heory Revision

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WEEK 8: ADMIN LAW THEORY Tomkins, 'In Defence of the Political Constitution' [2002]
The "political constitution and indeed generally, are in need of both defending and praising"
(aims to look at relationship of law with politics & particularly to respond to Loughlin's theory.
Tomkins highlights the difference between red-light and green-light theories of admin law
(introduced by Harlow and Rawlings, and later amber and blue rinse views). Initial divide was
based on four principal differences of view: (a) on law, (b) on the state, (c) on notions of
control, (d) on liberty. RED-LIGHT theorists believe: (1) That law is autonomous to and superior
over politics; (2) That the administrative state is something which needs to be kept in check by
the law; (3) That the preferred way of doing this is through rule-based adjudication in courts;
(4) That the goal of this project should be to enhance individual liberty where liberty is
conceived as being the right to be left alone, the absence of external constraints (an idea of
liberty best realised by having small government). This tends to reflect a more politically
conservative view. Paradigm example is the model of illegality where Parliament enacts
legislation which confers discretion on an executive decision-maker to do x, decision-maker
does y and this decision is challenged by way of judicial review resulting in court invalidating y
on the ground that Parliament did not authorise decision y - from the red-light perspective, the
court is merely enforcing the will or at least expectation of Parliament GREEN-LIGHT theorists
believe: (1) That law is nothing more than a sophisticated (or elitist) discourse of politics and is
neither autonomous from politics nor superior to administration; (2) That public administration
is not a necessary evil to be tolerated, but a positive attribute to be welcomed; (3) That the
objective of administrative law and regulation is not merely to stop bad administrative
practices, but is to encourage and facilitate good admin practices (to control administration by
channelling and guiding and courts not necessarily best vehicle to realise these objectives); (4)
The goal of this project should be to enhance individual and collective liberty where liberty is
conceived of as something which is, if not constituted by the state, then is at least facilitated by
it, and is certainly not necessarily threatened by it (e.g. goal of the state might be to house the
homeless and feed hungry and educate young, etc. and role of admin. law is to help state
perform these tasks well). More politically progressive - paradigm example of this model might
be a complaint made to Parliamentary Ombudsman, resulting in Ombudsman investigating the
complaint and reporting back to the government department against whom the complaint was
made RED LIGHT theories are rooted in 19th century Diceyan constitutional analysis and GREEN
LIGHT theories are focused on questions of law's relationship specifically to public
administration. WIDER DEBATE OF FOUNDATION OF JUDICIAL REVIEW:
 "One can see the recent argument about the constitutional foundation of judicial review as
being an argument between red- and amber-light theorists.

Those who argue that the ultra vires rule is the proper foundation of judicial review are
defending a position which has close associations with red-light theory. Those who posit that
the common law is the proper foundation of judicial review are making a strongly amber-light
argument"

AMBER-LIGHT theorists believe: (1) (With red-light theorists) that law is both discrete from and
superior to politics; (2) That the state can successfully be limited by law, although that law
ought properly to allow for the administration to enjoy a degree - albeit controlled degree - of
discretionary authority; (3) That the best way of controlling the state is through the judicial
articulation and enforcement of broad principles of legality; (4) That the goal of this project is to
safeguard a particular vision of human rights. DIFFERENCE:
- this view of administrative law is "as narrowly focused on judicial remedies as are red-light
theories, but it elevates the constitutional role of the judiciary considerably beyond that
advocated by red-light theorists".
- Paradigm example of theory in practice is the case in which Parl confers a broad discretionary
statutory power on a decision-maker and the decision-maker exercises his discretion in such a
way as to touch on what the judges subsequently hold to be a fundamental or constitutional
right
-

Recently and especially after the Human Rights Act 1998, there has been a "growing desire to
strike out such executive decisions on the ground that they violate such supposed rights". Sir
John Laws in 1995 said that "a democratic constitution is in the end undemocratic if it gives all
power to its elected government".

On Loughlin
-

All three models rest on a different appreciation of the relationship between public law and
politics. Significant part of LOUGHLIN'S ARGUMENT is that this legal challenge to politics is a
more generally experienced manifestation of what he calls liberal-legalism (Loughlin defines the
objective of liberal-legalism as to secure "the enclosure of politics within the straitjacket of
law"). Tomkins considers whether this negative portrayal of politics is wise or even appropriate.
The philosophical assumption upon which liberal-legalism is founded is that the relationship
between law and politics is a polarised one. Tomkins seeks to show that POLITICS AND LAW ARE
DEEPLY ENTWINED WITH EACH OTHER: he distinguishes distributive justice from corrective
justice: o Loughlin argues that for Aristotle distributive justice was "essentially a matter of
politics" whereas corrective justice was "purely a question of law". o But Tomkins shows they're
related (e.g. with corrective justice, he discusses the politics of the English judiciary and the
techniques and methods of interpretation and with distributive justice he looks at the welfare
state). o Tomkins: "the underlying assumption of liberal-legalism is empirically mistaken, and
that law and politics are mutually dependent and complementary, and are not antagonistically
polarised opposites". o Loughlin finishes with four main conclusions:
 (1) the relationship between law and politics has no fixed or settled form;

(2) that each of the three basic conceptions of law (law as custom, law as command, and law as
right) yields a different relationship between law and politics);
 (3) liberal-legalism seeks to control and limit politics by, with and through, law;
 (4) [most important] this liberal project is doomed to fail (Loughlin: the project of
"establishing law as an objective framework of rational principles…has not been successful").
Tomkins argues that there is more than one way of conceiving of the relationship between law
and politics (e.g. might be talking about the relationship between legal and political institutions
or between legal and political actors or between the academic disciplines, etc). "most
obviously, there is no such thing as the relationship between law and politics. Law and politics
collide and combine in a dazzling variety of (not always compatible) ways. It follows from this
conclusion that any project which is designed to uncover the one true relationship of law to
politics is futile and is doomed to fail" (although this is not Loughlin's project, it does raise the
issue of why he talks throughout his book about the relationship between law and politics).


T's love-in with politics/ suggestion of republican solution

-
-

an "attempt to sketch out a vision of politics which will suggest not only that politics is worthy
of praise, but that it is vital that we stop attacking politics, and start celebrating its many
virtues". Tomkins finds it a dangerous belief that the 'answers to all political disputes can
ultimately be found in law' - an example of the consequences of not doing so is the US Supreme
Court decision in Bush v Gore [2000] where the judiciary were given the task of ascertaining
who won the American presidential election from the oblique test of American constitutional
law (however controversial due to the fact that the Court, when it gazed into the Constitution,
seemed to see their own political preferences). "politics is not something which we should
desire to entrap within the straitjacket of the law …
Politics is something which should be celebrated, not castigated. For politics is what makes us
free". Suggests REPUBLICANISM as a defence of politics (ie. freedom not threatened by the
political state but positively constituted by it). o A central difference between liberal and
republican constitutionalism is that while the former conceives of rights as being natural and
superior to (or trumps over) the political order, the latter insists that rights and freedoms are
utterly man-made and worldly (republicans hold that rights are derived from the political order,
are dependent on it and not superior to it); o republican constitutionalism does not seek to
exclude law or courts from constitutional concerns but merely seeks to locate the role of law in
a less all-embracing manner than does liberal-legalism. He concludes by arguing that (despite
antipathy with political engagement) "if politics is worth praising, and if it is worth rescuing
from the liberal-legal onslaught, as Loughlin seems to imply despite the fact that he has thus far
at least left the task to others [ie. does not provide a solution once he dismisses legal-
liberalism], then it might be that politics has found a champion in republicanism. Is it time for a
republic constitutionalism to come to the rescue of the ailing political constitution?"

So:
-

Tomkins gives a summary of administrative law theoretical background and different schools of
thought; identifies what liberal-legalism means, its dangers and the problems with seeing law
as the solution over politics; and suggests the use of republicanism as a solution to defend the
political constitution.

Barber, 'The Academic Mythologians' [2001]

The debate as to the foundations of judicial review is important as the "passing of the Human
Rights Act, the coming of devolution and the rapid expansion of judicial review have made the
question of the legitimacy of judicial power more pressing than ever before". AIM OF ARTICLE:
to chart the complex relationship between sovereignty and judicial review within the
framework of the two theories concerning the basis of judicial review (the modified ultra vires
theory and the common law theory); o he focuses almost exclusively on the arguments
advanced in support of the modified ultra vires theory as the strength of the claims of the
common law theorists will emerge through an examination of the weaknesses of their
opponents' contentions). o "the common law theory is in essence a denial of the modified ultra
vires theory: if the justification of judicial review cannot be extracted from the will of
Parliament we must seek its legitimacy in the decision of the judges".

Common Law Theory of Judicial Review

grounds the legitimacy of judicial review in the decisions of judges; idea that "unless Parliament
clearly intends otherwise, the common law will require decision-makers to apply the principles
of good administration as developed by the judges in making their decisions" (in forsyth's
words) broadly, this is the view advanced by Craig, Oliver, Jowell, Feldman, Sedley LJ, Laws LJ -
exercise of judicial review, where not premised on the construction of the statute, is guided by
and justified by the common law: judges do not need to have recourse to the implied intent of
Parliament to justify striking down administrative acts - common law provides with the
legitimacy needed to exercise review Barber: for these theorists, Parl's will is "not an
irrelevancy. Parliamentary intention is accorded both a direct and an indirect role in judicial
review" o DIRECT ROLE: when the court tests the actions of a decision-maker against the
empowering statute (ie. conduct which falls outside the powers conferred by the Act, and
which cannot be justified in some other way, will be struck down); o INDIRECT ROLE: in shaping
the requirements imposed by the judge from the common law (ie. though natural justice is a
common law concept, not predicated on the implied will of the legislature, its application in any
particular situation may be influenced by the statutory scheme within which decision-maker is
operating)

Modified Ultra Vires Theory of Judicial Review

grounds the legitimacy of JR in the intention of Parliament, connecting public law with classical
theories of sovereignty; Forsyth: "unless Parliament clearly indicates otherwise, it

-
-

is presumed to intend that decision-makers must apply the principles of good administration
drawn from the common law as developed by the judges in making their decisions". The
modified ultra vires theory DIFFERS from the full-bloodied ultra vires theory in that it does not
claim that Parliament has willed the application of specific rules of administrative law
- instead makes the (Barber) "rather more plausible argument that Parliament should be taken
to have intended that judges should apply the rules of good administration that they have
developed" (general intention). In Elliott's re-formulation of the doctrine, "Parliament is
presumed to have intended that the powers it confers are to be exercised in accordance with
the rule of law, and this conception of the rule of law is flexible enough to include the principles
of judicial review formulated by the judges at any point in time" (Barber). Barber tests the
theories descriptively and normatively

Descriptive Concerns
-

the modified ultra vires doctrine does not direct judges to reach any particular decision when
faced with an administrative act (not a rule that can be applied to specific fact situations)
Forsyth concedes that there is "some truth in the charge that the modified doctrine is without
content in that it provides little guidance to the actual reach or intensity of judicial review".
both sides can advance strong descriptive arguments thus the merits of the theories fall to be
assessed almost entirely in the normative dimension: the real point of disagreement is in how
the conflicting sides believe judges should justify their decisions to the public: the "difference is
grounded in the correct style of judicial rhetoric, rather than over the proper substance of
decisions".
[see below, summary, for better desc args o the descriptive arguments seem weak as the legal
material can be pulled both ways and also because the "nature of the modified ultra vires
doctrine, as a theory about how judges should defend their decisions, is such that arguments of
precedent are of less importance than when the legal status of proposed rules or principles is
being considered". ]

Normative Arguments
-
Two arguments advanced in favour of the modified ultra vires doctrine: (a) from grand
constitutional theory and (b) from the implications of the doctrine for substantive area of
administrative law.

(a) Grand Constitutional Theory

Advocates of the modified ultra vires theory claim that their theory provides a more attractive
RECONCILIATION OF JR WITH PARL SOVEREIGNTY o supporters of sovereignty believe that legal
relationship of the courts and Parliament can be encapsulated in a single rule: whatever
Parliament enacts as statute is law o the "modified ultra vires may allow us to endorse both
sovereignty and judicial review as coherent non-contradictory features of the British legal
order" o Barber notes, though, that "there is nothing in the modified ultra vires doctrine that
requires us to accept the claims of sovereignty" Second example of the relationship (ie. that
acceptance of sovereignty entails acceptance of the modified ultra vires doctrine) that is
controversial:

o Forsyth argues that "what an all-powerful Parliament does not prohibit, it must authorise
either expressly or impliedly. Likewise if Parliament grants a power to a minister, that minister
either acts within those powers or outside those powers". o Apparent Forsyth Endorsement Of
Austinian Rather Than A Wadeian View Of Sovereignty:
 for Austin, all legal power flowed from a single source (Parliament) and thus all law gained
validity from it;
 for Wade, it's merely that Parl is the highest source of law within the legal order (through an
Austinian view, the logical connection between sovereignty and modified ultra vires has been
established). o Criticism Of Austinian Model:
 "few, if any, modern scholars would now accept the Austinian model; most would accept
that the courts' articulation of the rules of private law does not depend on the tacit
endorsement of the legislature" (Wade view of sovereignty merely accept that the court's legal
authority is subservient to that of the legislature). o Elliott response:

argued that an Austinian reading of Forsyth is inaccurate and argued that Forsyth is not
intending to make a general statement about the source of legal power of the courts but rather
a more limited comment about the consequences of the grant of a statutory power
 argues that when Parliament grants a power it must be presumed to have intended that the
power be exercise in accordance with rule of law o Barber Response To Elliott & Criticisms Of
Common Law:
 "the rhetorical force of Elliott's argument depends on the personification of Parliament"
(personification is wrong as "it wrongly assumes that Parliament must have an attitude towards
every legal development within the British system"
  the contention that when Parliament grants a power it must either intend it to be exercised
in accordance with the principles of judicial review or must be taken not to care how the power
is exercised, turns on our viewing Parliament as an individual - however "Parliament only
intends what it is taken by the court to have said through the medium of statute".
 [agreed]
 Elliott's argument fails to establish a deductive link between sovereignty and the modified
ultra vires doctrine: in accepting the Wadeian view of sovereignty Elliott has abandoned the
strong claim that sovereignty necessitates modified ultra vires.
 Parl's attitude to private law is illustrative: Barber "the relationship between sovereignty and
judicial review advanced by the common law theorists is structurally identical to the
relationship between, say sovereignty and the law of tort".
 [so: comparison to private law shows that parl doesn't manifest an attitude about every
aspect of law. Craig makes this point too, see below]
(b) Substantive Benefits to be gained from Adherence to the Modified Ultra Vires Doctrine

one such benefit is the arg that the modified UV doctrine provides A METHOD OF
CIRCUMVENTING OUSTER CLAUSES that is denied to their common law rivals (in fact they
suggest that were the common law approach endorsed, judges would find it harder to
overcome ouster clauses and litigants might find their access to the court blocked); o Forsyth
and Elliott use Anisminic as an example demonstrating the utility of the modified ultra vires
doctrine in reducing the impact of ouster clauses (HL there argued that until the body made a
decision within jurisdiction the ouster clause could not have effect). BARBER RESPONDS by
noting that the ouster clause argument seems to point to a lack of respect for the express will
of Parliament (ouster clause in Anisminic was fairly explicit, the drafters of the statute plainly
wanted to insulate the Foreign Compensation Commission from the attentions of the court and
yet the modified ultra vires theory served to facilitate review). "a theorist who was genuinely
concerned to protect the constitutional position of Parliament should find herself opposed to
Anisminic, and should certainly not rely on it for support". With regard to ouster clauses,
common law theorists acknowledge and endorse the attempt by the courts to confine the
impact of ouster clauses, whereas the modified ultra vires theorists attempt to justify departure
from the literal meaning of the statute by relying on notions of implied intent - Barber says that
"the common law theorists at least have the virtue of clarity on their side; they do not conceal
judicial activism behind a fiction of parliamentary intent" [LACK OF CLARITY IN MODIFIED ULTRA
VIRES POSITION]. o [I agree]
Re DEMOCRACY: "democracy lovers who might have been attracted to the theory by the
primacy it appeared to give to Parliamentary intent will have been alarmed by Forsyth's and
Elliott's treatment of ouster clauses. This demonstrates that, contrary to the modified ultra
vires theorist's claims, the doctrine does nothing to constrain the courts to the will of the
legislature. Indeed, the modified ultra vires doctrine serves as a myth that empowers judicial
activism. The use of implied intent diverts attention away from the political decisions made by
the judges within the process of judicial review" (he says that "the fiction of ultra vires will only
serve to muddle and obfuscate the law"). so the modified ultra vires doctrine is "an illusory
constraint on judicial power. It provides a myth that conceals judicial activism. Judicial review
will be better served, and the value of democracy better protected, by an overt
acknowledgement of the power of the judges rather than a concealment of this power" (better
to have an open acknowledgment and recognition of the importance of democracy by the
judges which will provide "greater protection for Britain's elected institutions than will the
dangerous mythology of the modified ultra vires theorists").

So:
-

In this article, after exploring and defining the common law and modified ultra vires theories
(seeking to justify judicial review), Barber criticises the latter extensively on normative grounds.
He notes that the descriptive arguments seem weak as the legal material can be pulled both
ways and also because the "nature of the modified ultra vires doctrine, as a theory about how
judges should defend their decisions, is such that arguments of precedent are of less
importance than when the legal status of proposed rules or principles is being considered". He
considers and criticises two main normative arguments justifying the modified ultra vires
doctrine:

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