Administrative Law- The Constitutional Basis for Judicial Review Mindmap

No text Practical

Starting Point

What an all powerful Parl does not prohibit, it must authorise either expressly or impliedly.

Separation of Powers + RoL - Jowell (normative foundation for good administration) Inadequacy of ultra fires widely accepted

There is no grey area between authorisation and the denial of power.

Can intervene whenever decision maker acts beyond powers conferred by legislation

Courts' supervisory jurisdiction and parliamentary sovereignty NEED ultra fires.

If Parliament has authorised vague regulations, those regulations cannot be challenged without challenging Parliament's authority to authorise such regulations.

In reviewing govt action ¢ are merely doing parliament's bidding by enforcing the limits upon power which are found (expressly/impliedly) in statute

Forsyth

Cases where ¢ enforce good administration without relation to statute

Everything which is done in reliance upon grant of power is actually either done within scope of power or outside scope. The Link Between JR + Legislative Intention

Only the ultra fires doctrine will do: the courts are only constitutionally able to upset administrative action which lies outside power conferred by Parliament.

Laws

'Fig leaf'

Woolf

'Fairy tale'

Forsyth

Matter of logic quite possible for Parliament neither to authorise nor to prohibit a particular act.

GREY AREA

Endicott and Laws

Relying on legislative intent dangerous - there may be some specific legislative intent that we can point to, but this will often be absent. Parliament isn't sovereign. Interference with the principles of good administration lies outwit Parliament's authority.

CONSEQUENCES

Craig

PREMISE

Allan

Oliver's influential paper Supported by Craig, Laws

Challenges to Forsyth

Internal Tensions- finality clauses etc. Courts have used a number of interpretative techniques to limit the effect of such clauses (Anisminic)

Problems

Craig

Constitutional Basis of Judicial Review - Ultra Vires vs Common Law vs Modified Ultra Vires Origin and Endorsement

'No-one is so innocent to suppose that judicial creativity does not form the grounds of judicial review' Constraints on discretionary power are not static, and the developments cannot be explained by reference to legislative intent

Traditional

Absured results produced if argument is extrapolated.

Judicial creations

Substantive Two Arguments

The Ultra Vires Doctrine

Formal

Enabling legislation must be considered Principles of JR are in reality developed by courts Legislature rarely provide indications as to content and limits of JR. Court will decide on the appropriate procedural and substantive principles

Craig

Such principles are desirable in a normative sense. Can accommodate changing content

Support

Strengths

Ultra fires devoid of any real content. Laws says ultra fires nothing to say as to what the court will count as a want of power in the deciding body.

Forsyth - some form of relationship between parliamentary intention and judicial review remains essential

Bought at a price; doctrine is strained itself. The more contrived the search for the legitimation for legislative intent, the more strained and implausible does the whole doctrine become

What about administrative bodies that do not derive their power from statute?

Parliament is free to make their dissent to the controls unequivocally clear, and the courts should obey

Allan - legislative intention is plainly relevant to the application of grounds of review.

Arguments should not be allowed to conceal reality of what legislature attempting to achieve. Such clauses were clearly designed to exclude the courts.

Craig ultra vires is 'indeterminate'- Allan - CL no less indeterminate - principles of good administration are too general

Co-Operative endeavour, shared and pervasive constitutional values are given concrete meaning and effect by the judicial branch. The Common Law Theory - Adminstrative Justice is the solve preserve of the courts, good administration unilaterally imposed by judiciary upon administrators.

Elliott - The Constitutional Foundations of Judicial Review Parliament confers upon decision-maker only such power as is consistent with Rule of Law 'Modified'

Problems

In absence of very clear contrary provision, Parliament taken to withhold from decision makers the power to treat individuals in manner which offends rule of law. Parliament leaves it to judges to set precise limits of administrative competence. RoL pervasive constitutional principle. Courts rightly impute to parliament intention that RoL upheld. Weakened by vagueness of RoL

Relationship exists in indirect form.