourts in England are not constituted on any such basis. Theyhave, in the last analysis, the power they say they have.12

The essence of this argument is that the constitution prescribes nolimits to judicial power, and that the only true limits on the powersof the other branches of government are those which the courtschoose to recognise. This is indeed a “trailer for a constitutionaltheory of judicial supremacism”13 which demands the closestinspection.

Laws’s approach is inconsistent with any legal duty of judicialfidelity to the legislative will of Parliament. Consequently it sweepsaway the constitutional theory of sovereignty on which the ultra viresdoctrine is based. However, Laws’s thesis goes further still. Hisconceptualisation of judicial power would, if accepted, render otioseany attempt to justify judicial review. If the judges have “the powerthey say they have”,14 then Laws is correct to argue that any analysisof the courts’ public law jurisdiction15 must either “be confined tothe simplest statement that the court reviews what it chooses toreview” or “consist in a description of the nature and extent ofjudicial review in practice”16 since, in the absence of fixedconstitutional constraints on the courts, there exists no yardstick bywhich to assess the constitutional legitimacy of their jurisprudence.Thus Laws’s thesis questions the relevance of both the orthodoxjustification for judicial review and the more modern theories, basedon the rule of law and the separation of powers, which have been putforward.17

11 “Illegality: The Problem of Jurisdiction” in M. Supperstone and J. Goudie (eds.), Judicial Review(London 1991), 1st ed., at pp. 69–70.

12 Op. cit. n. 9, at p. 4.1 and op. cit. n. 11, at p. 51.13 Sir Stephen Sedley [1993] P.L. 543, 544.14 Laws, op. cit. n. 9, at p. 4.1.15 And, for that matter, any other jurisdiction.16 Laws, op. cit. n. 11, at p. 69.17 Within the framework which Laws sets out, constitutional principles such as the rule of law and

the separation of powers could still be used to guide the courts in their control of public power:see Laws’s treatment of the rule of law, op. cit. n. 9, at pp. 4.30–4.35. Crucially, however, such


However, this view of the British constitution must be challenged.Laws argues that the courts are in the unique and privileged positionof possessing legally unlimited power. The basis of this propositionis unclear. Although it is true that, at root, all power is factual innature, it must be recognised that developed societies employ power-allocation methodologies which are based in law and which regulatethe distribution of power to the various branches of government.These processes can be observed most transparently in countrieswhich have adopted written constitutions. For instance, the first threearticles of the United States Constitution set out, in clear terms, themanner in which power is allotted to the three branches ofgovernment. The only alternative to such constitutional power-allocation is the approach which obtains in primitive andundemocratic societies, where governmental power is exercised bythose who are best able to arrogate it to themselves. If Britain is notto be likened to such societies, then it must be recognised that it isthe constitution—its unwritten character notwithstanding—whichassigns and, where necessary, limits the powers of the differentbranches of government.

This conclusion has important implications for the conception ofthe judicial function which Laws propounds. The power of the courtsis not unlimited. They do not have “the power they say they have”.In truth, the courts—like every other branch of government18—havethe power which the constitutional order says they have.19 Theimplications of this for the courts have been outlined by Lord Woolf,who remarked that, “Our parliamentary democracy is based on therule of law. . . . [T]he courts derive their authority from the rule oflaw . . . and can not act in manner which involves its repudiation.”20

More specifically, this view has important consequences for judicialreview. As Lord Scarman observed, “Judicial review is a great weaponin the hands of the judges: but the judges must observe theconstitutional limits set by our parliamentary system upon theirexercise of this beneficent power.”21

concepts would be fulfilling an explanatory rather than a justificatory function, since justificationwould be unnecessary according to Laws’s constitutional model.

18 This argument is not inconsistent with the doctrine of legislative supremacy. There is no reasonwhy the constitution should not embody a consensus which ascribes to Parliament legislativecompetence over all matters.

19 In the words of H.R. Hahlo and E. Kahn, The South African Legal System and its Background(Cape Town 1968), p. 39, “The law should be [the judges’] only master.” This comment formedpart of an argument that judges should be independent and fearless in the face of government;however, it is also relevant to the present contention that the courts must recognise legal and, inparticular, constitutional constraints. The constitution imposes on the judges imperatives of bothactivism and self-restraint.

20 “Droit Public—English Style” [1995] P.L. 57, 68.21 Nottinghamshire County Council v. Secretary of State for the Environment [1986] A.C. 240,

250–251.


Thus, in approaching the power which the courts exercise overthe executive by way of judicial review, it is crucial to be aware ofthe sensitive power-allocation issues which arise in this area. Thejudges must be alert to the importance of ensuring that they do nottransgress the bounds of their allotted constitutional province, as thefollowing dictum of Lord Mustill emphasises:

As the judges constantly remark, it is not they who are appointedto administer the country. Absent a written constitution muchsensitivity is required of the parliamentarian, administrator andjudge if the delicate balance of the unwritten rules [of judicialreview] evolved . . . in recent years is not to be disturbed, andall of the recent advances undone. . . . [T]he boundaries [betweenthe proper functions of the different branches of government]remain; they are of crucial significance in our private and publiclives; and the courts should I believe make sure that they are notoverstepped.22

It is, therefore, broadly accepted that any claim of judicial powermust be scrutinised and evaluated against the delimitation ofgovernmental functions prescribed by the constitutional order.Nowhere is this more important than in relation to judicial reviewsince, in exercising their supervisory jurisdiction, the judges riskusurping both legislative functions (because it has traditionally beenParliament which promotes responsible government) and executivefunctions (since if review is too intensive, the courts, in substance,become the primary decision-makers). It should be emphasised thatit is no part of the present argument that the courts have in facttransgressed the boundaries of their proper constitutional province.Rather, it is the existence of those boundaries, and the imperative ofjustifying judicial review by reference thereto, which is propounded.

Having established the importance of justifying judicial review, itis necessary to consider how this may best be achieved.

III. T R L I J R

The modern tendency within public law scholarship is to challengethe received wisdom that the grounds of judicial review are related tothe intention of Parliament.23 Recently, this argument has been

22 R. v. Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 A.C. 513,567–568. As the Lord Chancellor, Lord Irvine of Lairg, pointed out in a lecture given to theHistorical Society of the United States Supreme Court (May 1998, Washington D.C.), it is anawareness of these sensitive power-allocation issues which has deterred the British courts fromestablishing a substantive, rights-based review jurisdiction. The Human Rights Act will providethe courts with the constitutional warrant which is necessary to confer democratic legitimacy onsuch a development.

23 See, for example, Oliver, op. cit. n. 5, especially pp. 543–545.


articulated with particular force by Paul Craig, who contends thatthe principles of good administration which the courts enforce aresimply part of the common law.24 There are many attractions in suchan approach. The implausibility of the direct connection betweenlegislative intention (or, in reality, legislative silence) and the groundsof review, which the ultra vires doctrine postulates, is avoided.Moreover, the common law potentially provides a foundation for alltypes of judicial review, whether or not the source of the powerscrutinised is statutory.

However, Christopher Forsyth has argued that in spite of theseattractions of a supervisory jurisdiction resting on common lawfoundations, constitutional logic dictates that judicial review ofstatutory power must ultimately be related to the sovereign will ofParliament. The following passage captures the essence of Forsyth’sthesis:

[W]hat an all-powerful Parliament does not prohibit, it mustauthorise either expressly or impliedly. Likewise if Parliamentgrants a power to a minister, that minister either acts withinthose powers or outside those powers. There is no grey areabetween authorisation and prohibition or between empowermentand the denial of power. Thus, if the making of . . . vagueregulations is within the powers granted by a sovereignParliament, on what basis may the courts challenge Parliament’swill and hold that the regulations are invalid? If Parliament hasauthorised vague regulations, those regulations cannot bechallenged without challenging Parliament’s authority to author-ise such regulations. . . . The upshot of this is that . . . toabandon ultra vires is to challenge the supremacy of Parliament.“Weak” critics [who purport to criticise only the ultra viresdoctrine, and not the sovereignty of Parliament], whether theyintend it or not, are transmuted into “strong” critics [whochallenge parliamentary sovereignty].25

Thus, for Forsyth, when Parliament grants executive power, it iseither a condition of that grant that the decision-maker must actfairly, reasonably and consistently with all the other requirements ofgood administration, or it is not. According to this view, logicdictates that any requirements of fairness and rationality whichobtain must be internal to the grant itself. If Parliament chooses notto attach such a requirement to a grant of administrative power, suchthat, in effect, executive power is created free from any obligation toact fairly and rationally, it would be improper for a court to seek toimpose such obligations, since to do so would be to set up thecommon law against the sovereign will of Parliament: the common

24 Op. cit. n. 8. See also Woolf, op. cit. n. 20 and Laws, op. cit. nn. 6, 9 and 11.25 Forsyth, op. cit. n. 7, at pp. 133–134.


law prohibition on unfair or unreasonable decisions would cut acrossthe broader statutory power to make such decisions.26

Both Laws27 and Craig28 disagree fundamentally with thisreasoning. It is necessary to set out Laws’s critique in some detail:

I think . . . [Forsyth’s] reasoning as to the “analyticalconsequences” of the abandonment of ultra vires is faulty. I donot accept that “what an all powerful Parliament does notprohibit, it must authorise either expressly or impliedly”. . . .The absence of a legislative prohibition does not entail theexistence of a legislative permission . . . Forsyth’s argument isvitiated by an implicit mistake: the mistake of assuming thatbecause Parliament can authorise or prohibit anything, allauthorities and prohibitions must come from Parliament. It is anon sequitur. It neglects what the logicians call the “undistributedmiddle”—an obscure, but useful, academic expression, meaningthat although X and Y may be opposites, like praise and blame,they do not cover the whole field; there might be Z, whichinvolves neither. Thus Forsyth mistakes the nature of legislativesupremacy, which is trumps, not all four suits; specific, not wall-to-wall. How could it be otherwise? A legislature makes andunmakes laws when it thinks it needs to; the fact that in Englandthe common law allows it to make or unmake any law it likesconfers upon it no metaphysic of universality.29

Laws’s central argument is that the common law can constitute asatisfactory legal basis for the supervisory jurisdiction, and that thereis no need to relate judicial review to the intention of Parliament. Hearrives at this conclusion by holding that the analytical reasoning ofForsyth—which was summarised above, and which provides thatjudicial review must be related to parliamentary intention—is faulty.This disagreement lies at the very heart of the debate concerning thetheoretical underpinnings of judicial review, and it is the issues whichit raises that must now be addressed.

26 I have argued elsewhere that this analysis holds true even if the traditional conception of fullparliamentary supremacy is rejected. See M.C. Elliott, “The Demise of ParliamentarySovereignty? The Implications for Justifying Judicial Review” (1999) 115 L.Q.R. 119 and below,for a summary of this argument.

27 Op. cit. n. 9, at pp. 4.13–4.19.28 Op. cit. n. 8, at pp. 73–75. However, notwithstanding his expressed dissatisfaction with Forsyth’s

approach, Craig—somewhat paradoxically—appears to embrace the logic of Forsyth’s point.Craig argues that if the common law is adopted as the legal basis of review, “there would be acommon law presumption that the common law proscription against the making of vague orunreasonable regulations could be operative, and hence such regulations would be prohibited,unless there was some very clear indication from Parliament to the contrary”. The differencebetween this approach and that of Forsyth is semantic only. The effect of Craig’s common lawpresumption that Parliament does not prohibit common law rules of good administrationacknowledges that legislative intention is relevant: Craig must be understood as conceding that,ultimately, judicial review is constitutionally justified only to the extent that Parliament sopermits. Thus, it is difficult to see how Craig’s “common law presumption” differs in substancefrom Forsyth’s notion of the “imprimatur” which, he argues, Parliament grants to the courts toallow them to develop the law of judicial review (on which see Forsyth, op. cit. n. 7, atpp. 134–136).

29 Op. cit. n. 9, at pp. 4.17–4.18.


A. The nature and consequences of legislative supremacy

It has already been seen that, for Forsyth, the proposition that “whatan all powerful Parliament does not prohibit, it must authorise eitherexpressly or impliedly” dictates the logical necessity of relatingjudicial review to legislative intention. It is this proposition whichLaws seeks to challenge. He ascribes to Forsyth the view that“because Parliament can authorise or prohibit anything, all authoritiesand prohibitions must come from Parliament”.30 Thus, according toLaws, Forsyth presents a “wall-to-wall” view of parliamentarysovereignty. He concludes that Forsyth misunderstands the nature oflegislative supremacy and that his argument is consequentlyundermined.

The conception of sovereignty which Laws ascribes to Forsythwould, indeed, be open to serious doubt. For instance, if allprohibitions really had to come from Parliament, then it would noteven be constitutionally possible for the courts to impose such classiccommon law requirements as the duty to take care to avoid harmingone’s neighbour.31 Similarly, the development of the criminal law bythe courts32 would not be permissible. Such a view of sovereigntywould clearly be inaccurate.

However, in truth, the consequences of sovereignty which Forsythidentifies are much more modest. By stating that “what an all-powerful Parliament does not prohibit, it must authorise eitherexpressly or impliedly”,33 Forsyth is simply asserting that onceParliament has created a power, the limits which the courts imposeon that power must logically either coincide with or cut across thescope of the power which Parliament actually conferred. This isapparent from Forsyth’s statement that “if Parliament grants a powerto a minister, that minister either acts within those powers or outsidethose powers. There is no grey area between authorisation andprohibition or between empowerment and the denial of power.”34

An analogy may be drawn with the effect of European Unionlegislation on the competence of national legislatures. Once the

30 Ibid.31 This pre-eminent common law duty was first articulated in its general form (as distinct from the

earlier context-specific duties in negligence) by Lord Atkin in Donoghue v. Stevenson [1932] A.C.562. His Lordship did not, of course, seek to justify this general private law prohibition oncareless conduct by reference to legislative intention, and it would be unthinkable for anyone toquestion the legitimacy of the modern law of negligence on this ground. Naturally, if Parliamentenacted legislation dealing with the general duty of care owed to one’s neighbours, it wouldnecessarily follow that, as regards the common law rule on this subject, Parliament would eitherhave repealed it (expressly or impliedly) or ordained (expressly or impliedly) that the commonlaw rule should continue. In the absence of such legislation, however, the courts are clearly freeto develop the law in this area in accordance with traditional common law method.

32 For a notable example, see R. v. R. (Rape: Marital Exemption) [1992] 1 A.C. 599.33 Forsyth, op. cit. n. 7, at p. 133.34 Ibid.


Community institutions have adopted a regulation in relation to aparticular matter, it is no longer open to member states to legislateon the same topic. The position has been expressed thus: “Under the‘classic’ preemption doctrine, once the Community legislates in afield, it occupies that field, thereby precluding Member State action.The Community has assumed exclusive competence in the field.”35

Consequently, the European Court of Justice has held that “therecan be no question . . . that the States may . . . take measures thepurpose of which is to amend [a regulation’s] scope or to add to itsprovisions. In so far as the Member States have conferred on theCommunity legislative powers . . . they no longer have the power toissue independent provisions in [that] field.”36

Thus, once the Community has enacted legislation in the form ofa regulation (which is, of course, a supreme form of law in allmember states), it is not open to national legislatures to interfere inthat field. No-one would suggest that this means that the Communitylegislature enjoys “wall-to-wall” competence in the sense that “allauthorities and prohibitions” must come from that legislature. Onthe contrary, in the majority of cases it is open to member states toenact their own legislation until such time as the Communitylegislature “occupies the field”.

This is precisely the approach which Forsyth envisages as regardsthe sovereignty of the United Kingdom Parliament. Thus, in theabsence of a statutory framework, it is for the courts—by imposingcommon law requirements of rationality and fairness—to regulate theuse of de facto public power. It has been argued that the courts dothis through their long-established jurisdiction to control monopolypower.37 However, once de facto public power is replaced withstatutory power, regulated by a statutory framework, any limits whichthe courts subsequently impose on the use of such power throughthe judicial review process must, in orthodox theory, relate to thescope of the power which Parliament granted. Once Parliament has“occupied the field”, it is improper for the courts to use the commonlaw (which is inferior to parliamentary law) to impose limits on thepower concerned different from those limits which inhere in the grantof power itself—just as national legislatures are not permitted toinvoke domestic law (which is inferior to Community law) to modifythe scope of regulations adopted by the Community legislature.35 S. Weatherill, “Beyond Preemption? Shared Competence and Constitutional Change in the

European Community” in D. O’Keefe and P.M. Twomey (eds.), Legal Issues of the MaastrichtTreaty (Chichester 1994), p. 16.

36 Case 74/69, Hauptzollamt Bremen v. Krohn [1970] E.C.R. 451, 459. See also Case 40/69,Hauptzollamt Hamburg-Oberelbe v. Firma Paul G. Bollman [1970] E.C.R. 69, 79.

37 There is broad agreement on this point. See Forsyth, op. cit. n. 7, at pp. 124–127; Craig,Administrative Law (London 1994), 3rd ed., pp. 222–225; Laws, “Public Law and EmploymentLaw: Abuse of Power” [1997] P.L. 455.


Neither of these propositions ascribes a “wall-to-wall” sovereigntyto the legislature concerned, in the sense that “all authorities andprohibitions must come from” that legislature; in reality, the positionis more subtle. Properly understood, Forsyth’s approach to statutorydiscretionary power simply involves the notion that once Parliamenthas occupied the field by creating an administrative competence, nolegitimate opportunity exists for the common law to determine thescope of that power since, logically, the scope of a power created byParliament can only be determined by reference to the terms of theparliamentary grant itself.38

B. The argument of logic

As well as arguing that Forsyth’s central point—that “what an allpower Parliament does not prohibit, it must permit expressly orimpliedly”—is based on a misconception of sovereignty, Lawscontends, more broadly, that it is simply illogical. He submits thatForsyth’s approach “neglects what the logicians call the ‘undistributedmiddle’—an obscure, but useful, academic expression, meaning thatalthough X and Y may be opposites, like praise and blame, theydo not cover the whole field; there might be Z, which involvesneither”.39

It is noteworthy that this argument is fundamentally inconsistentwith some of Laws’s earlier work. In a lecture delivered in 1994, heremarked that no government can “be neutral about free speech. If itis not to be denied, it must be permitted; there is no room for whatthe logicians would call an undistributed middle.”40 By way ofillustration Laws cited the biblical passage, “He that is not with meis against me.”41 It is difficult to see how these comments can bereconciled with Laws’s more recent attempt to undermine Forsyth’sanalysis, which is based on precisely the same logic as that whichunderpinned Laws’s comments on free speech.

In spite of this inconsistency, Laws’s most recent argument is thatthere does exist an “undistributed middle”. Thus he contends that,when Parliament grants discretionary power, the grant itself is notexhaustive of the conditions which apply to the exercise of the power.While some limits may be related to legislative intention (such asthose appearing expressly in the enabling provision), as regards other

38 Of course, background common law values are relevant to the interpretation of legislation and,therefore, to the identification of any limits which apply to statutory power. However, for thereasons discussed, the common law cannot independently delimit the scope of statutory power.The nature of the interpretive process and the relevance of the common law in this regard arediscussed further below.

39 Op. cit. n. 9, at p. 4.18.40 Op. cit. n. 6, at p. 84 (original emphasis).41 St. Matthew’s Gospel, Ch. 12, v. 30, quoted by Laws, ibid., at n. 32.


limitations (for instance, the rules of natural justice) it is assumedthat Parliament possesses no intention whatsoever.42 It is, so theargument runs, this “undistributed middle” which creates theopportunity for the common law to intervene and supply the duty offairness. This, it is said, occurs without any constitutional improprietybecause the common law is not being set up against legislativeintention; rather, it is filling a gap where no intention exists.

Prima facie this is a persuasive argument against the intention-based model. It appears to clear the way for a common law approachwhich avoids the problems usually associated with the methodologyof ultra vires.43 Ultimately, however, the common law model does notwithstand analysis, as the following discussion seeks to demonstrate.

C. Alternative conceptions of the relevance oflegislative intention to judicial review

The disagreement between proponents of the intention-based andcommon law models stems from the question of what role, if any,should be ascribed to parliamentary intention vis-a-vis the groundsof judicial review. It is submitted that the entire range of possibleviews on this subject can be expressed in a series of five competingpropositions. It will be argued that all but one of these propositionsmust be rejected.

The first possibility is that, when Parliament confers discretionarypower, it actually intends that there should be no implied limits onthat power. On this approach, judicial enforcement of common lawrequirements of good administration would be constitutionallyimproper because it would infringe the doctrine of parliamentarysovereignty. The only limits which could legitimately be enforcedwould be those mentioned explicitly in the enabling provision. Anyadditional common law limits would cut across the power whichParliament had intended should be fettered only by those limits setout in terms in the empowering provision.

However, it could not reasonably be assumed, in the absence ofexpress contrary enactment, that Parliament would wish to createadministrative power free from any duties to exercise it fairly,rationally, in conformity with the purpose of the legislative schemeand according to the other general principles which usually limit

42 This attempt to divide the grounds of review into two categories—one based on legislativeintention, the other resting on different foundations—is reminiscent of the analytical approachadopted by the South African Appellate Division in Staatspresident v. United Democratic Front1988 (4) S.A. 830. See E. Mureinik [1988] Annual Survey of South African Law 34, 63–64 forcriticism.

43 These problems, some of which have been mentioned already, are considered in greater detail insection IV below, where it is argued that the shortcomings of the traditional ultra vires doctrineare overcome once it is placed in its proper constitutional setting.


executive discretion. For this reason, this first view of the role oflegislative intention must be rejected because it involves attributing toParliament an absurd intention.

Secondly, it may be that, when Parliament creates discretionarypower, it specifically intends every detail and nuance of the principlesof good administration which the courts apply. According to thisview there exists a direct relationship between legislative intentionand the grounds of review. However, this approach is at least asabsurd as the first. It is simply unrealistic to suggest that Parliamentpossesses specific intention as regards the detailed requirements ofgood administration, as critics of the ultra vires doctrine such asCraig point out:

[T]he ultra vires doctrine . . . does not accord with reality . . .The orthodox approach has been to legitimate [the principles ofgood administration] by reference to Parliamentary intent . . .[However,] the legislation which is in issue in a particular casewill often not provide any detailed guide to the courts as to theapplication of these controls on discretion . . . This is particularlyso in relation to legislation which is framed in broad, opentextured terms. The court will of necessity have to make its ownconsidered judgment on such matters.44

Indeed, even those, such as Forsyth, who argue in favour of somerole for legislative intention reject the existence of any directrelationship between the grounds of review and the will of Parliament:

It cannot be plausibly asserted that the implied intent of thelegislature provides any significant guidance to the reach of therules of natural justice or the fine distinctions to be drawnbetween decisions that are unreasonable but not irrational andthe like.45

Thus this second view of the role of legislative intention must also bediscarded.

The third possibility is that Parliament may have no choice butto grant discretionary power subject to the condition that it must beexercised in accordance with the rules of good administration. Onthis view legislative intention would be beside the point. Equallythere would be no need for common law principles of goodadministration. The grounds of review would derive straightforwardlyfrom the limited nature of the grant of power which Parliamentwould be capable of making.

This approach presupposes an attenuated conception of parliamen-tary sovereignty. It is traditionally held that Parliament can enact any

44 Op. cit. n. 8, at p. 67.45 Op. cit. n. 7, at p. 134.


legislation it chooses. Therefore, in orthodox theory, Parliament canalways elect whether to grant discretionary power subject to or freefrom the obligation to abide by the principles of good administration.However, although this received view of the sovereignty of Parliamenthas been questioned,46 I have argued elsewhere that the recognitionof limits on parliamentary competence does not necessarily impacton the basis of judicial review.47 This third approach could onlyoperate if such significant inroads were made into legislativesupremacy as to render Parliament incapable of modifying or, whereappropriate, suspending the operation of the principles of goodadministration (presumably on the basis that the procedural rights ofindividuals are so important that they should be placed beyond thepossibility of legislative interference). However, none of the leadingcommentators posits the erosion of parliamentary sovereignty onsuch a grand scale. Indeed, given that the substantive rights whichwill be protected under the Human Rights Act 1998 are not to beaccorded this fundamental status, there is certainly no case for suchtreatment of the procedural values currently vindicated by judicialreview. Thus, as Laws recognises, it is still the case that “Parliamentmay at any stage legislate so as to change, curtail, or qualify the . . .doctrines of rationality and the rest” which are enforced throughjudicial review.48

So long as this position continues to subsist, it will not bepossible to justify review by reference to the limits of Parliament’slegislative capacity. Provided that Parliament retains the choicewhether to create discretionary power subject to or free from therequirements of good administration, the role of legislative intentionmust be grappled with. The attempts of the first two propositions todeal with this complex issue have been rejected. It is now necessaryto consider two further, and more subtle, approaches to this question.

The fourth model holds that when Parliament confers power onan administrative agency, it must follow in logic that it either grantsor withholds the authority to act unfairly and unreasonably. It is thisprinciple which lies at the core of Forsyth’s reasoning. However, it is,prima facie, difficult to appreciate the nature of the relationshipbetween this legislative intention and the complex rules of goodadministration which the courts enforce. In order to resolve thisdifficulty, it is necessary to have recourse to the constitutional setting

46 See, inter alios, Sir Robin Cook, “Fundamentals” [1988] N.Z.L.R. 158; Woolf, op. cit. n. 20;Laws, op. cit. nn. 6, 9 and 11; Sir Stephen Sedley, “Human Rights: A Twenty-First CenturyAgenda” [1995] P.L. 386; T.R.S. Allan, “The Limits of Parliamentary Sovereignty” [1985] P.L.614 and “Parliamentary Sovereignty: Law, Politics, and Revolution” (1997) 113 L.Q.R. 443.

47 See Elliott, op. cit. n. 26.48 Op. cit. n. 9, at p. 4.18.


within which legislation is enacted by Parliament and interpreted bythe courts.

The rule of law, which is a fundamental of the British constitution,clearly favours the exercise of public power in a manner that is fairand rational. It is entirely reasonable to assume that, in the absenceof clear contrary enactment, Parliament intends to legislate inconformity with the rule of law. As Lord Steyn remarked in a recentdecision of the House of Lords, “Parliament does not legislate in avacuum. Parliament legislates for a European liberal democracyfounded on the principles and traditions of the common law. Andthe courts may approach legislation on this initial assumption”.49

Thus, Parliament, intending to legislate in conformity with therule of law, is taken only to grant such administrative power as isconsistent with the requirements of that constitutional principle.50 Itis therefore taken to withhold from decision-makers the power to actunfairly and unreasonably, while recognising that the detailedrequirements of fairness and rationality can most appropriately bedetermined incrementally by the courts through the forensic process.Hence, Parliament grants to the judges a margin of freedom—or, asForsyth puts it, an “imprimatur”51—to set the precise limits ofadministrative power. It is the simple—and wholly plausible—assumption that Parliament intends to legislate consistently with therule of law which bridges the apparent gulf between legislative silenceand the developed body of administrative law which today regulatesthe use of executive discretion.

Consequently there is a relationship between parliamentaryintention and the grounds of review. However, whereas the traditionalultra vires doctrine conceptualises the relationship as direct in nature,the present approach maintains that the relationship exists in indirectform. While the details of the principles of review are not attributedto parliamentary intention, the judicially-created rules of goodadministration should nevertheless be viewed as having been madepursuant to a constitutional warrant granted by Parliament.

This proposition involves no conceptual novelty, since Parliamentoften delegates interpretive functions to the courts. Sometimes this

49 R. v. Secretary of State for the Home Department, ex p. Pierson [1998] A.C. 539, 587. Similarly,at pp. 573–574, Lord Browne-Wilkinson observed that, “Parliament does not legislate in avacuum: statutes are drafted on the basis that the ordinary rules and principles of the commonlaw will apply to the express statutory provisions. . . . Where wide powers of decision-makingare conferred by statute, it is presumed that Parliament implicitly requires the decision to bemade in accordance with the rules of natural justice.” See also Lord Steyn, “Incorporation andDevolution—A Few Reflections on the Changing Scene” [1998] European Human Rights LawReview 153, 154–155.

50 See R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531, 560,per Lord Mustill: “where an Act of Parliament confers an administrative power there is apresumption that it will be exercised in a manner which is fair in all the circumstances”.

51 Op. cit. n. 7, at p. 135.


occurs explicitly. For instance, the Occupiers’ Liability Act 1957requires an “occupier” of premises to take reasonable care for thesafety of his visitors.52 The sphere of operation of the legislationturns, inter alia, on the meaning of the term “occupier”. The Actstates that, for the purposes of the legislation, the term is to beaccorded the same meaning as that which it bears at common law.53

Thus, recognising that the notion of occupation is complex,Parliament has explicitly delegated to the courts the task ofdetermining the precise meaning of the concept.

It is more common for Parliament implicitly to assign this typeof function to the judiciary. For example, a great deal of protectivelegislation extends only to individuals who are parties to a particularclass of legal relationship. Hence tenants acquire many more statutoryrights than mere licensees,54 and employees benefit from a much moregenerous regime of employment protection than independentcontractors.55 Yet the protective legislation which confers such benefitson tenants and employees, while withholding them from licensees andindependent contractors, does not define those types of relationship.As with “occupation”, so with “tenancy” and “employment”:Parliament, recognising the complexity of such concepts, realises thatit is desirable to leave to the courts the task of determining theirexact content.

No-one would question the existence of a relationship betweenthe intention of Parliament and the courts’ jurisprudence on themeaning of terms such as “occupier”, “tenant” and “employee”. Thecourts are, quite clearly, determining the reach of the protectivelegislation pursuant to an explicit or implicit legislative warrant.There is no conceptual distinction between the courts’ activities inthese private law fields and their public law jurisprudence on theambit of discretionary power created by Parliament. Since it is notreasonable to assume that Parliament intends to confer unlimiteddiscretionary power, and impossible to maintain that legislativeintention predetermines the exact limits on such power, the onlyreasonable assumption is that Parliament has delegated to the courtsthe task of determining the precise scope of executive discretion. Therelationship between legislative intention and the grounds of review

52 See s. 2(1).53 See s. 1(2). Similarly, “visitor” is defined as a composite term embracing the common law

notions of “invitee” and “licensee”. The same approach is adopted by the Occupiers’ LiabilityAct 1984, which regulates the liability of the occupier to persons other than his visitors.

54 For example, tenants (but not licensees) enjoy protection under the Rent Act 1977 and benefitfrom the statutory schemes regulating assured tenancies (under the Housing Act 1988) andbusiness tenancies (under the Landlord and Tenant Act 1954).

55 Thus, under the Employment Rights Act 1996, only employees are capable of qualifying forsuch benefits as the rights not to be unfairly dismissed, to receive a redundancy payment and tobe permitted to return to work after taking maternity leave.


is directly analogous to the relationship between parliamentaryintention and the meaning attributed to terms such as “employee”.No-one would maintain that Parliament intends the nuances of thecomplex definition of that term which the courts have, in the besttraditions of the common law, developed incrementally over manyyears; but nor would they deny the existence of a relationship betweenlegislative intention and the courts’ jurisprudence on the point. Bythe same token it cannot realistically be maintained that Parliamentintends the precise details of the limits which the courts impose ondiscretionary power. However, as the private law analogiesdemonstrate, this does not mean that there exists no relationshipbetween the legislature’s intention and the courts’ jurisprudence. Ineach case the relationship exists, but in an indirect form.

Hence, the ultra vires doctrine, once placed in its properconstitutional setting by acknowledging the important contributionof judicial creativity within an interpretive framework based on therule of law, provides a convincing account of the theoretical basis ofthe supervisory jurisdiction. It reconciles judicial review with thedoctrine of legislative supremacy, while eschewing the implausible,direct relationship between parliamentary intention and the groundsof review which the traditional approach posits.

The fifth, and final, conceptualisation of the relevance of legislativeintention to judicial review is articulated by Sir John Laws.56 Heargues that there is actually no relationship at all betweenparliamentary intention and the grounds of review. Rather, it is forthe common law to supply the principles of good administration,Parliament having desisted from occupying the logician’s “undistribu-ted middle”. The logical basis of this model—which directlychallenges the approach favoured by Forsyth—has already beenquestioned. However, Laws’s methodology must also be doubted onanother ground.

It is necessarily implicit in this fifth model that Parliament iswholly neutral about the extent of the administrative power which itgrants and the manner in which such power is exercised: Parliamentis to be taken to have no opinion on the matter, neither prescribingnor proscribing limits to the executive power which it creates. Forthis reason, it is said, the common law can, and does, supply thislegislative omission without constitutional impropriety: there is norisk of the common law being set up against legislative intention,because there exists no intention capable of contradiction.

The choice between the fourth and fifth models is therefore stark.The former attributes to Parliament a reasonable, plausible

56 Craig makes a similar argument.


and straightforward intention—that the rule of law should beupheld—while leaving it to the good sense and experience of thecourts to determine precisely how this outcome can best be secured.In sharp contrast, the fifth model necessarily imputes to Parliamentan intention which is both absurd and implausible, requiring theassumption to be made that Parliament is entirely unconcerned aboutthe use and misuse of the governmental power which it creates. Forthis reason—together with the failure of common law theorists torebut the argument that the limits of statutory power must, logically,be determined by reference to the extent of the parliamentarygrant—the fifth approach must be rejected. The fourth model standsalone in accommodating the theory of legislative supremacy and thepractice of judicial review in a manner which is both logical andplausible.

Indeed, the modest role for legislative intention which is beingargued for is, in some respects, supported by opinions which Sir JohnLaws has himself expressed, both judicially and extra-curially.

In the Witham decision, the Divisional Court struck downregulations made by the Lord Chancellor in order to raise court feesand to remove the exemption which persons receiving income supporthad previously enjoyed.57 The reasoning of Laws J., with whichRose L.J. concurred, is clearly consistent with the present argumentwhich holds that a relationship exists between the standards oflegality applied by the courts on review, and the legislative intentionof Parliament:

[T]he primary submission is that there exist implied limitationsupon the Lord Chancellor’s power to prescribe the fees to betaken in the Supreme Court. Section 130 [of the Supreme CourtAct 1981, which was the putative legal basis on which the LordChancellor relied] does not permit him to exercise the power insuch a way as to deprive the citizen of what has been called hisconstitutional right of access to the courts.58

Moreover, in his conclusion, Laws J. rejected counsel’s submission“that there is no vires argument here”.59 Such references to “impliedlimitations” and “vires” appear to acknowledge some form ofrelationship between legislative intention and the grounds of review.Indeed, this is entirely consistent with a number of House of Lords

57 R. v. Lord Chancellor, ex p. Witham [1998] Q.B. 575.58 Ibid., at pp. 579–580, per Laws J. (emphasis added).59 Ibid., at p. 586.


decisions, such as Page60 and Pierson,61 which have affirmed theimportance of the ultra vires doctrine. Most recently, the centrality—and practical consequences—of the ultra vires principle have beenunderscored by the House of Lords in Boddington v. British TransportPolice.62 Lord Steyn could see “no reason to depart from theorthodox view that ultra vires is the ‘central principle of administrativelaw’63. . . . This is the essential constitutional underpinning of thestatute based part of our administrative law.”64 Lord Irvine L.C.65

and Lord Browne-Wilkinson66 were equally supportive of the ultravires doctrine.67

It is also instructive to refer to the following passage from Laws’scontribution to the recently-published Festchrift in honour of SirWilliam Wade:

In an age when respect for human rights has received theimprimatur of civilised society, which regards it not as a politicaloption but as a moral necessity, the reasonable public decision-maker is bound to entertain a bias against any infraction ofsuch rights. . . . A public authority cannot be neutral about thedemands of individual freedom without building a wall betweenitself and current public morality. So, in the name ofreasonableness, the law insists that the decision-maker is notneutral.68

60 R. v. Lord President of the Privy Counil, ex parte Page [1993] A.C. 682. See Lord Browne-Wilkinson at pp. 701–702: “[Judicial review] is based on the proposition that [administrative]powers have been conferred on the decision-maker on the underlying assumption that the powersare to be exercised only within the jurisdiction conferred, in accordance with fair proceduresand, in a Wednesbury sense, reasonably . . . [Therefore,] the constitutional basis of the courts’power to quash [administrative decisions] is that the decision of the inferior tribunal is unlawfulon the grounds that it is ultra vires.”

61 R. v. Secretary of State for the Home Department, ex parte Pierson [1998] A.C. 539. The speechof Lord Steyn provides a particularly striking illustration of the methodology of ultra viresoperating in precisely the manner contended for in the present article. The question whether itwas within the Home Secretary’s powers under the Criminal Justice Act 1991, s. 35(2), toincrease the tariff of a prisoner serving a mandatory life sentence had to be resolved byconstruing the enabling provision within the context of the rule of law: “Unless there is theclearest provision to the contrary, Parliament must be presumed not to legislate contrary to therule of law. And the rule of law enforces minimum standards of fairness, both substantive andprocedural” (see p. 591). The rule of law required that a tariff period, once set and communicatedto the prisoner, should not be increased, and nothing in the Act displaced this presumption.Lord Browne-Wilkinson’s reasoning is also consistent with the thesis of this paper, although inhis dissenting speech he concluded that the decision was not unlawful (because his Lordshiptook a different view of precisely what the rule of law required of the Home Secretary).

62 [1998] 2 W.L.R. 639. For comment on this decision, see M.C. Elliott, “Boddington: Rediscoveringthe Constitutional Logic of Administrative Law” [1998] Judicial Review 144.

63 This term is, of course, Sir William Wade’s: see Wade and Forsyth, op. cit. n. 4, at p. 41.64 Boddington, at p. 662.65 See ibid., at p. 650: “The Anisminic decision established . . . that there was a single category of

errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn betweena patent (or substantive) error of law or a latent (or procedural) error of law.”

66 See ibid., at p. 655: “I adhere to my view that the juristic basis of judicial review is the doctrineof ultra vires.”

67 Lords Slynn and Hoffmann gave only very short, concurring speeches, and therefore did notdiscuss the ultra vires doctrine.

68 Sir John Laws, “Wednesbury” in C.F. Forsyth and I.C. Hare (eds.), The Golden Metwand and theCrooked Cord (Oxford 1997), p. 195 (original emphasis).


The essence of this argument is that it is unreasonable to be neutralabout individual freedoms. If it is unreasonable to be neutral aboutthe substantive freedoms with which the excerpt is concerned, thenthis must be equally true of the procedural rights which are presentlyvindicated by way of judicial review. Furthermore, if—as Lawscontends—neutrality on this matter is unreasonable on the part ofadministrative authorities, then it is equally (or perhaps even more)unreasonable on the part of the legislature. Laws argues that “in thename of reasonableness”, the law (by which he means the judiciary)precludes such neutrality. However, it is submitted that in relation tothe scope of discretionary power created by Parliament, the courtsdo not need to insist that the limits of such power are biased infavour of, rather than neutral about, the protection of individuals’procedural rights. If Parliament is not to be taken as neutral—and,therefore, on Laws’s own argument, unreasonable—then it must beassumed that Parliament itself is biased in favour of the limitation ofpublic power in accordance with the precepts of the rule of law, whileleaving it to the courts to determine the detailed requirementsnecessary to give effect to this bias. The courts do not possess amonopoly on reasonableness. Parliament can be reasonable too, andshould be taken to be so—by presuming an intention to legislate inconformity with the rule of law—unless strong evidence exists to thecontrary. It is this straightforward proposition which lies at the heartof the ultra vires principle within its proper constitutional setting.

IV. A C S U V D:O S T M

The charge most frequently levelled against the ultra vires doctrine isits inability to explain the connection between legislative intentionand the rules of good administration which the courts enforcethrough judicial review. It has already been argued that, once theultra vires principle is located within its proper constitutional setting,this criticism can no longer be sustained.

However, this is certainly not the only criticism which has beenmade of the traditional model. It is the purpose of the remainder ofthis paper to address the other principal shortcomings of theorthodox ultra vires doctrine—helpfully set out by Craig in his recentarticle on the subject69—and to demonstrate that those problems donot beset the ultra vires principle once it is understood within itsconstitutional setting.

69 Op. cit. n. 8, especially pp. 64–70.


A. The development of administrative law across time

The direct connection between legislative intention and the groundsof review which the traditional ultra vires doctrine seeks to establishis placed under particular strain when the development ofadministrative law across time is considered, as Craig observes:

The constraints which exist on the exercise of discretionarypower are not static. Existing constraints evolve and new typesof control are added to the judicial armoury. Changes in judicialattitudes towards fundamental rights, the acceptance of legitimateexpectations, and the possible inclusion of proportionality as ahead of review in its own right are but three examples of thisprocess. These developments cannot plausibly be explained byreference to legislative intent.70

This is a strong criticism of the orthodox view of ultra vires.However, once the ultra vires doctrine is properly understood, thedevelopment of administrative law over time is readily comprehensible.Within the modified ultra vires model which has been set out, thetask of the courts is not to ascertain and effectuate a crystallisedlegislative intention regarding the limitation of discretionary power.Rather, the creativity of the judicial function can be openlyacknowledged. It is for the courts to decide how discretionary powershould be limited in order to ensure that its exercise complies withthe requirements of the rule of law. Consequently, instead of relatingthe development of administrative law to putative changes inlegislative intention, the modified ultra vires model holds that suchdevelopments relate to the evolution, across time, of the content ofthe constitutional principle of the rule of law. As the fluid anddynamic British constitution develops, so the courts rightly draw onchanging constitutional norms in order to fashion new principles ofjudicial review and reformulate old ones.

This approach to statutory interpretation, according to whichlegislative provisions are construed in light of prevailing conditions,is widely accepted, as Professor Jack Beatson explained in a lecturedealing with the modern role of the common law within a legalsystem which is increasingly dominated by legislation:

The vitality of the common law is preserved by the presumptionthat Parliament intends the court to apply to an ongoing statute. . . a construction that continually updates its meaning to allowfor changes since it was initially framed. This means that in itsapplication on any date the language of the Act, thoughnecessarily embedded in its own time, is nevertheless to beconstrued in accordance with the need to treat it as current law

70 Ibid., at p. 68. A similar point is made by Laws, op. cit. n. 6, at pp. 78–79.


. . . [For example,] at the time the Land Registration Act 1925was passed giving a person “in actual occupation” of propertyan overriding interest, the balance of authority suggested that awife residing with her husband where the husband alone was thelegal owner of the property was not “in actual occupation”. Butby the beginning of the 1980s the social and legal status ofhusband and wife had changed and it was held that the wifewas “in actual occupation” and entitled to the statutoryprotection. The solution was derived from a consideration of thestatute in the light of current social conditions.71

Just as the courts’ interpretation of legislation changes according tosocial conditions, so their view of what limits on discretionary powerare required by the rule of law alters as the constitution developsover time.72

The evolution of judicial review to date can be related to theconstitutional changes which have been prompted by the massiveexpansion of the administrative state, necessitating the developmentof safeguards for individuals as they interact with government inorder to ensure that citizens are treated in accordance with rule oflaw. In this manner, it is possible to understand the development ofadministrative law within an analytical model which ascribes arelevance to legislative intention, but without resorting to the strainedproposition that changes in judicial control correspond directly tothe will of Parliament.

B. Preclusive clauses

The traditional methodology of ultra vires also encounters problemsin relation to the courts’ treatment of legislative provisions which—atleast on their face—seek to curtail or exclude judicial review of aparticular decision-making process. As Craig points out, “If therationale for judicial review is that the courts are therebyimplementing legislative intent this leads to difficulty where thelegislature has stated in clear terms that it does not wish the courtsto intervene with the decisions made by the agency.”73

These difficulties can be observed in their most acute form in thecelebrated decision of the House of Lords in Anisminic Ltd. v. ForeignCompensation Commission.74 In spite of a legislative enjoinder thatdeterminations of the administrative agency in question could “notbe called in question in any court of law”,75 the court nevertheless

71 “Has the Common Law a Future?” [1997] C.L.J. 291, 302–303.72 See R. v. Secretary of State for the Home Department, ex p. Doody [1994] 1 A.C. 531, 560, per

Lord Mustill: “The standards of fairness are not immutable. They may change with the passageof time, both in general and in their application to decisions of a particular type.”

73 Op. cit. n. 8, at p. 68.74 [1969] 2 A.C. 147.75 Foreign Compensation Act 1950, s. 4(4).


intervened, holding that Parliament could not have intended toinsulate unlawful decisions from judicial review.76

As Craig points out, if judicial review is about nothing more thanascertaining and enforcing the literal meaning of the words whichParliament uses, then cases like Anisminic cannot be accommodatedwithin such a model. However, it has been argued that the exerciseof the judicial review jurisdiction occurs within a constitutionalsetting that leads the courts to impute to Parliament an intention tolegislate consistently with the rule of law. As a long line of authoritiesattests, the rule of law strongly favours citizens’ access to the courts.77

Consequently, ouster provisions present the courts with a tensionwhich must be resolved, since the literal meaning of the provisionappears to be inconsistent with the deeply embedded canon ofconstruction that Parliament intends to legislate in conformity withthe rule of law. Two countervailing forces are therefore at work. Thecourt must attempt to find the right constitutional balance betweenthe prima facie meaning of the provision and the strong preferencefor access to justice which the rule of law embodies.

This interpretive methodology is certainly not peculiar to theconstruction of ouster provisions. British courts have long beenrequired to look beyond the plain meaning of national legislation inorder to construe it compatibly with European Community law,whenever possible.78 A comparable interpretive obligation will beimposed on the judiciary by the Human Rights Act 1998, which willenjoin the courts to read and give effect to primary and secondarylegislation in a way which is compatible with fundamental rights, sofar as it is possible to do so.79 In each instance, the interpretivefunction of the judiciary transcends the mechanical implementationof the words which Parliament employs. The doctrine of indirecteffect and the Human Rights Act contribute to the rich tapestrywhich forms the backdrop against which British courts discharge

76 The success of this argument depended, of course, on precisely what was meant by an “unlawfuldecision”. It was the House of Lords’ expansive reformulation of the notion of jurisdictionwhich permitted judicial review to lie in spite of the ouster clause. By holding that anycontravention of the principles of good administration constituted an excess of jurisdiction onthe part of the decision-maker, it was possible to characterise all unreasonable and unfairdecisions as unlawful and, therefore, unprotected by the preclusive provision which operatedonly on determinations within jurisdiction.

77 In addition to Anisminic, a number of other decisions confirm the importance which is attachedto the right of access to the courts. See, inter alia, Raymond v. Honey [1982] 1 All E.R. 756;R v. Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198; R v. LordChancellor, ex parte Witham [1998] Q.B. 575.

78 The European Court of Justice articulated this interpretive obligation, known as the doctrine ofindirect effect, in order to secure some effect in national law for Community provisions whichlack direct effect. See Case 14/83, Von Colson v. Land Nordrhein-Westfalen [1984] E.C.R. 1891and Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990]E.C.R. I-4135. For an imaginative example of this interpretive approach in the English courtssee Webb v. Emo Air Cargo (UK) Ltd. (No. 2) [1995] 1 W.L.R. 1454.

79 Section 3(1).


their interpretive duties. The rule of law also constitutes afundamental part of that backdrop.80

To the extent that the traditional ultra vires doctrine denies tothe courts any interpretive role beyond effectuating the literal meaningof enactments, it is indeed incapable of accommodating the creativeapproach which has been adopted in such cases as Anisminic. Thishas led some writers to argue that, in their decisions concerningpreclusive clauses, the courts must be enforcing some deeperconstitutional logic which is prior even to the sovereignty ofParliament.81

However, such attempts to rationalise the courts’ jurisprudenceon ouster provisions is fundamentally inconsistent with the Britishconstitutional framework. In contrast, by placing the ultra viresdoctrine within its proper constitutional setting, it is possible toarticulate an explanation of the courts’ approach to ouster clauseswhich accommodates both the theory of parliamentary sovereigntyand the constitutional duty of the judges to uphold the rule of law.

Such an approach will not always make it possible for the courtsto construe ouster provisions so as to preserve some role for judicialreview. For example, the courts give effect to the literal meaning ofclauses which preclude review only after a certain period of time hasexpired: in this area, there is less tension between the plain meaningof the provision and the dictates of the rule of law, because judicialreview is not precluded altogether by the clause.82

The field of collateral challenge also illustrates judicial acceptancethat Parliament can reduce the scope for vindication of public lawvalues in the courts. Thus, in R. v. Wicks,83 the House of Lordsrecognised that, although the rule of law generally requires defendantsin criminal proceedings to be able to raise as a defence the invalidityof the secondary legislation under which they are charged, suchcollateral challenge will not be permitted when this would beinconsistent with the statutory scheme which Parliament hasestablished. As Lord Nicholls observed, “the general principles [whichfavour the availability of collateral challenge] . . . must always take

80 See Lord Steyn, “Incorporation and Devolution—A Few Reflections on the Changing Scene”,op. cit. n. 49, at p. 154: “So much of public law concerns interpretation of statutes . . . Toooften courts have asked: Is there an ambiguity in the statute? . . . It is sometimes a misguidedjourney to search for an ambiguity. The principle of legality may apply: it is in the words ofRupert Cross a constitutional principle not easily displaced by a statutory text.” See also T.R.S.Allan, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” [1985]C.L.J. 111 on the importance of the rule of law in the interpretive context.

81 See Wade and Forsyth, op. cit. n. 4, at p. 737 and T.R.S. Allan, “Parliamentary Sovereignty:Law, Politics, and Revolution”, op. cit. n. 46, at p. 448.

82 See Smith v. East Elloe Rural District Council [1956] A.C. 736 and R. v. Secretary of State forthe Environment, ex parte Ostler [1977] Q.B. 122 and, generally, Wade and Forsyth, op. cit. n. 4,at pp. 742–756.

83 [1998] A.C. 92.


effect subject to any contrary indication in the relevant legislation”.84

However, the court is more likely to conclude that Parliament trulyintended to prevent collateral challenge when the defendant hadsufficient opportunity to question the validity of the delegatedlegislation by administrative means since, in this situation, the threatto the rule of law is not so serious.85

Nevertheless, in our constitutional system, any irreconcilableconflict between the intention of Parliament and the rule of law mustultimately be resolved in favour of the former,86 and judicial decisionswhich fail to respect this axiom must be rejected as lackingconstitutional legitimacy. Some ouster provisions enacted since theAnisminic decision seek to circumvent the reasoning employed in thatcase by, for example, providing that even “purported determinations”87

or decisions “as to jurisdiction”88 are not reviewable. It may well bethat such clauses would, if put to the test, be held to evince alegislative intention which is sufficiently clear to preclude judicialreview. It would then be the duty of the courts to enforce thoseprovisions.

However, it is the function of the judiciary to ensure that, so faras possible, legislation is interpreted in a manner which is consistentwith the rule of law. The values which underlie our constitutiondictate that Parliament cannot be assumed—in the absence of veryclear countervailing evidence—to intend anything else. Understoodthus, the judicial attitude to ouster clauses and the view of the ultravires doctrine which is propounded are of a piece with one another:in each case, the courts’ jurisprudence springs from the interpretationof legislation within a framework based firmly on the rule of law.89

84 Ibid., at p. 109.85 See Boddington v. British Transport Police [1998] 2 W.L.R. 639, 653, per Lord Irvine L.C., who

argued that the outcome in R. v. Wicks, op. cit. n. 83, turned on the point that it concerned anadministrative act “specifically directed” at the defendant who, in turn, had enjoyed “clear andample opportunity” to challenge administratively the legality of the act in question before beingcharged with an offence.

86 Indeed, it is this principle which lies at the heart of the Human Rights Act. The respect forfundamental rights which is facilitated by the interpretive machinery set out in s. 3 must giveway to the sovereign will of Parliament when legislation cannot be reconciled with the EuropeanConvention. This is clear from ss. 3(2)(b) and 4(6)(a), which provide that neither the duty ofconsistent construction nor the issue of a declaration of incompatibility shall affect the “validity,continuing operation or enforcement” of primary legislation.

87 See Foreign Compensation Act 1969, s. 3(3) and (9).88 See Interception of Communications Act 1985, s. 7(8), and Security Service Act 1989, s. 5(4).89 Moreover, the logic of ultra vires generally enhances the courts’ ability to vindicate the rule of

law by narrowly interpreting ouster clauses. When the South African Appellate Divisionabandoned the ultra vires doctrine in favour of a common law basis for certain grounds ofreview in Staatspresident v. United Democratic Front 1988 (4) S.A. 830, it found itself unable toapply Anisminic reasoning to an ouster provision. For discussion, see Forsyth, op. cit. n. 7, atpp. 129–133.


C. Judicial review of non-statutory power

It is often said that a further shortcoming of the traditional ultravires principle is its inability to justify the entirety of judicial review.90

The courts now confidently supervise not only the use of statutorypower, but also the exercise of prerogative and de facto power.91 Thisraises important problems for proponents of the traditional ultravires doctrine. As Paul Craig clearly explains, judicial review of non-statutory power “cannot be rationalised through the idea [embodiedin the traditional ultra vires principle] that the courts are delineatingthe boundaries of Parliament’s intent”.92 Thus, Sir William Wade hasremarked—in response to the review of non-statutory power in theGillick case93—that, “The dynamisn of judicial review is such that ithas burst through its logical boundaries”.94

If the boundaries of judicial review are taken to be whollydelimited by the ultra vires rule, then review of prerogative and othernon-statutory power is indeed unjustifiable. However, our constitutionwould be highly defective if it were incapable of legitimising judicialreview of non-statutory forms of governmental power. Indeed, inlight of its capacity to adapt to changing circumstances—whichderives from its unwritten and flexible character—the Britishconstitution should be well-placed to rise to new challenges such asthe need to regulate the exercise of different forms of public power.

Consequently, proponents of the traditional ultra vires doctrinemay argue that while the orthodox view of ultra vires explainsjudicial review of statutory power, a different justification must bearticulated in relation to review of other types of power.Unfortunately, this view is also problematic, since it raises a difficultparadox. It means that the justifications for judicial review ofstatutory and non-statutory power are entirely distinct, the formerbeing found in judicial vindication of legislative intention, with thelatter—of logical necessity—resting on wholly separate foundations.However, it must be recalled that—considerations of justiciabilityaside—the courts apply very similar grounds of review to all forms

90 See, inter alios, Oliver, op. cit. n. 5; Craig, op. cit. n. 37, at pp. 15–16 and op. cit. n. 8, at p. 70.91 See principally R v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 Q.B. 864;

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; R v. Panel onTake-overs and Mergers, ex parte Datafin plc. [1987] Q.B. 815.

92 Op. cit. n. 8, at p. 70. See also Craig, op. cit. n. 37, at pp. 15–16.93 Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112. This case concerned

judicial review of ministerial guidance to doctors relating to the provision of contraceptiveadvice to minors. In fact, Lords Fraser and Scarman (at pp. 166 and 177, respectively) thoughtthat the advice was issued pursuant to a statutory discretion created by the National HealthServices Act 1977, s. 5(1)(b), so that the traditional ultra vires doctrine could apply. However,Lord Brandon did not take this point, and Lords Bridge and Templeman (at pp. 192 and 206,respectively) agreed that the advice was not issued under any statutory authority, but that reviewcould nevertheless lie.

94 H.W.R. Wade, “Judicial Review of Ministerial Guidance” (1986) 102 L.Q.R. 173, 175.


of governmental power which have been held amenable to judicialsupervision.95 If it is maintained that wholly distinct constitutionalfoundations underpin the review of statutory and non-statutorypower, it is difficult to explain why the two regimes are nevertheless,in substance, the same as one another.96

These shortcomings do not beset the modified ultra vires principle.This model does not seek to justify judicial review of statutory powerpurely in terms of legislative delegation, and nor does it require thejustifications for judicial review of different types of power to beseparated into watertight compartments. It recognises that the wholeof judicial review rests on one foundation, viz. the rule of law. Inrelation to review of statutory power, the operation of the sovereigntyprinciple raises special considerations which require the rule of lawto be vindicated presumptively in order to ensure that judicial reviewcan be reconciled with constitutional principle. Outside the realm ofstatutory power, the rule of law can be effectuated directly, since theconstraints which the sovereignty principle imposes on review ofstatutory power do not operate in relation to non-statutory power.

Consequently, the ultra vires doctrine, within its properconstitutional setting, is consistent with a judicial review regimewhich transcends the supervision of statutory power and whichapplies identical principles of good administration, based on the ruleof law, to all types of governmental power. The fact that theinterpretive methodology of ultra vires is applicable only to thereview of statutory power should not be perceived as a criticism ofthe modified ultra vires model but, rather, as an important strength.It is this feature of the model which allows requirements of legalityto be applied to powers created by Parliament in a way which iscompatible with the doctrine of legislative supremacy, yet within a

95 For example, in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374,411, Lord Diplock stated that the grounds of review based on “illegality” and “proceduralimpropriety” apply both to statutory and prerogative power; he also said that there is “no apriori reason to rule out ‘irrationality’ as a ground for judicial review of ministerial decisionstaken in exercise of prerogative powers”, although he explained that the fields which are stillgoverned by prerogative power are such that judicial review will lie less frequently because“[s]uch decisions will generally involve the application of government policy” and are thereforelikely to be non-justiciable.

96 Of course, the precise content of the grounds of review, and the intensity with which they areapplied, varies according to the context. As regards review of statutory power, the legislativeframework may well indicate, for example, what fairness requires and which considerations arerelevant and irrelevant. In relation to non-statutory power similar guidance may exist, but inmore diffuse form. For instance, in R. v. Panel on Take-overs and Mergers, ex parte Datafin plc.[1987] Q.B. 815, 841, Lord Donaldson M.R. said that the court could intervene if (inter alia)the Panel misconstrued its Code, thereby leading it to commit what would be an “error of law”but for the non-legal character of the Code. However, the Panel had to be given a generousmargin of appreciation in discharging this interpretive function because it could choose tochange the rules at any time, and because of their open-textured nature. Nevertheless, in spite ofthis context-sensitivity in judicial application of the grounds of review, it remains the case that,at root, the courts apply the same broad requirements of fairness and rationality irrespective ofthe source of the power concerned.


coherent framework which embraces judicial review of all forms ofgovernmental power.

V. C

The uncertainties surrounding the juridical basis of administrativelaw become increasingly conspicuous and unsatisfactory as theimportance of judicial review grows. The need to address thisquestion is made more urgent by the impending changes which willoccur within administrative law when the Human Rights Act 1998 isbrought into force. The courts’ public law jurisdiction will assume aneven higher profile once the judiciary is charged with the importanttask of protecting not only individuals’ procedural rights, but alsotheir substantive rights.

Some—although by no means all—commentators who have, thusfar, participated in the stimulating debate concerning the constitu-tional basis of judicial review have tended to polarise the potentialsolutions to this difficult problem, by presenting the traditionaljustification based on parliamentary intention and the theory whichcredits the judges with developing a common law of judicial reviewas two stark alternatives which must be chosen between.

It is submitted that such an approach is ultimately misguided. Itis important to recognise that, for the reasons discussed above, thevast majority of judicial review—viz. that which regulates the use ofstatutory power—must be reconciled with parliamentary intention.Only in this manner is it possible to avoid the heterodoxy ofchallenging legislative supremacy, which would inhere in any attemptto divorce judicial review from the will of Parliament.

The impetus which underlies the desire of many critics toarticulate an autonomous justification for judicial review, based onindependent principles of the common law, is complex. Undoubtedly,however, it stems in a substantial part from a wish to abandon thefictitious direct relationship between legislative intention and judicialreview which forms the focus of the orthodox ultra vires doctrine,and to acknowledge and give credit to the fundamental role whichthe judiciary has played in fashioning the important safeguards whichcitizens now enjoy as they interact with governmental agencies. Theseideas have been expressed with particular clarity by Sir John Laws:

The judges’ duty is to uphold constitutional rights: to secureorder, certainly, but to temper the rule of the state by freedomand justice. In our unwritten legal system the substance of suchrights is to be found in the public law principles which thecourts have developed, and continue to develop. Parliament may(in the present stage of our constitutional evolution) override


them, but can only do so by express, focussed provision. Sinceultra vires consigns everything to the intention of the legislature,it may obscure and undermine the judges’ duty. . . . Moredeeply, ultra vires must logically reduce the constitutional normsof public law to the same condition of moral neutrality as inprinciple applies to legislation, because by virtue of it thedecisions of the courts are only a function of Parliament’sabsolute power. It means that the goodness of the common lawis as short or as long as the legislature’s wisdom. But thecommon law does not lie on any such Procrustean bed.97

It is the contention of this paper that it is possible to deal with theseissues without taking the constitutionally unacceptable step ofchallenging the sovereignty of Parliament by denying any role tolegislative intention in explaining the basis of judicial review. Themanner in which the courts have developed the law of judicial reviewto date, and the further development which will no doubt take placein the future,98 undeniably amounts to the articulation of a substantivebody of public law which has its basis in judicial creativity. Locatedwithin its constitutional setting, the ultra vires doctrine does notconsign this judicial achievement to the intention of the legislature;nor does it reduce the emerging and developing norms of public lawto a position of moral neutrality. In truth, the courts’ public lawjurisprudence is based on the vindication of the rule of law, whichforms part of the bedrock of the British constitution. Neitherconstitutional propriety nor the ultra vires doctrine, properlyunderstood, requires the courts to conceal the true nature of theirenterprise in this regard.

Nevertheless, so long as the common law accords a legislativesupremacy to Parliament, it must be possible to reconcile the courts’public law jurisprudence with this constitutional principle. It is theinterpretive methodology of ultra vires—and only this methodology—which is capable of securing this reconciliation. It does so notthrough any sleight of hand or trick of logic, but simply byrecognising the good sense in the dual propositions that Parliamentought to be taken to intend that the rule of law should be upheld,and that the limitation of discretionary power which is consequentlyrequired is a task most appropriately left to the judgment of thecourts. Understood thus, the achievement of the ultra vires principleis the provision of a conceptual basis for judicial review whichtruly comes to terms with the existing constitutional order, incontradistinction to competing explanations of review which mustultimately founder because they are not firmly anchored to

97 Op. cit. n. 9, at pp. 4.18–4.19.98 Particularly in light of the likely impact of the Human Rights Act.


the realities of—and the limitations imposed by—the prevailingconstitutional framework.

It has been written that “the [British] constitution possesses itsown harmony, in which the protection of individual liberties cancoexist with recognition of the ultimate supremacy of the democraticwill of Parliament”.99 Indeed, this is so, and can be appreciatednowhere more clearly than in the operation of the ultra vires doctrinewithin its proper constitutional setting.

99 T.R.S. Allan, op. cit. n. 80, at p. 112.

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