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POLITICAL CONSTITUTIONALISM AND JUDICIAL REVIEW Paul Craig∗

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less welldeveloped. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in



Professor of English Law, St John’s College and the University of Oxford. I am grateful for comments

from those who attended a Conference in Hong Kong and from Trevor Allan, Nick Barber, Hayley Hooper, Aileen Kavanagh, Jeff King, Janet McLean, Tom Poole and Adam Tomkins. A shorter version of this paper, which covers parts 1-3 of the argument, will appear in C Forsyth, M Elliott, S Jhaveri, A Scully-Hill, M Ramsden (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford: Oxford University Press, 2010).

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delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper.

A. CONSTITUTIONAL REVIEW

1. The General Critique

It is fitting to begin with the implications of political constitutionalism for constitutional review. Griffith is properly regarded as a leading exemplar of political constitutionalism and he was strongly opposed to constitutional review of statute.1 He was almost certainly a rights-sceptic, stating that it was ‘misleading to speak of certain rights of the individual as being fundamental and inherent in the person of the individual’2 and that ‘so-called individual or human rights are no more or no less than political claims made by individuals on those in authority’.3 Griffith was also undoubtedly a court-sceptic, viewing proposals for a Bill of Rights to be policed by the courts as objectionable because ‘law is

1

JAG Griffith, ‘The Political Constitution’ (1979) 42 MLR 1. For recent analyses of Griffith’s work see, T

Poole, ‘Tilting at Windmills? Truth and Illusion in the Political Constitution’ (2007) 70 MLR 250; G Gee, ‘The Political Constitutionalism of JAG Griffith’ (2008) 28 LS 20. 2

Griffith, n 1, 17.

3

Ibid 19.

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not and cannot be a substitute for politics’,4 and that such proposals merely ‘pass political decisions out of the hands of politicians and into the hands of judges or other persons’.5 Griffith opposed rights-based constitutional review because the rights to be included and their interpretation was controversial. Thus speaking of Article 10 ECHR Griffith opined that ‘it sounds like the statement of a political conflict pretending to be a resolution of it’,6 and that incorporation of the ECHR into domestic law would result in the judiciary interpreting ‘woolly principles and even woollier exceptions’.7 The general issue as to whether there should be constitutional review of statute has generated a veritable mountain of literature. The debate has now assumed prominence once again. Waldron8 and Bellamy9 are the leading opponents of rights-based constitutional review of statute.10 Waldron is a court-sceptic, but not a rights-sceptic. Bellamy’s position is more complex. He is certainly a court-sceptic, and is also more

4

Ibid 16.

5

Ibid 16.

6

Ibid 14.

7

Ibid 14.

8

J Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) and ‘The Core Case against

Judicial Review’ (2006) 115 Yale LJ 1346. 9

R Bellamy, Political Constitutionalism, A Republican Defence of the Constitutionality of Democracy

(Cambridge: Cambridge University Press, 2007). See also, G Gee and GCN Webber, ‘Britain’s Political Constitution: A Normative Turn’, SSRN-id 1343578. 10

See also, M Tushnet, Taking the Constitution away from the Courts (Princeton: Princeton University

Press, 1999); L Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004).

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sceptical about rights insofar as he believes that citizenship should not be equated with a narrow concept of individuals being rights-holders against the state but comprises a ‘continuously reflexive process, with citizens reinterpreting the basis of their collective life in new ways that correspond to their evolving needs and ideals’.11 There is nonetheless much common ground in the reasons for their courtscepticism. Thus the central premise to Waldron and Bellamy’s argument is the prevalence of disagreement concerning the rights that should be included within any Bill of Rights and their interpretation. For both writers such disagreement pervades the very foundational ideas of justice on which society is grounded. They maintain therefore that whether viewed in terms of process, or in terms of outcome, it is preferable for such matters to be decided ultimately by the political and not the legal process. The detailed arguments for and against this position are complex, and I do not intend to add anything directly to this debate. It is however necessary to clarify the focus of this challenge, since there are differences between Waldron and Bellamy. Waldron’s argument concerns judicial review of legislation, not executive or administrative action. It is premised on strong constitutional review as it operates in the USA, whereby courts are empowered to decline to apply a statute for non-conformity with rights embodied in the Constitution, and encompasses constitutional regimes where courts can formally invalidate statute on rights-based grounds.12 It is also conditioned on

11

R Bellamy, ‘Constitutive Citizenship versus Constitutional Rights: Republican Reflections on the EU

Charter and the Human Rights Act’, in T Campbell, KD Ewing and A Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001), 15. See also, Bellamy, n 9, 48-50, 141, Chap 6. 12

Waldron, ‘The Core Case’, n 8, 1354-1355.

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four more particular assumptions: democratic institutions are in reasonably good working order; the same being true for judicial institutions; commitment by most members of society and officials to the idea of individual and minority rights; and ‘persisting, substantial and good faith disagreement about rights’.13 There is a further important premise to Waldron’s thesis, which is that the strong constitutional review occurs against the backdrop of legislative recognition of the contestable rights-based issue, the paradigm being clear legislative determination of matters such as abortion, campaign financing and the like. Thus he acknowledges that in other instances it may not be easy for the legislature to see what issues concerning rights are embedded in a legislative proposal, or when they might arise from its subsequent application. Waldron is willing in such instances to countenance weaker forms of constitutional review.14 He makes clear that his target is strong judicial review,15 and thus he does not include in his attack the weaker form of review found in the Human Rights Act 1998, whereby our courts may not decline to apply a statute for violation of Convention rights, although they can make a declaration of incompatibility that triggers recourse to Parliament and use of the fast track procedure to remedy the deficiency.16

2. The Critique and the HRA

13

Ibid 1360.

14

Ibid 1370.

15

Ibid 1354.

16

Ibid 1355.

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Bellamy differs in this respect, being less willing to distinguish between a Bill of Rights contained in a Constitution, and the schema in the Human Rights Act 1998. He acknowledges the difference between the two, but nonetheless is also critical of the latter, since he perceives it as suffering from the same infirmities as the former, in particular the substitution of the court’s view for that of the legislature. Thus Bellamy argues that while it is open to the legislature not to accept the court’s view under the HRA, he maintains that ‘it is ultimately judicial review by the judges sitting in the relevant court which decides the issue’, with the consequence that ‘legislators come under pressure to anticipate the court’s result rather than to elaborate a view of their own’.17 Two comments can be made on this argument.

(i) Disagreement and Legislative Choice

The first is that it proves too much, given the very premise that underlies Bellamy’s own thesis. Disagreement is the driving force behind Waldron and Bellamy’s argument, leading to the preference for democratic choice as opposed to judicial decision. Yet the HRA is the very embodiment of that choice made by the legislature, irrespective of whether a particular individual agrees with it or not. In that sense the HRA regime is imbued with democratic legitimacy. The reasons why the legislature took this step are undoubtedly eclectic. They included the desire to ‘bring rights home’, thereby avoiding Strasbourg adjudication on ECHR rights which could not be directly relied on before national courts, and the wish

17

Bellamy, n 9, 47-48.

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not to be one of the few democratic states without such protections. There may well also have been many who simply disagreed with Bellamy’s argument, concerning the relationship between rights and majority rule. The contrary argument that there should be some rights-based constraints policed by a court in a constitutional democracy has been advanced from a liberal perspective by Rawls18 and Dworkin,19 and from a republican perspective by Pettit,20 Sunstein21 and Michelman.22 To be sure Bellamy puts opposing arguments, but those responsible for deciding might not be persuaded. It can be accepted that not every decision made by a democratically elected legislature necessarily enhances democracy, in outcome terms at least. It can also be acknowledged that the attempt to defend a Constitution with strong rights-based judicial

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19

J Rawls, Political Liberalism (Columbia University Press, 1996). R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford: Oxford

University Press, 1996). See also, C Eisgruber, Constitutional Self-Government (Cambridge, Mass: Harvard University Press, 2001); L Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (New Haven: Yale University Press, 2004). 20

21

P Pettit, Republicanism, A Theory of Freedom and Government (Oxford: Clarendon Press, 1997). C Sunstein, ‘Interest Groups in American Public Law’ (1985) 38 Stan LR 29 and ‘Beyond the

Republican Revival’ (1988) 97 Yale LJ 1539. 22

F Michelman, ‘Foreword: Traces of Self-Government’ (1986) 100 Harv LR 4.

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review is more difficult and that the argument from pre-commitment23 is fraught with difficulty.24 This does not alter the point made above. The HRA is a statute, not a Constitution, it does not embody strong constitutional review in the sense articulated by Waldron and it was made by a democratically elected legislature.25 Test the point the other way round. We assume that the legislative majority agrees with Rawls, Dworkin, Pettit et al, and believes that democracy demands majority rule tempered by rights-based judicial control, or indeed that it has a plethora of other reasons for endorsing judicial oversight. The natural mode of legislative expression is through legislation, the quintessential expression of majority preferences.

(ii) Disagreement and Legislative Reaction

The second point concerns the legislative response to judicial decisions. There is clearly room for debate as to the degree of practical difference in outcome between strong

23

S Holmes, ‘Pre-commitment and the Paradox of Democracy’, in J Elster and R Slagstad (eds),

Constitutionalism and Democracy (Cambridge: Cambridge University Press, in collaboration with the Maison des Sciences de l’Homme, 1988), Chap 7. 24

Waldron, Law and Disagreement, n 8, Chap 12; J Elster, Ulysses Unbound, Studies in Rationality,

Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000), Chap 2. 25

It can nonetheless consistent with this argument be acknowledged that the HRA has a special

constitutional status, in the sense that the courts will not conclude that its provisions have been overridden unless there is some very compelling justification for such a conclusion.

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constitutional review and weaker forms thereof.26 Those, such as Waldron, who maintain that the form of constitutional review, whether strong or weak, still matters rely, inter alia, on the fact that Parliament nonetheless still has the last deliberative word in regimes such as the HRA. Those who argue that the difference is primarily one of form, such as Bellamy, rely on the fact that that even in regimes such as the HRA the legislature is constrained to modify primary legislation in accord with judicial decisions. This latter argument is however premised on legislative capitulation to judicial will. The picture is surely more complex and nuanced. Thus while the UK legislature has modified primary legislation in accord with judicial decisions the reasons why it has done so were almost certainly more eclectic than the picture depicted above. Consider the following. The legislation may well have been of the kind adverted to above, where Parliament was unaware of all rights-based issues in a legislative proposal, or which might arise from its subsequent application. When these became apparent in subsequent litigation Parliament was content with the judicial resolution and made the required changes. A number of the UK cases are arguably of this nature.27 There may be other instances where Parliament has expressed a considered view on the rights-based issue,

26

Compare in this respect D Dyzenhaus, ‘Are Legislatures Good at Morality? Or Better at it than the

Courts?’ (2009) 7 I-CON 46 and J Waldron, ‘Refining the Question about Judges’ Moral Capacity’ (2009) 7 I-CON 69. 27

See, e.g., Matthews v Ministry of Defence [2002] 3 All ER 513; R (on the application of International

Transport Roth GmbH) v Secretary of State for the Home Department [2003] QB 728; Re S (children: care plan) [2002] 2 AC 291; Ghaidan v Godin-Mendoza [2004] 2 AC 557.

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but on further reflection acknowledges that the judicial view is preferable. There may be yet other instances where the relevant minister responsible for the legislation does not wholly agree with the judicial determination, but nonetheless decides that it is not worth the fight. A final possibility is that Parliament feels pressure to accept the judicial decision, lest it be portrayed as insufficiently protective of rights, even where it genuinely believes that its determination of the right was preferable. It therefore makes the changes, even though the HRA allows Parliament to stick to its original view.28 It is the last such instance that most troubles commentators about the HRA. The answer is surely that courts and Parliament both have responsibility in this respect. The courts should acknowledge that there can be disagreement about the more concrete meaning of rights, with the consequence that the legislative choice should be treated with respect. The dialogue should not be merely one-way, with the courts ignoring considered legislative choices concerning the contested right.29 Yet Parliament has a responsibility here too. This is not just to take the judicial decision seriously, which it does, but also to be willing not to accept it if Parliament truly believes that its original legislative determination was indeed consistent with rights, and preferable to that contained in the court’s judgment.

28

Compare S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 AJCL 707 and

JL Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model’ (2006) 69 MLR 7; JL Hiebert, ‘New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance when Interpreting Rights?’ (2004) 82 Texas LR 1963; JL Hiebert, ‘Parliament and Rights’, in T Campbell, J Goldsworthy and A Stone (eds), Protecting Human Rights (Oxford: Oxford University Press, 2003), Chap 11. 29

P Craig, Administrative Law (London: Sweet & Maxwell, 6th ed, 2008) 599-604.

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B. ADMINISTRATIVE LAW: THE RADICAL VIEW

While there is much literature considering political constitutionalism and constitutional review of primary statute, there has been much less consideration of its implications for administrative law judicial review. The following discussion considers the view of Adam Tomkins,30 which is labelled ‘radical’ to connote the degree of change from existing doctrine.

1. Historical Premise

Adam Tomkins’ analysis of modern judicial review is premised on what he sees as the failure of legal constitutionalism from an historical perspective. Tomkins writes engagingly and with verve about the seventeenth century, which is the exclusive focus of his analysis, and which he labels the failure of the common law constitution.31 There are three difficulties with this analysis. The first concerns the interpretation of the legal material that Tomkins does discuss, the seventeenth century case law on the prerogative. Tomkins downplays the significance of what are normally regarded as the seminal decisions in Prohibitions del Roy32 and The Case of Proclamations,33 for reasons that are not convincing.34

30

A Tomkins, Our Republican Constitution (Oxford: Hart, 2005).

31

Ibid 69-87.

32

(1607) 12 Co. Rep. 63.

33

(1611) 12 Co. Rep. 74.

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Whatsoever the broader motivations behind the decisions might have been, they were and have subsequently been affirmed as authority respectively for the propositions that the monarch did not have autonomous judicial power, nor any general regulatory power that could be exercised independently of Parliament. These decisions were therefore of real significance for our legal and political order. The fact that the ‘clock’ is stopped at the end of the seventeenth century means moreover that we get a distorted picture of the efficacy of legal control over the prerogative. We hear nothing about the seminal decision in Attorney General v De Keyser’s Royal Hotel,35 which built on the Case of Proclamations.36 The latter case, by establishing that the King did not possess general regulatory economic power which could be exercised independently of Parliament, thereby bolstered the authority of Parliament. De Keyser carried this logic further. It established that where Parliament had legislated the executive could not use prerogative power which might touch the same subject matter, thereby denying that prerogative power and statutory authority could exist in parallel; the executive had to follow the statutory conditions, and could not seek a more advantageous result by reliance on a prerogative power. Stopping the clock at the end of the seventeenth century means that we also hear nothing in this regard about the

34

P Craig, ‘Prerogative, Precedent and Power’, in C Forsyth and I Hare (eds), The Golden Metwand and

the Crooked Cord, Essays in Honour of Sir William Wade (Oxford: Oxford University Press, 1998), 65-89; T Hickman, ‘In Defence of the Legal Constitution’ (2005) 55 UTLJ 981, 1013. 35

[1920] AC 508.

36

(1611) 12 Co. Rep. 74.

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GCHQ37 case, which held that the courts could, subject to certain limitations, control the manner of exercise of an admitted prerogative. It thereby established structural equivalence in the sense that where the executive exercised prerogative power it should in principle be subject to the same controls as for statutory powers.38 The executive when acting pursuant to the most democratically legitimate discretionary power, that given by statute, was subject to controls relating to the manner of its exercise; given that this was so, the controls on prerogative discretionary power should not be markedly different. The history of legal control over the prerogative does not therefore exemplify the failure of legal constitutionalism. It should also be emphasized that recognition of the contribution made by legal constitutionalism does not deny the contribution made by political constitutionalism to control of prerogative power. This is not a zero-sum game.39 The second problem with Tomkins’ historical vision concerns the material that he does not consider. This is more serious, since there is no mention of the general law of judicial review. To test the history of common law constitutionalism with limited reference only to judicial control over prerogative power is not a balanced picture. The prerogative writs were extended to a wide range of bodies exercising statutory power and power analogous thereto. The activities performed directly by the state were very limited

37

Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374.

38

The exceptions to this basic proposition have been reduced by subsequent case law, Craig, n 29, 534-535.

See also, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61: prerogative legislation was subject to judicial review. 39

This is considered in Craig, n 34.

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in the seventeenth and eighteenth centuries, and even in the nineteenth century many functions were undertaken by boards, commissions, inspectors and the like. Judicial review of bodies ranging from tithe commissioners to inclosure commissioners, from tax commissioners to local justices and from poor law boards to local authorities constituted an important element of accountability in the administrative state. It can be accepted that certain legal decisions were open to criticism, and that there were practical difficulties in accessing the courts during this period. This does not undermine the point being made here, which is that the existence of legal constitutionalism contributed to the accountability of the administrative state. This is more especially so if one considers the scope for political constitutionalism as it applied to these bodies during this period. It would be interesting to know, for example, the efficacy of political controls over the plethora of bodies that constituted the administrative state. Most such bodies had no democratic mandate and the practical effectiveness of political controls was limited to say the very least.40 This leads naturally to the third difficulty with the historical analysis. A central precept of political constitutionalist thought is the normative value of legislative choice expressed by the democratically elected Parliament.41 We should however be mindful of the real limits of this precept when evaluating the relative efficacy of legal and political constitutionalism prior to the twentieth century. Parliament did make advances in its control over the executive. We should nonetheless not forget that prior to the 1832

40

See, e.g., C Stebbings, Legal Foundations of Tribunals in Nineteenth-Century England (Cambridge:

Cambridge University Press, 2006). 41

Tomkins, n 30, 1-5.

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Reform Act only approximately 5-10% of the population were enfranchised and had any direct ‘political voice’, and that women were not fully enfranchised until 1928. The more egalitarian demands of the Levellers eloquently put by Lilburne and Rainsborough in the seventeenth century were not to be fulfilled for nearly three hundred years.

2. Judicial Review We can now consider Tomkins’ view about modern judicial review.42 He accepts that the courts should have the power to declare governmental action unlawful where it flouts a specific rule that Parliament has laid down.43 He does not however believe that the courts should be able to intervene through judicially created principles of legality.44 He is against irrationality review, since he believes that it is impossible to predict when the courts will hold action to be unreasonable and when it will not, thereby constituting untrammelled judicial discretion.45

He is equally opposed to proportionality review.46 He regards judicial

recognition of common law constitutional rights, such as access to court, as unwarranted,

42

Adam Tomkins has produced a subsequent paper, ‘The Role of the Courts in the Political Constitution’

(2010) UTLJ forthcoming. The argument advanced is related to that considered here, but has some new elements. It came too late to be considered in this paper. A critique of this argument will appear in P Craig, ‘Political Constitutionalism and the Judicial Role: A Critique’ forthcoming in (2010) I-CON. 43

Tomkins, n 30, 22.

44

Ibid 22.

45

Ibid 22.

46

Ibid 20-21.

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depicting this as judicial invention without foundation.47 In more general terms Tomkins is against courts enforcing Convention rights because: they involve issues of balancing unsuited for the judiciary;48 decisions concerning proportionality should be for the government and not the courts;49 and issues of principle, as well as policy, in such cases should be left to the political process.50 It is entirely legitimate for Tomkins to question the status quo from the perspective of political constitutionalism. It is, by parity of reasoning, equally in order to question this vision, which is problematic for the following reasons.

3. Consequences

It is important to note exactly how narrow judicial review would be under the Tomkins’ vision. He is against the HRA, irrationality review, proportionality and judicially created principles of legality. The reasons are eclectic: there is no legitimate foundation for such principles, they entail too much balancing, and they intrude on issues that are the preserve of the political process. The legitimacy of these reasons will be considered below. Suffice it to say for the present that if we accept this reasoning and the examples of doctrine that should be axed then we should be aware of other precepts of judicial review that would be deemed off bounds. Thus by parity of reasoning judicial review for legitimate expectations, equality, and natural justice would also seem to fall foul of the

47

Ibid 23.

48

Ibid 21.

49

Ibid 20-21.

50

Ibid 23-25.

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same strictures, since they exhibit one or more of the infirmities that Tomkins regards as invalidating the doctrines of judicial review that he explicitly refers to. Thus, to take but one of the previous list, natural justice would be ruled out both because: it is a general principle of legality, which is applied irrespective of whether it is required by the empowering legislation; it entails evaluation to determine the importance of the interest affected; and requires judicial balancing to determine the requirements of natural justice in a particular case. The same would follow for the other doctrines listed. It would seem moreover to follow from Tomkins’ analysis that the UK should withdraw from the European Convention on Human Rights. If adjudication under the HRA by national courts is deemed inappropriate, then this must also be true for adjudication by the Strasbourg Court. We should also note the difficulties in Tomkins’ positive criterion for inclusion within administrative law, viz, that it applies when the government ‘flouts a specific rule that Parliament has laid down.’51 There is no objection to this being part of judicial review, but the line between this type of case, and those that he regards as off-bounds, is not nearly as clear as he would have us believe. Thus determination of, for example, the proper purposes that can be served by discretionary power will often require difficult exercises of statutory interpretation, which fall far short of some paradigm of a minister flouting an unequivocally clear rule in the empowering legislation. Thus Tomkins either has to regard this too as being off-bounds, or to treat it as in-bounds and distinguish the difficult judicial exercise in such cases from that involved in other doctrinal areas that he wishes to exclude from the remit of judicial review.

51

Ibid 22.

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4. Consistency

(i) Three Difficulties

Tomkins’ analysis can also be questioned in terms of the consistency of his thesis on judicial review. He welcomes the decision in the Belmarsh Prison case, and regards it as the ‘beginnings of a much belated judicial awakening to the fact that even in the context of national security the courts have a responsibility to ensure that the rule of law is respected’.52 He is critical of certain seventeenth century cases concerning the prerogative53 and certain modern judicial decisions because the courts were too deferential to the executive,54 regarding this as a failure of legal constitutionalism. It is however difficult to see the ‘fit’ between this and Tomkins’ general position on judicial review. There are three related reasons for tension in this respect. First, it is difficult to see how decisions such as the Belmarsh Prison case55 that Tomkins favours would ever have come before the courts if his vision of judicial review were to prevail: there would be no HRA; the resolution of equality issues on which the case turned is just as difficult as proportionality, which he regards as off bounds; and

52

A Tomkins, ‘Readings of A v Secretary of State for the Home Department’ [2005] PL 259, 263.

53

Tomkins, n 30, 74-87.

54

Ibid 122-124, citing Council of Civil Service Unions v Minister for the Crown [1985] AC 374; R v

Shayler [2003] 1 AC 247; Secretary of State for the Home Department v Rehman [2003] 1 AC 153; R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067. See also A Tomkins, ‘Magna Carta, Crown and Colonies’ [2001] PL 571. 55

A v Secretary of State for the Home Department [2005] 2 AC 68.

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equality cases entail consideration of proportionality, as exemplified by the Belmarsh case itself. Second, there are analogous difficulties with cases that Tomkins criticizes because the courts were too deferential, since they would not have appeared on the judicial radar at all. They do not come close to the paradigm of the flouting of a specific rule laid down by Parliament that Tomkins regards as the legitimate preserve of judicial review. It is therefore decidedly odd to treat these decisions as a failure of legal constitutionalism because the courts were too deferential, when judicial review would not have been applicable on his vision,56 nor would review for violation of the HRA. It is moreover difficult to discern any foundation for review of the prerogative on Tomkins’ analysis. Furthermore, even if the prerogative were, as Tomkins advocates, to be placed on a statutory footing the discretion enjoyed pursuant to the prerogative would simply be

56

Consider three brief examples. First, CCSU, n 54, is criticized for recognizing too many exceptions to the

extension of judicial control over the prerogative, and hence as being too deferential. However to be consistent Tomkins should surely have disapproved of the decision for going too far: the courts had controlled the existence/extent of prerogative power for 300 years; CCSU extended judicial control to include manner of exercise of prerogative power, thereby subjecting it to rationality review and the like, and he believes such controls should not exist. Secondly, the Chagos islands litigation, which culminated in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, clearly involved issues concerning rationality review and legitimate expectations, which doctrines would not exist on Tomkins’ vision of judicial review. Thirdly, the same is true in relation to Rehman, n 54, since the regrettably light touch review in that case resulted from the fact that the House of Lords applied rationality and proportionality with so little rigour to the discretionary power, but Tomkins, as we have seen, does not believe that there should be such controls.

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replaced by a broad statutory discretion accorded to the relevant minister, and thus given Tomkins’ strictures about the limits of judicial review it is difficult to see how the courts would have any role in controlling its exercise. Third, the difficulties with Tomkins’ analysis are highlighted by the fact that the courts are ‘damned if they do’ and ‘damned if they don’t’. Thus, to take but one example, the courts are castigated as being unsuited to the balancing of issues that arose in cases such as Farrakhan, which are regarded as too complex for judicial determination, and involve value choices that should be left to the executive.57 They are also chided in equally robust terms for decisions such as Rehman and Shayler58 that are said to exhibit judicial failure to control government because the review was insufficiently searching. Legal constitutionalists might well agree that review in Rehman was too deferential. It is however difficult to see how Tomkins’ critique can be squared with his earlier argument concerning cases such as Farrakhan. Both types of case involve balancing of values, against the backdrop of an executive determination. If, as Tomkins maintains, the courts have no business intervening in the Farrakhan type of case it is not clear why these same arguments are not equally applicable to Rehman and other decisions where he criticizes the courts for being too reticent.

(ii) A Specific Response

57

Tomkins, n 30, 21.

58

Ibid 122-124.

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Tomkins might argue, by way of response, that his preferred limits on judicial review should be maintained, but that more extensive judicial review should be countenanced in certain particular situations, such as national security, or where those affected had no ‘voice’, such as immigrants, or vulnerable minorities. Such arguments have been considered by court-sceptics such as Bellamy,59 and there are precedents for such an approach, most famously in US jurisprudence.60 There is no difficulty in principle in acknowledging variable intensities of review, but there are real difficulties of applying this given the very limited judicial review countenanced by Tomkins. It is one thing to say that a recognized principle of judicial review should be applied with greater intensity to protect cases involving, for example, vulnerable minorities. It is quite another thing to posit this approach where there is no relevant doctrine to apply, because judicial review is conceived in the narrow terms demanded by Tomkins, and then nonetheless to ‘create’ a head of review that would apply to the vulnerable minority. It is a fortiori difficult to apply rights-based review more intensively to certain situations if the general theory of judicial review is premised on there being no HRA.

(iii) A General Response

59

Bellamy, n 9, 249-258.

60

United States v Carolene Products 304 US 144 (1938), 152-153, fn 4.

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Tomkins might alternatively seek to respond by deploying a more general argument. He might argue that judicial review to enhance the rule of law is legitimate, but only where the public authority has no authority to undertake the relevant action.61 It can be readily accepted that judicial review should be applicable in cases where the public body has no authority to undertake the act which is the subject matter of the subsequent litigation, as exemplified by Entick v Carrington.62 It does not however provide the justification for Tomkins’ thesis as to the limits of judicial review for the following reasons. First, the phrase ‘having legal authority to act’ is radically indeterminate. It could connote any of the following: 1) The government must be able to point to some statute or prerogative power enabling it to act. 2) The courts should only intervene to enforce a specific statutory precept. 3) The courts should only exercise judicial review over ‘jurisdiction narrowly defined’. This would then itself require further specification in order to make clear whether it embraces review for error of law as defined in the modern jurisprudence of Anisminic63 and Page,64 or whether it involves only preAnisminic conceptions of jurisdictional error. It would also have to be made clear

61

Adam Tomkins advanced this defence of his position in extended correspondence about this paper, hence

the analysis of this argument in this section of the chapter. 62

(1765) 19 St Tr 1029.

63

Anisminic Ltd v Foreign Compensation Commission. [1969] 2 AC 147.

64

R v Hull University Visitor, ex p Page [1993] AC 682.

22

whether there should be any review for error of fact. 4) The courts can in addition control for misuse of power/relevancy, which is defined to come within ‘having legal authority to act’. If this is included then it should be recognized that even if there were no rationality review/principles of legality then many such cases could be reconceptualized as involving relevancy/propriety of purpose etc. 5) The phrase ‘having legal authority to act’ could be interpreted so as to make compliance with all existing principles of legality a condition precedent for the lawfulness of governmental action. Courts have taken this stance on a number of occasions. The second difficulty flows from the first: given that the phrase ‘having legal authority to act’ is open to a plethora of different meanings, it is therefore necessary to provide some normative justification for the specific interpretation adopted. Thus if judicial review is to be very limited, premised on a narrow interpretation of ‘having legal authority to act’, then this must be justified in normative terms, not simply asserted as if it were a self-evident proposition. This must moreover be done being mindful of the fact that developed legal systems, whether common law or civil law, have principles of legality and also have some rights-based review within administrative law. Thirdly, if Tomkins believes that judicial review should be limited to cases where there is no legal authority to act narrowly defined, then not only must this be properly defended in normative terms, but there must be some fit/consistency between this proposition and the cases that are praised and condemned. Space precludes detailed analysis of this issue here. Suffice it to say for present purposes that none of the cases that

23

are criticized by Tomkins65 on the grounds that the courts were insufficiently searching in their application of judicial review were anywhere close to the simple paradigm of ‘having no legal authority to act’ as exemplified by Entick v Carrington.66 His critique must therefore have been premised on some broader meaning attributed to that phrase, the content of which is never made clear.

5. Political Constitutionalism

The argument that legal constitutionalists ignore other methods of ensuring accountability is mistaken, as will be seen below.67 A recurring feature of political constitutionalism is nonetheless the emphasis placed on non-judicial mechanisms for securing accountability: diminution in legal control can be compensated through increased non-legal checks. Thus it is not fortuitous that Tomkins and Bellamy seek to show that Parliament can, for example, exert control over legislation and the executive.68 Neither pretends that the position is perfect, but both are generally optimistic, while making suggestions for reform. Thus, for example, Tomkins proposes abolition of the prerogative, open

65

See above, ns 54-58.

66

(1765) 19 St Tr 1029.

67

See below, 00-00.

68

Bellamy, n 9, Chap 6; Tomkins, n 30, 124-131.

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government, abolition of the whip system, and abolition of the monarchy.69 There are two points to make in this regard. First, one may well question the assessment of the status quo, the extent to which Parliament exercises meaningful input into legislation and control over the executive. Tomkins is optimistic. True, he canvasses the worst case scenario, but dismisses it as overly pessimistic, citing but two brief examples of Parliamentary input in relation to terrorism legislation and the Iraq war. It is true that Parliament has recently flexed its muscles more than hitherto, but the reality is still that the government controls the planning of legislation, its drafting, and its passage through the House. Moreover, howsoever one regards the significance of recent advances made by Parliament in flexing its muscles, there is a real danger in divining the balance between legal and political constitutionalism based on recent developments, more especially because the general view among political scientists in the previous one hundred years was increasing executive domination over the legislature. It is also surprising that in the discussion as to whether Parliament can be regarded as the site of republican virtue and non-domination portrayed by Bellamy and Tomkins70 there is little mention of the countless reports by various select committees of Parliament, which highlight deficiencies in the legislative

69

Political constitutionalists can however disagree significantly about the desirability of particular reforms.

See, eg, on the issue of the party system, Bellamy, n 9, Chap 6; D Nicol, ‘Professor Tomkins’ House of Mavericks’ [2006] PL 467; A Tomkins, ‘Professor Tomkins’ House of Mavericks: A Reply’ [2007] PL 33. 70

A Tomkins has considered this issue elsewhere, see the thoughtful analysis in ‘What is Parliament for?’,

in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford: Hart, 2003), Chap 3.

25

process and in the accountability of the executive.71 Thus it is by no means clear that MPs would subscribe to the depiction of their role portrayed by Bellamy and Tomkins. The second point is different, but perhaps more important. The discussion concerning the way in which political constitutionalism might work relates to the legislative process and to a lesser extent to executive accountability. What it ignores is the rest of the administrative state, and the gap mirrors that in Tomkins’ historical analysis, where he failed to address the contribution of legal constitutionalism to the accountability of such bodies. Thus Tomkins’ four proposals would not have any impact on decisions made by ministers, agencies, prison governors, school governors, health boards, local authorities and the like. There is of course a wealth of valuable literature on non-judicial controls through the Ombudsman, complaints machinery, institutional design and the like. That does not alter the present point. If judicial review is radically curtailed then it is surely legitimate to inquire what ‘compensating’ quid pro quo in terms of control/accountability should flow from political constitutionalism. What precisely do you say to the great majority of applicants for judicial review against such bodies who would, if the Tomkins’ view were adopted, have no recourse to judicial review? They get no benefit from the Tomkins’ reforms, apart from open government. The political constitutionalist might say one or both of the following. He might say that we should put more faith in other checks on administrative wrongdoing, and that greater efforts to ensure newer/better non-legal controls will be made. Most legal constitutionalists are, as stated earlier, concerned with non-legal as well as legal mechanisms of control. This does not alter the fact that if one were to curtail

71

For a brief overview of some of this documentation, see, Craig, Administrative Law, n 29, Chaps 3, 22.

26

judicial review in the manner Tomkins’ desires then you had better be really sure that you have some compensating non-legal mechanisms to hand to fill the gap, an issue that Tomkins unfortunately does not address.72 The alternative response from the political constitutionalist would be that we should accept the contested decision because of the democratic credentials of the author. This however begs the question as to how far democratic credentials should serve to limit the traditional precepts of judicial review, an issue to which we will return below. It also fails to address the point because the extent to which bodies such as agencies, prison governors, school governors, health boards and the like have democratic credentials varies considerably. There is clearly a distinction between the existence of democratic legitimacy that inheres by virtue of the vote, and authority given by such a democratically elected body to an agency or institution that itself has no democratic credentials. Moreover even in relation to those who possess democratic legitimacy, such as ministers, there is the commonly accepted need for judicial oversight to ensure that they do not transgress the limits laid down by their democratic parent, the legislature.

6. The ‘Circumstances of Politics’

72

There are indeed further problems in this respect. Thus it is not readily apparent whether, for example,

Adam Tomkins would favour the Ombudsman being able to make determinations based on rationality/proportionality if such matters were excluded from judicial review. If the answer is in the affirmative then some reason has to be given as to why the Ombudsman should be able to do this when the courts are precluded from doing so. If the answer is in the negative, then there is a significant gap in protection as compared to the status quo.

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It is fitting to end this part of the discussion with some more general observations concerning the role of courts that underlie political constitutionalist discourse. A premise in the general literature is the ‘circumstances of politics’, the need to make collective decisions in a plural society in which people disagree not only as to perceptions of the good, but also as to the more fundamental precepts of justice on which society is founded. This important insight is a cornerstone of the argument against strong constitutional review and is also deployed in the discourse about non-constitutional review. The present focus will be on the latter. It should be recognized that this problem is not however peculiar to public law. The disagreement endemic within plural democratic societies concerning the more particular meaning to be ascribed to abstract concepts such as liberty, equality and security, is matched by analogous disagreement in private law. This is attested to by the vibrant debates about theory in, for example, contract, tort, restitution and crime, where commentators discuss the values that do and should underpin the subjects. It should also be acknowledged that courts in private law will routinely develop doctrine that is reflective of defensible, albeit contestable, normative assumptions and will often balance competing values. Consider some fundamentals in tort law. The premise of negligence liability is that to justify the shifting of loss from plaintiff to defendant the former must show fault caused by the latter, with the consequence that the risk of non-fault accidents lies with the plaintiff rather than the defendant, even where the defendant caused the loss. It will moreover be the courts that decide whether it is fair, just and reasonable to impose a duty of care, balancing a wide range of factors and values in reaching this determination. It will be the courts that will often decide whether strict

28

liability is appropriate. The very decision as to whether economic torts should be regarded as a series of specific nominate torts with differing conceptual foundations, or whether we should recognize a more general innominate tort, entails contestable assumptions as the purpose of the individual economic torts on which commentators can and do disagree. The same point can of course be made about other areas. Thus courts develop doctrine within criminal law that is premised on conceptions of moral responsibility and justifiable excuse. They mould contract law by considerations relating to matters such as consent, autonomy, bargain and the like, and it is not self-evident that the degree of judicial discretion in deciding whether there is consideration in contract, or whether a contract term should be regarded as unfair, is ‘less’ than that involved in public law rationality review. We need to be mindful of this when considering the judicial role within administrative law. If the premise against judicial review is that courts should not in general be involved in cases where there are contentious value assumptions or difficult balancing exercises then the premise is unsustainable, since it would destroy adjudication across large areas of private as well as public law. It is equally unsustainable to argue in general that it is improper for the courts to develop an area of the law through analogical reasoning, although the courts may on occasion decide that certain developments are best left to the legislature. The premise might alternatively be that courts in public law cases should not intervene through doctrine that involves contentious value assumptions or difficult balancing, because it will thereby trespass on the preserve of the political arm of government, thereby providing the foundation for very limited judicial review of the kind

29

advocated by Tomkins. This argument rests however on a series of questionable assumptions. It presumes that there are aspects of judicial review that do not involve evaluative judgment, and/or balancing by the courts. It may be possible to devise such a system, but only at the cost of emasculating judicial doctrine, by restricting judicial review to clear cases where a public body has flouted a specific rule laid down by Parliament, to the exclusion of other heads of review, and even then as we have seen the boundary line between the category of case that Tomkins is willing to countenance and those that he is not is unclear. The argument also presumes that when courts apply doctrine that requires evaluative judgment on issues on which we might disagree, or undertake balancing, that this per se trespasses on the preserve of the political branch. This however merely presumes the answer to the question in issue. It should moreover not be forgotten that judicial review is built on certain assumptions concerning the relationship between the legal and political branch of government, as exemplified by the generally accepted proscription on judicial substitution of judgment for that of the administration in relation to the merits of discretionary power. This necessitates the deployment of criteria such as rationality or proportionality, which, it can be accepted, allow room for judicial evaluation, but so too do many of the evaluative criteria used in private law. The argument that the courts in public law should be wary of extending doctrine can in one sense be regarded as a truism, which can apply to any area of the law. Consider, for example, Tomkins’ argument that it was unwarranted for the courts to

30

‘invent’ the constitutional right of access to court.73 There, were, however clearly some precedents for this proposition, since it provides the foundation for the case law on privative clauses. The rationale for according the right this constitutional status is compelling, since it is in many ways ‘the right of rights’ as far as the protections provided by the legal system are concerned: if an individual has no access to court then by definition the procedural and substantive legal protections will be to no avail.

C. ADMINISTRATIVE LAW: THE MODERATE VIEW

We can now consider the critique of judicial review offered by Tom Poole in a challenging series of articles.74 He assigns the generic label common law constitutionalism, to capture the views of a range of theorists, including Sir John Laws, Allan, Oliver, Jowell and the present author. Poole discerns a number of related propositions that constitute common law constitutionalism. These are that: a political community is ordered according to set of fundamental values; political decision-making is or ought to be a matter of discovering what fundamental values require in particular cases; the common law is the primary repository of the fundamental values of the political community; ordinary politics does not necessarily connect with fundamental values; public law therefore consists of a set of

73

Tomkins, n 30, 23.

74

T Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23

OJLS 453; ‘Questioning Common Law Constitutionalism’ (2005) 25 LS 142; ‘Legitimacy, Rights and Judicial Review’ (2005) 25 OJLS 697.

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higher-order principles and rights; and decision-making in judicial review is or ought to be value oriented. He articulates as his preferred vision of public law one that focuses on legitimacy. In instrumental terms, this is said to connote the idea that judicial review is justified because of the fallibility in government decision-making. In non-instrumental terms, it is said to capture the idea of trust in government. The force of these arguments will be considered below. Poole does not question the legitimacy of non-constitutional review and has argued for robust review in the context of terrorism/national security.75 The reason for considering his arguments here is that while Poole acknowledges difficulties with political constitutionalism there is much in his critique of legal or common law constitutionalism that connects with political constitutionalist thought. He contends that judicial review does not fit with the vision of legal constitutionalists. Thus he maintains that participation in adjudication is ill-adapted to consideration of a range of competing views; that judicial review is ill-suited for polycentric disputes; that the arguments in judicial review cases are relatively Spartan when compared to political debate; that judicial review in cases concerned with rights does not typically address fundamental values, but is more commonly concerned with second order considerations such as the intensity of review. These arguments can be addressed in turn.

75

T Poole. ‘Courts and Conditions of Uncertainty in “Times of Crisis”’ [2008] PL 234.

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1. Participation, Consideration of Competing Values and Reason Giving

Poole argues that judicial review is essentially adjudicative and bipolar, and hence is illadapted to consideration of competing points of view. It cannot therefore be a central forum for deliberating about fundamental values and cannot match the republican model of active citizenship. There are three related points in this respect. First, this argument elides participation in the initial agency decision, with judicial review before the court. Some legal constitutionalists favour participatory rights before the initial agency, especially for rule-making, precisely because it will enhance the republican ideal of deliberative discourse. They do not claim that this is the present law, but there is no reason why such development should not occur, and indeed participatory initiatives have been developed by the political branch of government.76 Secondly, most legal constitutionalists do not claim that judicial review before the court presently comports with a model of republican discourse. It is true that Allan has said something to this effect, but his general line is against the idea of broadening standing.77 Other legal constitutionalists argue that broadened participatory and intervention rights before the initial decision-maker, combined with relatively liberal standing and intervention rights before the courts, will enhance the deliberative, republican aspects of decision-making, albeit within the parameters imposed by being within a judicial forum.

76

Craig, Administrative Law, n 29, Chap 22.

77

TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford: Oxford University

Press, 2001), Chap 6.

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Thirdly, Poole’s argument is premised upon how decisions are made within the political forum, this being full consideration of competing views on which the contested decision is made. It is certainly true that a full debate on primary legislation with detailed consideration of competing values cannot be matched elsewhere.78 This is to be lauded and legal constitutionalists would do so too. It is equally clear that much primary legislation does not receive this considered analysis: Parliament may not realize all rights-based issues raised by the legislation; time constraints may mean that any such consideration is brief; it may only occur within a standing or select committee; and the time available to address the views of the Joint Committee on Human Rights may be constrained.79 These problems are far greater for statutory instruments, which may receive little parliamentary scrutiny, and little consideration of competing views.80 The problems become more difficult yet again when we consider decision-making by agencies, ministers, prison governors, health boards and the like. Neither Poole nor Tomkins take account of the literature on administrative decision-making, a dominant theme of which is incrementalism: a full range of competing considerations is rarely taken into account because of practical, epistemic and political constraints.81 The bottom line is that prior to a case coming to court we have scant idea of the range of competing

78

J Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999). See also n 90.

79

D Feldman, ‘Parliamentary Scrutiny of Legislation and Human Rights’ [2002] PL 323.

80

Craig, Administrative Law, n 29, Chap 22.

81

C Lindblom, ‘The Science of Muddling Through’ (1959) 19 Pub Adm Rev 79; D Braybrooke and CE

Lindblom, A Strategy of Decision, Policy Evaluation as a Social Process (London: Free Press, 1963).

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values taken into account. Some decisions may be impeccably reasoned. Others, as is apparent from past case law, fall a long way short of full consideration of competing values, even when taking account of practical constraints on decision-making. It is moreover somewhat paradoxical that it was Poole82 who helped to persuade the House of Lords in Denbigh83 that certain public bodies did not have to give systematic consideration to HRA issues, because it would be too burdensome.84 There may well be force in Poole’s view adopted in Denbigh. This approach nonetheless diminishes the extent to which the primary decision-maker has to provide explicit consideration of the values under the HRA, and thereby significantly diminishes his argument that courts will provide less full consideration to those competing values than the primary decision-maker.85

2. Polycentricity and the Focus of Judicial Review

Poole argues that judicial review is unsuited to polycentric disputes, which will often better be considered in political terms. Three comments are warranted.

82

T Poole, ‘Of Headscarves and Heresies: the Denbigh High School case and Public Authority Decision-

making under the Human Rights Act’ [2005] PL 685. 83

R (on the application of Begum) v Denbigh High School Governors [2007] 1 AC 100.

84

If they do not the court may however be less inclined to show deference, Belfast City Council v Miss

Behavin’ Ltd [2007] 1 WLR 1420. 85

See however T Poole, ‘The Reformation of Administrative Law’ [2009] CLJ 142, for a more detailed

working through of the implications of his approach in this respect.

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First, legal constitutionalists accept that courts are limited in their capacity to deal with polycentric issues. The courts have recognized this too in certain cases.86 Secondly, there is nonetheless sophisticated work elaborating the factors that should affect the intensity of review in cases concerned with resource allocation and social and economic rights.87 The fact that a dispute is in some way polycentric does not therefore signal that it is or should be a no go area for the courts.88 Thirdly, it should not be assumed that the political process will conform to some perfect deliberative ideal when such matters are considered. There is, as mentioned above, much literature about bureaucratic decisionmaking, which emphasises its incremental nature and the limited capacity for more general overview.89 This is moreover quite apart from the literature on the political process at Westminster, with executive domination of the legislature.

3. The Nature of Argument in Judicial Review

86

R v Cambridge Health Authority, ex p B [1995] 2 All ER 129; R (on the application of Walker) v Parole

Board, R (on the application of Wells) v Parole Board [2007] EWHC 1835. 87

S Fredman, ‘Social, Economic and Cultural Rights’, in D Feldman (ed), English Public Law (Oxford:

Oxford University Press, 2004), Chap 10; K Syrett, ‘Opening Eyes to the Reality of Scarce Health Care Resources?’ [2006] PL 664; J King, ‘The Justiciability of Resource Allocation’ (2007) 70 MLR 197; A Pillay ‘Courts, Variable Standards of Review and Resource Allocation: Developing a Model for the Enforcement of Social and Economic Rights’ [2007] EHRLR 616; C Newdick, ‘Judicial Review: LowPriority Treatment and Exceptional Case Review’ [2007] Med LR 236; E Palmer, Judicial Review, SocioEconomic Rights and the Human Rights Act (Oxford: Hart, 2007). 88

J King, ‘The Pervasiveness of Polycentricity’ [2008] PL 101.

89

N 81.

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Poole contends that argument in judicial review is relatively Spartan compared to the richness of political debate, and that it cannot therefore conform to a deliberative ideal. Two comments are in order. First, it can be accepted that there are differences between judicial review and political argument. The former will be constrained by the need for argument to be fitted into an established head of review, and by the fact that the grounds of review are premised on assumptions about the relationship between courts and primary decisionmakers, such as the injunction against substitution of judgment on matters of discretion assigned to the latter. Secondly, this does not however mean that judicial consideration of an issue will necessarily be less rich than in the political process.90 Thus when legislation is passed there may well have been scant consideration as to whether a particular provision conflicts with public law precepts. Similarly when an executive decision differentiates between groups the extent to which there has been searching analysis of the justification for the differential treatment may well vary. These limitations may also inform decisions

90

J Waldron, ‘Judges as Moral Reasoners’ (2009) 7 I-CON 2 has challenged the assumption that judges

superior capacity at moral reasoning provides a justification for strong constitutional review over primary legislation. Suffice it to say for the purposes of the present paper that: firstly Waldron, n 26, 79 acknowledges that his argument is premised on a normative ideal as to how the legislature acting at its best might approach moral matters, and that in many instances this is not matched by actual performance; and secondly, my argument in this paper is not in any event directed towards strong constitutional review of primary legislation, but rather the extent to which for purposes of administrative law judicial review, consideration of the relevant issues of principle by a court will be less rich than that undertaken by the legislature, executive, or the plethora of other bodies that constitute the administrative state.

37

made by the plethora of other bodies that constitute the administrative state. If such issues are adjudicated before the courts there may be more in-depth scrutiny of the justificatory arguments for the contested provision than occurred within the political process. Insofar as the matter has been thought through rigorously by the primary decision-maker, this will properly affect the incidence of judicial review.

4. The Limited Relevance of Fundamental Values

Poole argues that judges decide cases, even those concerned with rights, not by reflecting what fundamental values require, but by focusing on second-order considerations relating to the standard of judicial review. This is said to undermine the legal constitutionalists’ claim that public law should be conceived in terms of rights or fundamental values. The premise to Poole’s argument is that any consideration of matters such as the appropriate intensity of review constitutes a diminution of the precepts of legal constitutionalism. Thus any departure from substitution of judgment by the reviewing court compromises a rights-based model of review, such that when courts consider the meaning of rationality or proportionality, or deference to the primary decision-maker, this is somehow at odds with the legal constitutionalist view. This argument is wrong. It is true that legal constitutionalists take different views as to when, for example, deference should be accorded. This does not however mean that engagement with this issue is problematic for legal constitutionalism.91 It is, to the

91

See, e.g., R (on the application of International Transport Roth GmbH) v Secretary of State for the Home

Department [2003] QB 728. [83]-[87], Laws LJ; J Jowell, ‘Judicial Deference and Human Rights: A

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contrary, natural for courts to focus on the standard of review, as well as the meaning of the contested right, since the former may be a condition precedent to determination of the latter. Discourse concerning the standard of review is central within a regime of judicial review committed to rights, legality and the abuse of power, or rights and fundamental values, since the standard of review, whatsoever it may be, will encapsulate certain important values indicative of the relationship between courts and the initial decisionmaker. Those values have always been central to legal constitutionalist thought and case law and rightly so. There is therefore nothing contradictory about taking account of institutional considerations in a rights-based approach to adjudication. It is clear moreover that there are many instances where the courts substitute judgment on the meaning of speech, assembly, deprivation of liberty or the like, where the focus will be squarely on the meaning of the contested right. This is the very material considered in courses concerned with human rights.92 In other instances, notably where the public body contends that limitation of the right was warranted, the courts will also consider, when addressing proportionality, the proper limits of their control in relation to the political branch of government, although even in such cases the courts will often

Question of Competence’, in P Craig and R Rawlings (eds), Law and Administration in Europe, Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003), Chap 4; Craig, n 29, 591-606. 92

See, e.g., Jacobs and White, European Convention on Human Rights (Oxford: Oxford University Press,

4th ed, C Ovey and R White, 2006); M Janis, RS Kay and AW Bradley, European Human Rights Law: Text and Materials (Oxford: Oxford University Press, 3rd ed, 2008); AR Mowbray, Cases and Materials on the European Convention on Human Rights (Oxford: Oxford University Press, 2nd ed, 2007).

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make some determination about the meaning of the contested right. Both aspects are important within a model of review based on rights, legality and abuse of power.

D. LEGAL CONSTITUTIONALISM REVISITED

It is fitting to continue this paper by presenting a picture of moderate legal constitutionalism. This picture is in certain respects more ‘mundane’ than some of the more radical variants, although this is, it will be argued, a ‘plus’ rather than a ‘minus’. This picture of legal constitutionalism best captures what the courts have been doing and fits more broadly with the nature of common law reasoning. The approach is historical and conceptual. It is grounded in what the courts have actually done, not in some hypothetical construct concerning what they might do. Critics of legal constitutionalism have not unnaturally focused on claims made in some of the secondary literature. Assessment thereof should however surely start from actual legal doctrine. Three preliminaries should be mentioned here. The subsequent analysis is not premised on the existence of some ancient common law constitution.93 It makes no assumptions as to the doctrinal commonalities or differences between public and private law. There is nothing in what follows that is dependent upon the ultra vires debate. My own position in that respect is clear, but one who believed that legislative intent must legitimate judicial review could agree with what follows, subject to the caveat that it all has to be cloaked with some general legislative intent.

93

J Goldsworthy, ‘The Myth of Common Law Constitution’, in D Edlin, (ed), Common Law Theory

(Cambridge: Cambridge University Press, 2007), 204-236.

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1. Conceptual Preliminaries: Three Levels

The common law, whether dealing with contract, tort, restitution or public law, develops at three interconnected levels. There will, firstly, be some imperative for judicial involvement in the area, such as the need for legal rules to deal with delictual harm, the regulation of consensual relations and the like. The objectives served by these rules may be eclectic, and may alter over time. These will be reflected in principles, which shape the applicable legal doctrine. The second level is the fashioning of particular categories of legal doctrine applicable within the salient area, doctrines such as mistake, misrepresentation, illegality in contract, or negligence, nuisance, defamation in tort. These legal doctrines will be developed because they serve the background imperatives and principles that underlie that area of the law. This doctrine is perforce based on certain assumptions about the important values within that legal sphere, whatsoever those might be. In that sense the values embodied within legal doctrine will be regarded as fundamental, when viewed in the light of the principles and objectives served by that body of law. The third level concerns the more detailed meaning of the doctrinal areas established. Thus there will be further questions as to the nature of liability for nuisance, the type of defences that should be available, and the like. Resolution of these issues will necessarily involve an admixture of normative and practical considerations, with assumptions being made concerning conduct that should give rise to legal responsibility, and the moral considerations that provide the foundation for an excuse or defence.

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2. Conceptual Preliminaries: Three Features

Three features of such common law development are noteworthy. First, it is incremental and analogical by nature. This is true not only for case law, but also for the concepts that inform the levels adumbrated above. These concepts do not emerge ‘perfect’ and fullyformed. They are fashioned, re-fashioned, developed, altered and changed over time. The courts are moreover likely to proceed cautiously for the reasons articulated in the incrementalism literature and by Sunstein in his work on judicial minimalism and incompletely theorized agreements.94 Secondly, the relationship between the three levels is symbiotic: developments at one level may well impact on the others. Thus articulation of categories of legal doctrine at the second level may well prompt reconsideration of the overarching values to be served by that body of law as a whole. Or more detailed consideration of particular legal doctrine at the third level may be the catalyst for rethinking the very division between the categories of legal doctrine that comprise the subject. Thirdly, the content of the three levels evolves, it is not static. The very values that underpin a body of the law will change over time. So too will the categories of legal doctrine that comprise the second level, or their more detailed meaning, the third level. The changes may come from within the common law itself, as exemplified by the

94

C Sunstein, One Case at a Time, Judicial Minimalism on the Supreme Court (Cambridge, Mass: Harvard

University Press, 1999); C Sunstein, ‘Incompletely Theorized Agreements in Constitutional Law’, Chicago, Public Law and Legal Theory Working Paper No 147.

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emergence of duress and unconscionability, or they may of course be the result of legislative intervention.

3. Administrative Law: Foundations

The preceding framework facilitates historical understanding of the nature and evolution of legal constitutionalism in administrative law and judicial review. When viewed from an historical perspective, the most basic rationale for judicial review was the need to render public power accountable, which connoted both that the relevant institution complied with conditions laid down in the enabling grant of power, and with certain precepts of good governance, thereby enhancing legitimacy.95 This was the imperative for judicial involvement. It constituted the background objective and value at the first level identified above. Subsequent development of judicial review refined this basic precept, as will become apparent from the ensuing analysis. A political constitutionalist might seek to deny wholly this rationale for judicial intervention. It is then incumbent on such a person to present such arguments, although it has not to my knowledge been done. It would be a daunting task, given that a very similar rationale is found in pretty much all developed legal systems. While ‘is’ does not make ‘ought’, it reinforces the conclusion that the basic normative premise for judicial review

95

SA de Smith, ‘The Prerogative Writs’ [1951] CLJ 40, and ‘Wrongs and Remedies in Administrative

Law’ (1952) MLR 189; L Jaffe and E Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 LQR 345; EG Henderson, Foundations of English Administrative Law (Cambridge, Mass: Harvard University Press, 1963); A Rubinstein, Jurisdiction and Illegality (Oxford: Oxford University Press, 1975); P Craig, ‘Ultra Vires and the Foundations of Judicial Review’ [1998] CLJ 63

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in the UK is plausibly grounded. Thus if political constitutionalists wish to challenge the legal status quo then it must be at the second and third levels, concerning the doctrinal implications drawn from the basic premise. It is to these that we now turn.

4. Administrative Law: Doctrine

It is common for criticism to be voiced against legal constitutionalism and judicial review on the ground that the doctrine is never justified, except through abstract concepts such as natural law, public reason or fundamental values. The historical development of doctrine rests however on more secure, specific and discrete foundations. This does not mean that the doctrinal categories are value-free, nor does it mean that they are premised on some universal theory of value. What it does mean is that the existence of the doctrinal categories, and their more specific meaning, levels two and three, are the result of reasoned analysis that draws on, and gives more concrete expression to, the foundational ideas that underlie judicial review explicated above. Such doctrinal development is incremental and symbiotic in the manner described above and thus may well lead to refinement/modification of the foundational precepts that underlie this body of law.

(i) Jurisdictional Control, Misuse of Power and Invalidity

Consider in this respect certain core doctrines of judicial review that constitute what was termed the second level. It is axiomatic that if the courts are to render public power accountable then there must be legal doctrine that serves to keep the relevant body within its assigned sphere of power. It is equally axiomatic that there must be controls to

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determine whether the power has been used for an improper purpose. Such legal doctrine is fundamental in the sense that if we are to have any body of law to check public power, then there must be doctrinal categories of this kind. This is equally true for the law dealing with the consequences of invalidity, which is grounded on the fundamental precept that where a public body takes a decision that is invalid it should, in principle, be retrospectively void. It is therefore unsurprising that these doctrinal categories have existed from the seventeenth century, and have been refined since then. This still leaves a plethora of issues at the third level, concerning the more detailed content of these doctrinal categories, as exemplified by the debates concerning the criterion for jurisdictional review, the test for misuse of power where the public body pursues multiple purposes or the qualifications that should be made to retrospective nullity. Resolution of these issues will perforce entail normative assumptions, and legal constitutionalists may well disagree about the ‘best solution’. Analogous debates occur in all areas to which the common law applies.

(ii) Principles of Legality

The courts also developed principles of legality that took account of moral precepts. Three brief examples can be given. A prime instance is natural justice. It was central to the objective of rendering public power accountable: in instrumental terms decisions were more likely to be correct if people were heard before the decision was taken; in non-instrumental terms it was part of what it means to be a person to be heard before the state took action against the

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individual.96 Natural justice is therefore reflective of the twin precepts underlying judicial review identified above. It was warranted both to ensure that public bodies remained within their assigned area, since a correct decision was more likely if a person was heard before it was taken, and it also functioned as a principle of legitimate good governance, as reflected in the non-instrumental rationale for natural justice. Another less well known principle of legality is that public or quasi-public bodies with monopoly power could charge no more than a reasonable price.97 The principled reasoning in the seminal cases was posited on grounds that were part economic, and part concerned with precepts of good governance that should be demanded from bodies ‘imbued with a public interest’, given their de facto or de jure monopoly power. The third example is legitimate expectations. Its reception neatly illustrates the process of common law evolution adumbrated above. There was, prior to Coughlan,98 judicial disagreement as to the desirability of this doctrine.99 This was resolved in Coughlan. The court made a principled argument for legitimate expectations, and

96

JL Mashaw, Due Process in the Administrative State (New Haven: Yale University Press, 1985); DJ

Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford: Oxford University Press, 1996). 97

See, e.g., Allnutt v Inglis (1810) 12 East 527; Bolt v Stennett (1800) 8 TR 606; Gard v Callard (1817) 6

M & S 69; Wright v Bruister (1832) 4 B & Ald 116; P Craig, ‘Constitutions, Property and Regulation’ [1991] PL 538. 98

R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.

99

Craig, n 29, Chap. 20.

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bolstered it by reasoning analogically from earlier case law.100 Recognition of legitimate expectations as a discrete doctrinal category was premised on certain normative assumptions, including fairness, reliance, trust in government and equality. Subsequent case law has refined the concept. The fact that such doctrinal categories were shaped by normative and moral considerations is neither surprising nor illegitimate, and the same occurs when categories are forged in private law. It does not mean that we should simply accept any such judicial evaluation. The justification for the relevant category must rest on the strength of the normative argument, viewed against the objectives and values of the overall area.

(iii) Discretionary Power

Consider now a different doctrinal category within judicial review, the law relating to control of discretionary power. The courts recognized that the decision-maker had been given discretionary power by Parliament and therefore that the courts should not substitute judgment on the merits. They recognized also that legal doctrine should take account of the fact that some grantees of such power had some democratic mandate, as exemplified by ministers and local authorities. The judicial response might in theory have been to decline to intervene. This was not the path chosen. Some legal intervention was deemed warranted because of the twin precepts that underpin judicial review identified above: the imperative of

100

HTV v Price Commission [1976] ICR 170; R v Inland Revenue Commissioners, ex p Preston [1985] AC

835 ; R v Inland Revenue Commissioners, ex p MFK Underwriting Agencies Ltd [1990] 1 WLR 1545.

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checking that the discretionary power was exercised in accord with the enabling legislation, plus the belief that good governance demanded some judicial oversight over choices made by the administration. The result was limited rationality review. There is no doubt that rationality review accords the judiciary a measure of discretion, that the meaning ascribed to rationality has altered over time, and that there is debate as to the meaning that the term ought to bear.101 These debates, which include the choice between rationality and proportionality, exemplify the discussion that commonly occurs in any body of law at what was termed the third level, viz, the more particular meaning to be accorded to a doctrinal category within administrative law. The reality is nonetheless that if some control over discretionary power is warranted for the preceding reasons, then it will perforce be undertaken through criteria such as rationality or proportionality, which by their very nature allow for differences of interpretation. It is for this very reason that some commentators, myself included, believe that proportionality is to be preferred because it provides a more structured form of inquiry that enhances both administrative and judicial accountability. A political constitutionalist such as Tomkins may well believe that the costs of such control in terms of judicial discretion outweigh any benefits, but, as we have seen, that argument is premised on certain more contestable assumptions about what courts do and what they should do. It is moreover worthy of note that pretty much all developed legal systems

101

R v Chief Constable of Sussex, ex p International Trader's Ferry Ltd [1999] 2 AC 418, 452; R v

Secretary of State for the Home Department, ex p Daly [2001] 2 AC 532, 549; A Le Sueur, ‘The Rise and Ruin of Unreasonableness?’ [2005] JR 32; Craig, n 29, Chap 19.

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exercise some form of rationality, proportionality or means-ends scrutiny over the exercise of discretionary power, for the same kinds of reasons as articulated above.

(iv) Rights and Legality

The judicial recognition of rights within judicial review prior to the HRA is well-known. The existence of rights increased the intensity of rationality review;102 legislation was interpreted with a strong presumption that it was not intended to interfere with rights;103 and the courts held that Convention rights were embedded in the common law.104 These developments were regarded as controversial by some political constitutionalists.105 They were court-sceptic and opposed to expansion of judicial review; some were rights-sceptics; they regarded balancing in such cases as problematic; and they were concerned by expansive claims concerning review in the secondary literature. These concerns should be acknowledged. The judicial decision to recognize rights in the preceding ways was not value free, but the reality is that there is no neutrality to be had. Thus the political constitutionalists’ objections grounded in either court-scepticism and/or rights-scepticism are every bit as value-laden as the opposing

102

R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696; R v Ministry of Defence,

ex p Smith. 103

R v Secretary of State for the Home Department, ex p Simms & O’ Brien [2000] 2 AC 115; R v Lord

Chancellor, ex p Witham [1998] QB 575. 104

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534.

105

Tomkins, n 30, 18-25; JAG Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159.

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views. Positive argument for the judicial developments can be briefly presented as follows. If the courts apply rationality review to control discretionary power, there is good reason for varying its intensity depending on the affected interest. It makes no sense in normative terms to assume that a relatively trivial interest is of the same import as an interest that is objectively more significant, indeed the very statement is a contradiction in terms. Treating different interests in the same way for rationality review, even though they differed in importance, embodied a normative value judgment, just as much as the contrary position, it just happened to be a bad one. It was therefore perfectly defensible for the courts to vary the intensity of rationality review. This requires evaluation of the importance of the interest, and whether it should be recognized as a right, in the manner explicated by, for example, MacCormick and Raz.106 Analogous arguments are applicable to the interpretative presumption that flows from Simms107 and Witham.108 Statutory interpretation is not value-free. The courts have always read legislation subject to various presumptions.109 Viewed from this perspective, the interpretative presumption in the preceding cases is not novel. The proposition that statute will be read so as not to interfere with rights unless Parliament has made clear its

106

DN MacCormick, ‘Rights in Legislation’, in PMS Hacker and J Raz, Law, Morality and Society, Essays

in Honour of HLA Hart (Oxford: Clarendon Press, 1977), Chap 11; J Raz, The Morality of Freedom (Clarendon Press, 1986). 107

N 103.

108

N 103.

109

Bennion on Statutory Interpretation (London: Lexis,Nexis 5th ed, 2008).

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intent to do so, is normatively sound both because of the importance of the interest that has been denominated as a right, and for the reasons powerfully expressed by Lord Hoffmann, viz that Parliament should be mindful of such incursions and accept the political cost of doing so by making its intent explicit.110 The third development, signalled in Derbyshire,111 viz that Convention rights were to be regarded as embedded in the common law, was potentially the most farreaching. It is therefore interesting to reflect on its legitimacy. While much development in administrative law was remedy-driven, the courts nonetheless had explicit regard for some rights, such as the right to vote, and most notably property rights. Rights-talk was not therefore absent from our legal heritage, but became obscured by the Diceyan formulation of negative residual liberties, rather than rights. There was however always a tension in this characterization. It carried a descriptive connotation, that the scope of, for example, your freedom of speech was the result of the aggregate limits placed thereon by statute or common law. It nonetheless also embodied the normative recognition that the relevant interests were indeed liberties. Viewed from this perspective the change wrought by Derbyshire was significant, but less dramatic than initially perceived. The real importance of the change to talking openly of rights was that it signified both that duties could flow from the rights and that any limitations of the rights would not simply be acknowledged, but be rigorously scrutinized.

110

Simms, n 103.

111

N 104.

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(v) The HRA

The HRA has brought about a significant re-orientation of judicial review, although there is still continuing debate about its effect.112 It has been central in the shift towards a culture of justification,113 and has increased the rights-based focus of judicial review.114 The HRA is relevant in three respects for this paper. First, the HRA has the imprimatur of the democratically elected legislature. There are court-sceptics and rights-sceptics, who are opposed to such legislation. The HRA does however have democratic justification, as highlighted above. Secondly, the HRA necessarily means that the courts adjudicate on complex issues concerning rights and the balancing thereof. How they should undertake those tasks is debated both within the judiciary and academia. The fundamental insight from political constitutionalist thought, concerning the prevalence of disagreement as to the meaning of particular rights, should be taken into account within HRA adjudication.115

112

Compare KD Ewing and J-C Tham, ‘The Continuing Futility of the Human Rights Act’ [2008] PL 668,

and A Kavanagh, ‘Judging the Judges under the Human Rights Act 1998: Deference, Disillusionment and the ‘War on Terror’’ [2009] PL 287. 113

D Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’, in M Taggart (ed), The

Province of Administrative Law (Oxford: Hart, 1997), Chap 13; M Taggart, ‘The Tub of Public Law’, in D Dyzenhaus (ed), The Unity of Public Law (Oxford: Hart, 2004), Chap 17. 114

J Jowell, ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ [2000] PL 671; J Jowell,

‘Parliamentary Sovereignty under the New Constitutional Hypothesis’ [2006] PL 562. 115

Craig, n 29, 585-607.

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Thirdly, in structural terms the HRA constitutes an addition to the pre-existing body of doctrine, through legislative intervention rather than common law development. It nonetheless impacts upon our perceptions as to the aims and values of administrative law, in the symbiotic manner noted earlier. The HRA has thus refined the idea of accountable and legitimate government that constituted the foundation of judicial review, by enhancing the rights-based component, which necessarily brings into sharper focus the concepts of autonomy, equality, dignity and the like that underlie rights.

5. Administrative Law Doctrine and Legitimacy

We have seen that Poole’s preferred foundational principle for administrative law is legitimacy, which he sees as distinct from the common perception of judicial review.116 Legitimacy is important, but it is not distinct from more traditional approaches to judicial review, nor is it distinct from moderate legal constitutionalism, for the following reasons. Values and legitimacy are intimately linked, which is why legitimacy has always been a feature of legal constitutionalism and properly so. There is nothing new in this respect, nor is there anything antithetical between the role of values as explicated above and below, and legitimacy. The very idea of legitimate government is predicated on assumptions about fundamental values that inform our considered judgment as to whether a polity is legitimate. This is equally true in relation to specific public law precepts. Thus the conclusion that deciding without a hearing is illegitimate is grounded on assumptions about the instrumental and non-instrumental values served by natural justice.

116

Poole, ‘Legitimacy’, n 74.

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The intimate connection between legitimacy and values is readily apparent in relation to process, output and institutional legitimacy. The causality is that legitimacy is expressive of conclusions based on the values regarded as relevant to the inquiry. Thus process legitimacy will reflect certain normative assumptions as to, for example, ‘process writ large’, electoral representation, constituency boundaries and the like, and ‘process writ small’, who should be entitled to be heard, or participate in agency rulemaking. Conclusions as to output legitimacy will reflect certain values concerning, for example, the distributive justice entailed in a tax regime, whether the burdens placed on an individual by an executive decision are proportionate, or whether limitations of a right are warranted. Institutional legitimacy captures the idea that courts are reviewing governmental decisions, which is reflected in the injunction against judicial substitution of judgment of discretionary power, and in the case law on deference under the HRA.117 The difficulty of disaggregating values and legitimacy is further apparent in relation to rights. Rights can be seen as enhancing legitimate government, this is standard fare within legal constitutionalism, and exemplifies the connection between values and legitimacy adumbrated above. Poole however wishes to ground rights in terms of legitimacy without the interposition of fundamental or deontological values cast in terms of autonomy, dignity and the like, preferring to base rights on empirical generalizations founded ultimately in mistrust. This is however problematic, since it becomes apparent

117

See, e.g., Ns. 83-84; Alconbury Developments Ltd) v Secretary of State for the Environment, Transport

and the Regions [2003] 2 AC 295; Huang v Secretary of State for the Home Department [2007] 2 AC 167; Regina (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312.

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that the precepts of autonomy, dignity, liberty etc that have been purportedly excluded from the analysis, nonetheless re-enter and inform any conclusion by the ‘side-door’.118

E. MODERATE LEGAL CONSTITUTIONALISM, POLITICS AND POLITICAL CONSTITUTIONALISM: I

There are a number of points that should be emphasized concerning the relationship between moderate legal constitutionalism, politics and political constitutionalism. First, there is nothing within moderate legal constitutionalism, or within legal constitutionalism more generally, that denies the significance of non-judicial methods of accountability. Legal constitutionalists deal with issues of accountability and legitimacy quite independently of judicial review.119 There is no sense in which they think that courts are the only relevant players when thinking about constitutionalism. Nor is there any inconsistency in maintaining that judicial review is one component in the search for

118

To take but one example: whether governmental action leads to ‘intolerable results’, Poole,

‘Legitimacy’, n 74, 722, cannot be answered without consideration, explicitly or implicitly, of the concepts of liberty, equality or autonomy that are relevant to the particular case. 119

See, e.g., J Jowell, Law and Bureaucracy, Administrative Discretion and the Limits of Legal Action

(New York: Dunellen, 1975); J Jowell and D Oliver (eds), The Changing Constitution (Oxford University Press, 6th ed, 2007); D Oliver, Government in the United Kingdom: The Search for Accountability, Effectiveness and Citizenship (Milton Keynes: Open University Press, 1991); D Oliver, Constitutional Reform in the UK (Oxford: Oxford University Press, 2003); D Oliver and G Drewry, Public Service Reforms: Issues of Accountability and Public Law (London: Pinter, 1996); P Craig, Administrative Law (London: Sweet & Maxwell, 6th ed, 2008), Chaps 2-11; P Craig, EU Administrative Law (Oxford: Oxford University Press, 2006), Chaps 1-7.

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accountability and legitimacy, while being aware of the importance of institutional design, political controls, internal agency organization and the plethora of other matters that these and other authors have written about. This is not a zero sum game whereby focus on judicial review implies a lack of concern with other mechanisms for accountability and legitimacy. Secondly, there is nothing in moderate legal constitutionalism to suggest that the courts always get it right, and that the political process always gets it wrong; nor is it premised on some ‘whig version’ of legal history. Courts in every legal system make judgments that are felt to be regrettable, and this can happen in all fields of law. Thirdly, there is nothing within moderate legal constitutionalism that denies the important contribution made by the political process to fundamental values or valuable societal reform. Moderate legal constitutionalism is not premised on the assumption that the common law is the primary repository of fundamental values of the political community insofar as that connotes exclusivity. The common law will play a role in this regard, but this will be in conjunction with the political branch of government, not to the exclusion thereof. It is readily apparent, as political constitutionalists have rightly emphasized, that Parliament has made many positive contributions to the development of fundamental societal values, as you would expect in a democratic society. Parliament will thereby shape the more particular meaning accorded to concepts such as liberty, security, equality, autonomy and the like. This will sometimes be done by Parliament itself, on other occasions it will emerge from a symbiotic relationship with the courts, more especially when Parliament has assigned them such a role as under the HRA, or in the interpretation of other rights-based statutes. Nor is moderate legal constitutionalism

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predicated on the assumption that ordinary politics fails to connect with fundamental values, other than that mistakes are made given the fallibility of human beings.120 Fourthly, values will necessarily inform judicial review in the manner adverted to above. Thus the very decision for there to be law at all in an area, public or private, is premised on certain values that legal intervention is designed to serve, what was termed the first level in the preceding analysis. The elaboration of the particular doctrinal categories in any area, whether of private or public law, will be shaped by values that are central to the attainment of the primary goals of legal intervention in that area and their content will reflect certain normative precepts. This is equally true when the more detailed content of the doctrinal categories is decided upon. The resultant doctrine will often be indicative of certain assumptions about liberty, equality and the like, but these values will develop in the symbiotic, incremental fashion elaborated above, through analogical reasoning and the courts will commonly proceed in a cautious fashion as captured through Sunstein’s thesis of incompletely theorized agreements.121

F. MODERATE LEGAL CONSTITUTIONALISM, POLITICS AND POLITICAL CONSTITUTIONALISM: II

The relationship between moderate legal constitutionalism, politics and political constitutionalism can be further sharpened by reflecting on Tomkins’ six tenets that he associates with legal constitutionalism, which he criticizes.122

120

Cf Poole, ‘Legitimacy’, n 74.

121

Sunstein, n 94.

122

Tomkins, n 30, 10-25.

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The first is that law is an activity that is not only distinctive from but also superior to politics. The soundness of the first part of this claim involves complex considerations that are barely touched by Tomkins. He clearly perceives the common law as just as much a political enterprise as parliamentary law-making, but the rationale for this conclusion is never made apparent. The foundational assumption might be any of the following: that public law adjudication entails balancing of values; that it deals with matters that might or have been considered in the political process; that legal decisions have political implications; that judges have inherent ‘political’ biases; or that all law is political. This is clearly not the place to analyse these criteria for the law/politics divide. The second part of this ‘tenet’ does not however apply to moderate legal constitutionalism. It is not premised on the assumption that ‘politics is bad, law is good’. It does not underpin the primary legal material, nor does it follow therefrom. Nor is moderate legal constitutionalism premised on the assumption that the courts are the only institution for the regulation of public power, Tomkins’ second ‘tenet’ of legal constitutionalism. Moderate legal constitutionalism is premised on the assumption that courts are important for legal accountability, while recognizing, as pretty much all legal constitutionalists do, that there are other ways of promoting accountability quite independently of judicial review, and examining such topics.123 Nor yet again is moderate legal constitutionalism, or legal constitutionalism more generally, premised on the assumption that individuals should, as far as possible, remain free of interference by the government, in the manner claimed by Tomkins in his third tenet. He labels this liberalism. We need to tread carefully here. It is clear that many legal

123

See, n 119 above.

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constitutionalists subscribe to liberalism, as evidenced by the secondary literature. The idea that liberalism is captured by Tomkins’ third tenet is however questionable to say the least. There are, as is well known, significant differences within liberalism, ranging from welfarist Rawlsian conceptions, to more libertarian conceptions, with a plethora of variants in between, which have differing consequences for the role of the state. Commitment to liberalism does not therefore necessarily connote the desirability of a minimal state, nor does the fact that legal constitutionalists speak in terms of autonomy or human dignity. The contingent fact that a particular legal constitutionalist may subscribe to a libertarian view of liberalism,124 or interprets concepts such as autonomy and human dignity in that manner, does not entail the conclusion that the precepts of legal constitutionalism developed by the courts are ‘wired’ to that version of liberalism, or indeed any particular version thereof. It is therefore perfectly possible to, for example, support republicanism, favour legal oversight within administrative law, and orient the basic precepts of judicial review so as best to effectuate the goals of that theory.125 Tomkins’ fourth tenet of legal constitutionalism is that where government interference is unavoidable it should be justified by reason. This assumption is indeed part of all versions of legal constitutionalism, but it is surely defensible on any plausible thesis of accountable government, irrespective of the particular political theory that underpins it. How would one normatively defend the contrary proposition, to the effect that governmental interference does not have to be justified by reason?

124

I am not claiming that any UK legal constitutionalist does adopt this view of liberalism.

125

Sunstein, n 21; Michelman, n 22.

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Tomkins’ critique of what he terms the fifth and sixth tenets of legal constitutionalism can be considered together. They are respectively that the extent of and justification for government interference is a matter for the courts, and that the law should control government through the enforcement of specific rules and general principles of legality. His critique of both propositions is grounded on the admixture of reasons that underlie his opposition to, and radical limitation of, judicial review discussed earlier: there is no legitimate foundation for such principles, they entail too much balancing, and they intrude on issues that are legitimately the preserve of the political process. The difficulties with Tomkins’ preferred vision of judicial review were considered above, as was the consistency of his position. We considered also the nature of evaluative judgment and balancing in law, both more generally and in relation to public law. It suffices to add at this juncture that the legitimacy of review under the HRA rests on the democratic will of Parliament, and that the application of this review is properly tempered by deference/respect/discretionary area of judgment accorded to the primary decision-maker.

G. CONCLUSION

No attempt will be made to summarize the entirety of the previous analysis. It is healthy for there to be debate concerning the legitimacy of judicial review. This debate has hitherto focused on constitutional review, and in particular strong constitutional review. It is however readily apparent from the preceding discussion that political constitutionalists have also challenged non-constitutional review. This challenge should be taken seriously. This paper responds to these arguments and advances a view of moderate legal 60

constitutionalism, which best captures the relationship between courts and politics in a constitutional democracy, and coheres more generally with the way in which legal doctrine evolves.

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