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No text Practical What an all powerful Parl does not prohibit, it must authorise either expressly or impliedly.

There is no grey area between authorisation and the denial of power. If Parliament has authorised vague regulations, those regulations cannot be challenged without challenging Parliament's authority to authorise such regulations. Everything which is done in reliance upon grant of power is actually either done within scope of power or outside scope. Only the ultra res doctrine will do: the courts are only constitutionally able to upset administrative action which lies outside power conferred by Parliament. Matter of logic quite possible for Parliament neither to authorise nor to prohibit a particular act. Absured results produced if argument is extrapolated. Relying on legislative intent dangerous - there may be some specic 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 Challenges to Forsyth GREY AREA Endicott and Laws Traditional The Link Between JR + Legislative Intention Courts' supervisory jurisdiction and parliamentary sovereignty NEED ultra res. Forsyth Starting Point Separation of Powers + RoL - Jowell (normative foundation for good administration) Inadequacy of ultra res widely accepted Can intervene whenever decision maker acts beyond powers conferred by legislation In reviewing govt action are merely doing parliament's bidding by enforcing the limits upon power which are found (expressly/impliedly) in statute Cases where enforce good administration without relation to statute Laws Woolf Forsyth 'Fig leaf' 'Fairy tale' '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 Problems Internal Tensions- nality clauses etc. Courts have used a number of interpretative techniques to limit the eect of such clauses (Anisminic) Craig Substantive The Ultra Vires Doctrine Two Arguments Formal Arguments should not be allowed to conceal reality of what legislature attempting to achieve. Such clauses were clearly designed to exclude the courts. 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 Judicial creations

PREMISE Oliver's inuential paper Supported by Craig, Laws


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

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 Parliament is free to make their dissent to the controls unequivocally clear, and the courts should obey Such principles are desirable in a normative sense. Can accommodate changing content Ultra res devoid of any real content. Laws says ultra res nothing to say as to what the court will count as a want of power in the deciding body. Allan - legislative intention is plainly relevant to the application of grounds of review. Forsyth - some form of relationship between parliamentary intention and judicial review remains essential Problems Strengths Craig Support What about administrative bodies that do not derive their power from statute? Co-Operative endeavour, shared and pervasive constitutional values are given concrete meaning and eect 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 'Modied' In absence of very clear contrary provision, Parliament taken to withhold from decision makers the power to treat individuals in manner which oends 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

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

Relationship exists in indirect form.