Public Law sem 1

What is the Ultra Vires model?

• If a decision maker acts ultra vires, the courts may intervene. 

• Courts are merely doing parliament's bidding by enforcing the limits upon power which are (expressly or impliedly) in statute. 

• This justification is thought to sit well with the doctrine of parliamentary sovereignty- courts simply implementing and enforcing the will of the legislature. 

• The UV model seems persuasive where courts seek to enforce limits that are expressly stated in statutes. 

Problems with the UV model

• In other cases, courts apply legal principles of good administration which bear no obvious relation to the statutory text. 

• The courts have imposed and enforced judicially created standards of public behaviour- didn't derive from authority of Parliament. 

• Fig leaf metaphor- used to cover the principles that the courts came up with. Hiding this matter.  

• Craig-  UV model doesn’t make sense to state that judicial review suddenly discovered the will of parliament. Existing case law shows that judges slowly and reluctantly began to study the exercise of power. JR evolved organically. This means it is hard to place in the intention of parliament. 

• There is an issue with the fact that judges don't just review statutory powers. They also review non statutory powers like prerogative. How can judicial review be placed in the will of the parliament? 

What is the common law model?

• Principles of judicial review are common law instead. 

• Courts impose judicial review where they believe it is justified on the grounds of key constitutional principles 

• The strengths of this- more attached to judicial practice and evolution of judicial principles- fig leaf discarded. Adds dynamic character to judicial review. Explains review of non statutory powers. 

Critique of common law model

• Forsyth 

• Ultra vires model: Parliament never intends to grant power to make vague regulations =>vague regulations are ultra vires & void. 
  • Common law model: the grounds of review derive, not from the implied intent of the legislature, but from the common law. So => although the regulations are intra vires the minister’s powers, they are none the less invalid because they are vague. 

• Is it true that what parliament doesn't prohibit, it should be that they have authorised it? 

  • If yes- no grey area. Making of vague regulations is within powers granted by parliament- what basis may courts challenge this? 

  • Vague regulations- regulations cannot be challenged without challenging parliament's authority to authorise these regulations. 

Modified UV model

Forsyth and Elliot- Parliament has no specific intent in regard to many aspects of the law of judicial review. Parliament intends that the judges should ensure that decisions are made in accordance with the rule of law. 

Problem of inconsistency?