Foundations of UK Administrative Law: The Common Law Method, Values and Contestation

good afternoon ladies and gentlemen and welcome to the first of the 2014 Hamlyn lectures which are a progression which will move from Oxford to Queen's University Belfast and then to London and on into the operations of our beloved friends Cambridge University Press who will produce the lectures as a volume that will become part of a heritage in legal studies in this country that's of interest not only in this country but as part of legal studies around the world so I'm delighted that the Hamlyn lectures are starting this year in Oxford and I'm delighted that two of the trustees professor Algrim sure and mr. Steven Sedley are with us the Hamlyn lectures are so important that we need someone to introduce the introducer and it's my privilege to call on our colleague visiting professor in the Faculty of Law at the University of Oxford Sir Stephen Sedley to introduce this year's lecturer he ought to know how he himself gave the Hamline lecture in 1998 as well as being a trustee of the Hamline trust Sir Stephen sadly thank you very much young Timothy welcome all of you to the 66th series of the Hamlyn lectures it's my privilege on behalf of the Hamline Trust to introduce this evening's lecture when Emma Warburton Hamelin died in 1941 she left the estate that she'd inherited from her father who was a well-known Torquay solicitor and jp4 purposes which were initially considered to be too uncertain to be given effect having loyally discharged every testator's first duty of providing work for the legal profession her will trust was finally approved in 1948 by the Chancery Division for the following purposes and quote the object of the charity is the furtherance by lectures or otherwise among the common people of the United Kingdom of great Northern Ireland that's you of the knowledge of the comparative jurisprudence and ethnology of the chief European countries including the United Kingdom and the circumstances of the growth of such jurisprudence to the intent that the common people of the United Kingdom may realize the privileges which in law custom they enjoy in comparison with other European peoples and realizing and appreciating such privileges may recognize the responsibilities and obligations attaching to the buffer the last bit that could be new kip the first series of Hamelin lectures was delivered in 1949 under the title freedom under the law by a newly appointed Lord Justice named Denning they've continued in an unbroken line ever since and I think today they can lay claim to being the premier series of more lectures in the common law world miss Hamlin I hope would have been proud she would certainly been happy as the trustees that this year's series is being delivered by Professor Paul Craig and the porters chosen Oxford is the venue for the first of his three papers as Timothy Endicott er said the succeeding ones will be delivered in Belfast Queen's University and then in London grazing of which Paul Craig is a bench chair Paul Craig is a public lawyer of both national and international distinction he is an Oxford graduate former venerian scholar winner of both the Gibbs and Henriques prizes a fellow of the British Academy an honorary Queen's Counsel and since 1998 the holder of the chair of English law in this University which also among many other things the alternate United Kingdom representative on the Venice Commission which gives constitutional advice to the 46 other member states of the Council of Europe his textbook on administrative law is one of the most cited and most highly regarded books in the field along I hasten to say with Timothy Endicott's the theme of the Paul's series of lectures this year is administrative law nationally within the EU and globally tonight's paper on the foundations of UK administrative law is subtitled common-law method values and contestation and it thus picks up and broadens the theme of last year's lecture series given by law justice laws on the common law the great pleasure asked Paul Craig to speak thank you very much indeed Stephen thank you for the kind introduction and also Timothy it is a great honor to be giving the 66 Hamlyn lectures I ought to just put what I'm going to say in context in order that it can be understood the book which will emerge from this set of lectures will be entitled UK EU and global administrative law : foundations and challenges save just a small topic the breadth of the subsequent book I lay entirely at the blame of the trustees who intimated to me at the outset that they and indeed Cambridge University Press might not be averse to the fact that the subsequent book was a little longer than three lectures would normally be so I then took them up their word or perhaps a little more than their word and applied the principle which some ascribed mistakenly to Blackstone and it really goes back to Hale which translated from the Latin roughly says give them an inch and they'll take 400 pages and that's roughly what it's going to be because the final product will be a book of somewhere between 150 and 170 thousand words and because I am a very simple person as I have two generations students it's a very simple structure and the simple structure has two chapters on each legal system foundations and challenges of UK and EU and what I'm going to be doing in the three lectures that I'm giving actually as part of the Hammond series is that I'm going to be talking about the Foundation's chapters the foundations of UK administrative law of EU administrative law and a global administrative law and today's lecture is the one about UK administrative law now in this chapter I advanced a model of common law constitutionalism that is more moderate than that presented by some other writers but which I believe and argue best captures the historical provenance of the subject is consonant with constitutional principle and coheres with current legal practice now the chapter begins with a discussion a theory of how the common law evolves and the interrelationship of a value and doctrine in that evolution that evolution is analyzed from three related perspectives a conceptual perspective a judicial perspective and a constitutional stroke administrative perspective that is followed by analysis of the relationship between theory value and fact within Public Law discourse the focus then shifts to the relationship between common law and legislative intent when considering the foundations of judicial review now I cannot possibly cover all that material in this lecture the chapter currently sits stands or kneels at about 30,000 words and however how fast I talk I certainly can't cover 30 thousand words so choices must perforce be made and I have made a choice and what I'm going to deal with today is the relationship between the common law and legislative intent which if you want some rough figures covers approximately 25% of the chapter it will be the focus of this lecture the debate burned fiercely at the turn of the new millennium it may or may not surprise you to hear that I concede nothing the affliction of time has not led to change in my view but it has lent perspective on the central issues in this discourse the core contentious issue remains unaltered it is the claim that the precepts of judicial review must be based on legislative intent since if this were not so such review would constitute a strong challenge of the sovereignty of Parliament the lecture will be divided into four parts the first section is designed to clear the ground by rebutting two prominent objections to the relevance of the debate firstly that it has no doctrinal significance and secondly that it has no normative significance the remaining sections address arguments that have been put as to why legislative intent must be regarded as central I contend that the only way in which we can make progress is to disaggregate these arguments and there are three different kinds of arguments which will be considered in sections 2 3 and 4 an analytical argument an empirical argument and a normative argument so no one can claim that any argument has been left behind so let me begin with part 1 and part 1 is what I regard as clearing the ground addressing these two related arguments first of all the debate makes no doctrinal significance secondly it makes no normative significance or difference rather the argument or the jibe that the debate between proponents of the common or model of review and those who insist that the legislative intent is vital in order to avoid a strong challenge to parliamentary sovereignty that jibe has been purged the jibe that it makes no doctrinal or has no doctrinal signal has been put by a number of writers Trevor Allen being amongst them the conclusion is right the reason is wrong and the error is important the critique assumes explicitly or implicitly that the reason why there are scant if any such doctrinal consequences is because the resulting doctrine is somehow an admixture of the common law model combined with legislative intent that might indeed be true if the modeling issue were that of specific legislative intent the shift from specific to general legislative intent is however much more profound than the mere adjective change would indicate the specific intent model was predicated on the assumption that Parliament had such an intent as to the meaning and application of review in a particular instance and in that sense could validly be said to be part or Thur of the resulting doctrine the general intent model is in reality entirely different and is in fact a modified common-law doctrine rather than a modified ultra virus doctrine on the general intent model Parliament is taken to intend that its legislation conforms to the basic principles of fairness and justice which operate in a constitutional democracy however because Parliament itself cannot realistically work out the precise ramifications to that general idea it leaves or delegates power to the courts which then fashion the more particular application of that idea in accordance with the rule of law now the real reason why the modified ultra vires doctrine does not lead to different consequences from the common law model is quite simply that the former has no content whatsoever other than that provided by the latter the legislative intent the general legislative intent is merely nothing more than a key to unlocking the door to allow the courts to decide on the ambit judicial review in accord with a rule of law it has no specific content this being determined by the courts in accord with whatever they choose to include within the principles of review pursuant to the rule of law ideal the reality is therefore that the modified ultra vires doctrine functions merely as a ROM voir back to the common law which is why in the 400 year history of judicial review there is no doctrine that owes its origin to general legislative intent or anything like it it is no answer in this respect to contend that the specific statute might contain indications as to the nature or incidence of review it might and if it does then proponents of the common law model have accepted always accepted but that will be taken into account the modified ultra vires model has in any event nothing further to add in that respect since by definition the general legislative intent will be insufficiently specific to discern the contours of judicial review in a particular statute what I have said above in terms of the fact that the modified ultra vires doctrine brings nothing new to the table and therefore has leads to no different doctrinal consequence that is equally true in relation to the other adjectives of shift advance in the literature which is the move from specific legislative intent to constructive legislative intent which you find in the work of Professor Trevor Allen thus Trevor Island acknowledges that it will be for the court to decide on the appropriate restrictions to place on administrative discretion and then in doing so they draw on a range of constitutional values however the values that inform the constructive legislative intent are synonymous with the rule of law once again constructive legislative intent performs no function in relation to the idea vacation of those values it simply expresses the conclusion about the choices which the courts have already made it serves no independent function and has no independent content let me move on then to the second tier of this first Lib the argument that it makes no normative difference it is common once again to see that the art to see the argument that the debate concerning the foundations of review doesn't really matter in normative terms it is regarded as conceptualism using that term in a derogatory manner which conceals severities argued the real normative issues or those are the fundamental for any regime of public law that argument is evident in the work of different writers Tom Poole is one trevor allen is another so we have the arch opponent of common law constitutionalism and the arch proponent both making the same argument in that respect now the argument that there is no doctrinal difference is as I've mentioned already right for the wrong reason the argument that there is no normative difference or that the normative issue is unimportant is quite simply wrong the requirement of legislative intent where the specific general or constructive means and this is unarguable that it is not constitutionally legitimate for courts to apply apply common law doctrine to a statute in the absence of such intent thus while those have subscribed to the modified ultra vires model such as Mark Elliot while they now acknowledge more clearly than before that the existence in inverted commas of the principles of judicial review is derived from normative precepts such as the rule of law it is integral to their theses of the very all their thesis that application in inverted commas of the principles must be grounded in some legislative intent sitting since it is thought that this would otherwise entail a strong challenge to sovereignty legislative intent thus conceived is the condition precedent for judicial review in the sense of an operative set of principles used by courts to decide real cases in the absence of such intent the principles may exist in inverted commas in the abstract but are unable to real statutes in the real world which provides the foundation for circa 90% of public law authority it follows on this view that the courts cannot legitimately apply such principles in the absence of such intent the courts do not therefore have autonomous legal power that's pretty important if it's right it's wrong but it's pretty important the stakes are even higher because I'm going to demonstrate in part two that if it is correct if the argument is correct then this limits the application of any common law precept to a statute irrespective of whether it concerns public law contract tort restitution or indeed criminal law that I will demonstrate in part two now you may think that this proposition the proposition that the courts don't have autonomous legal power you may think it's uncontested ox you may think it's contestable and heterodox the importance of the proposition one way or the other Cour cannot however be denied it is fundamental and foundational to our legal order it is not conceptual formalism and it's not a side issue it is central and under pins much else it speaks to the respective powers of courts and legislature in a constitutional democracy it encapsulates different views about the relationship between the rule of law Parliament to argue to the country is untenable and to feign indifference is to fudge the normative issue consider in this respect Tom Paul's own summation of common law constitutionalism you cannot adhere to the constituent elements of that theory while at the same time expressing or purporting to express indifference as to the normative proposition adumbrated above you cannot at one on the same time maintain in accord with his depiction of common law constitutionalism and this is his own list his own depiction goes as follows a political community is ordered accorded to a set of fundamental values the primary repository of which is the common law as articulated by the courts that ordinary politics do not necessarily connect with fundamental fundamental values and that public law consists of a set of higher-order principles and rights which can be used to set aside political decisions you cannot maintain that as your vision of common law constitutionalism whether you think it's right or wrong you cannot maintain that and at the same same time maintain that it is illegitimate for the courts to apply such principles to statute without legislative intent this is neither normatively nor conceptually coherent the respective parts of that formulation can only exist by radically reinterpreting one or undermining the other if the former part is taken seriously there's no normative foundation for the latter if the latter part is taken seriously it didn't use the former of all substance can Sidra in this respect also trevor allen's alleged indifference as to where the public law doctrine is grounded on the common law or legislative intent coupled with his repeated iteration that the relationship to best be conceived in terms of sharing between common law and legislative intent the reality is that as the modern scholar that best exemplifies Tom Paul's articulation of common law constitutionalism he is not and cannot be indifferent to the normative premise that underpins the legislative intent model set earth for the reason set out above alan trevor allen does not in reality except that the normative force of the rule of law is dependent on any linkage with legislative intent nor moreover can the normative issue be resolved through invocation of the verb to share as if that had some magic property to the country the verb to share in trevor Allen's work takes on a very specific connotation which comes close to do muting that word of all meaning thus he regards the common law as the source of the foundational values that constitute the rule of law he contends that Parliament is not able even expressly and unequivocally to depart from a particular precept that constitutes the rule of law in any particular instance and he believes that courts can and should invalidate primary legislation via constitutional review for non-compliance with the rule of law thus broadly defined now you may well agree with that view or not as the case may be but do not pretend that the answer one way or another is advanced by recourse to the concept of sharing and do not pretend that the answer is premise on indifference as to the normative issue examined here let me move on then so that's the end of part 1 let me move on to part 2 so so I believe that the issue is of normative importance for the reasons that I've just put on the table so let me move on then to consider the different arguments which have been advanced as to why legislative intent is necessary to prevent a strong challenge to parliamentary sovereignty the first argument is what I call the analytical argument now analytical arguments are great I like them they have a certain cutting edge to them they have a power and a force the desired goal is reached through a logical form of argumentation the force of which cannot be denied the result may or may not be desirable depending on the content of the argument said to be proven it's the analytic logic that imbues the result in conclusion with its strength there if there is however a flip side to this coin a double price that has to be paid if you rest your thesis on an analytical argument then you have better make really really sure it works you also must ensure less obviously but equally importantly that it does not lead you in directions that you do not wish to go why is that so because an analytical argument has its own integrity which must be followed through to its logical conclusion even where this creates problems that the author would rather ignore or deny academic life being what it is and academics being human some of the time the normal response is a bit of both if you're the academic and you have not if you see the problem and you're the academic there's a temptation to ignore it hoping that others will not notice if you've not seen the problem and it's pointed out then the natural temptation is to deny or distinguish the situations to the force of the argument that strategy both limbs are inherently precarious ignoring and hoping that no one will notice is simply giving hostage to fortune because sooner or later someone will denying and distinguishing is equally problematic because it can only be judged a success if it fits with the integrity and logic of the analytical claim all of which is as it should be those who seek to live by the analytic sword must recognize that its power is indifferent to authorial parentage the analytic argument was at the forefront of the claim that legislative intent was crucial for the legitimacy of judicial review it was indeed the hair that set the whole debate about the foundations of judicial review running it was initially articulated by Christopher Forsyth back in 1996 who contended that in the absence of such intent judicial review would constitute a strong challenge to parliamentary sovereignty he maintained in would have become famous as part of the debate that what an all-powerful Parliament did not prohibit it must be taken to authorize either expressly or impliedly from this it was said to follow that all elements of judicial review must be clothed with legislative intent so this since if this were not so the assumption would be that Parliament did not intend the constraints on statutory power to exist with the consequence that the judicial imposition of such limits would amount to a strong challenge to parliamentary sovereignty that's the analytic claim and actually even now when you look at the literature that's regarded as the one of the foundational planks on which the whole tableau of the need for an intent rests the analytical argument is however problematic on both counts adumbrated above it doesn't work and it leads in directions that its supporters would rather not go I will consider those points in turn now the difficulties with the argument the analytic argument were noted 1997 by Sir John Laws who pointed out that there may be circumstances where we do not have any intent about an issue one way or another what he termed the undistributed middle that argument was never developed by Sir John and was treated dismissively by adherents of the legislative intent model that was unwise for Sir John Laws was right and his argument has very far-reaching implications let me try and draw out what those implications are the reason resides in the nature of the inquiry the question which we put consider the following very simple example we wish to inquire of the legislative intent in relation to error of law review for error of law we compose any of the following questions administrators should be subject to some control for error of law that's one formulation secondly court should be able to substitute judgment on all errors of law thirdly court should be added substitute judgment on jurisdictional or collateral errors of law fourthly court should substitute judgment on some issues and exercise rationality review on others fifthly they should show other things being equal greater deference to legal determinations made by tribunals Percy to the 2007 legislation but not to others sickly the intensity of review should be based on functional considerations and lastly that there should be no distinction between review for law and fact at all now just reflect on that list of seven and it's just a very simple list the legislature would probably only have any meaningful definite intent in relation to the first of those queries all the queries put in the first way viz that the administration should be subject to some control the error of law in relation to all the other options the legislature would likely have no intent one way or the other and the choice between them is the real doctrinal issue the legislature would not understand the issues or the implications of the choices I should make clear that entails no disrespect to Parliament at all the reality is that many generalist lawyers would not have firm views on those questions and the reality is also that specialists disagree now whether it is even possible to have an intent on an issue that you do not understand is a matter which I leave as an action point for the jurisprudence group to debate over a few pints in the lamb and flag or whatever their other venue of choice is it's a sort of thing that you can imagine people talking about over a couple of pipes and then somebody else sitting nearby sort of overhears them and think this is exactly the sort of thing that people should talk about in Oxford and do talk about in Oxford and then writes this full of funny letter to The Times or something in any event action point to the jurisprudence group but what I've just said reveals in effect a deeper problem with the analytic argument if it's force is restricted to very abstract determinations about which Parliament might have a definite intent there's for example that there should be some control over errors of law with a more detailed doctrinal specification delegated to the courts then of course in those circumstances there is very unlikely ever to be a clash with parliamentary sovereignty since Parliament will likely express an affirmative answer to the question posed at that level of abstraction but this affirmation of Parliament sovereignty is purely formal and formalistic since the courts would then make the real decisions through the other six choices among the options listed above if by way of contrast the focus of the analytical argument is tested against the real choices that shape review for error of law or indeed any other doctrinal issue it can no longer be contended that that is necessary to prevent a strong challenge to parliamentary sovereignty since that argument is premised on the assumption that Parliament has a definite intent on the particular doctrinal issue one way or another if it does not then the courts could choose between any of the available options listed above without fear of infringing sovereignty so in my view the analytic argument doesn't work if it is felt that judicial power must nonetheless be predicated on some approval or delegation from Parliament then that must rest on a normative claim and I will unpack the normative claim in part 4 but before doing so before doing so I want to tease out the second part of this section the analytical argument which is where this argument will go if it's right I've said it's wrong but let's imagine for a moment that it's correct let's presume it's correct and see where it leads us logic dictates that legislative intent must equally be regarded as the foundation for all bodies of law including contract or trust property restitution and the like where the common law principles are read into legislation the reason is simple and readily apparent legislation is commonly read subject to those common law principles unless there is something to indicate to the contrary the store sheis liability rules will be deemed applicable to all statutory context irrespective of whether the statute concerns public or private bodies on admixture of the two unless there is some statutory rationale to demote to modify or deny their application the same is true for contractual proprietary and restitutionary rules if the analytic guardmen is correct the mat we must equally cloak the application of such common law principles to statutes with legislative intent in all areas of the law statutes are enacted against the backdrop of common law doctrine and presume its existence such that the way in which they are applied will be shaped by the common law rules those rules constrain or condition the way in which the statutory power is exercised unless the statute specifies to the contrary if it is felt that some positive legislative intent is necessary to cloak judicially created precepts of public law with legitimacy when applied to a statute then the same must also be true in relation to judicially created principles of contract tort Trust property and restitution now what might be the response of the proponents of the legislative intent model well there's two possible responses they might of course accept the force of the preceding odd and contend that Ledger's that have been Ted must be regarded as a condition precedent in all areas of the law whenever common law principles are read into legislation this might I don't know it might be accepted with equanimity by those wedded to the analytic claim it's unlikely or however to be a view which is shared by scholars in private law criminal law and international law who do not and have never conceived at their subject in that manner such a view is moreover based as we'll see be seen in part for a mistaken normative assumptions about the nature of sovereignty and the respective role of common law and statute as sources of law within our legal system so what's the alternative strategy if you don't affirm then they might seek to deny and distinguish this is the more likely strategy but its plausibility depends on advancing an argument that preserves the application of the analytic claim in the public law context while successfully denying its applicability to other legal areas this is no small task and I have yet to see an argument that comes anywhere close to doing so successfully so for example there are hints in the literature to the effect that private law is different because for example private parties require no authorization before making a contract whereas public bodies have to point to some such authorization to enable them to act there may well be truth in this but it's wholly irrelevant to the present argument it is indeed looking down the wrong end of the telescope the issue is not whether private parties can make contracts without any prior authorization they can the issue is whether the common law rules devise to regulate those contracts require legitimation through legislative intent when they are read into legislation and that's the issue irrespective of whether you relates to public or private parties the former proposition does not touch the latter nor does it furnish any reason for distinguishing the application of the analytical argument to all areas of the law it may help to ground and finalize the section by taking a simple example which tests the point I've made apart consider a particular statute which is made many statutes are applicable of course to public bodies and private individuals many statutes deal with issues that crossed legal subject matter boundaries the distinguishing exercise whereby the analytical argument is held applicable to public law principles read into the statutes but not to common law principles from other legal areas does not withstand examination it entails the firm affirmation that legislative intent must be found when public law principles are read into the statute in order to safeguard parliamentary sovereignty coupled with the equally firm affirmation that that is unnecessary when the relevant principle is derive from contract to trust and restitution that would in turn generate nice and I mean nice and inverted commas nice doctrinal contestation as to whether a particular precept was properly too real to be regarded as coming within public law thereby requiring the legislative intent trigger or whether it should properly be viewed as an aspect of private law in which case it could be waived safely through the system without it it also generates nice in 30 comments once again inquiries as to what should happen when the same common law principle for example fault or restitutionary liability is applied in a statutory context to both public bodies and private parties there would assuredly be room for an academic symposium I'm sure funded by the British Academy with papers arguing rival positions as to where the legislative intent would require when such liability was applied in a statutory context to the private party as well as the public body the reality is that the distinguishing exercise is untenable leading those distinctions that would make the debates that beset medieval scholasticism look positively printable let me move on to part three which is the empirical dimension so I don't believe as you've just seen that the analytical argument works so let me move on to the empirical dimension empirical arguments have an intuitive appeal based on their factual foundation an argument derives succor and support from its attachment to practical reality it's therefore unsurprising that this dimension has assumed greater prominence more especially with the addict I believed from specific to general legislative intent the former specific legislative intent was subject to the critique that it was empirically unrealistic to assume the Parliament had any specific legislative intent as to the application of the precepts of review in a particular statute the latter general Ledger's of intent was said to be justified because Parliament could realistically be regarded as having a general intent that administration should be subject to general privet precepts of substantive and procedural legality the details of which would then be worked out by the courts acting pursuant to authority delegated or left to the courts by Parliament now empirical arguments often come with an edge they are proffered with a latent or indeed not so latent challenge which at its most basic form cakes maker in which at its most basic takes the form of deny that if you can this is a jibe uttered in many context from youth to old age may indeed be an integral part of human nature its present application in the context of intellectual controversy does not alter the essential character of the argument or the intuitive appeal of making it it really resonates with basic instincts that we all have goes back to the kind of playground where some kid comes up to another kid and says God what he said deny that if you can yet all good things come with attendant dangers there are three problems serious problems with the empirical argument first there are some who seem to maintain that the empirical claim resolves the debate between the common law and the modified ultra vires model in favor of the latter there are some statements by Sir Philip Sales and Jeffrey Gould worthy which give the impression that all you have to do is to sustain the factual foundation for the empirical claim which then proves the triumph of the latter model over the former that is clearly untenable because is does not imply aught the fact that such intent might for the sake of argument exist furnishes no normative reason for concluding that it is necessary for the legitimacy of judicial review second the argument elides approval and creation I have no doubt whatsoever that empirically grounded general legislative intent could doubtless be posited for all manner of things including an integer property international conflict and economic recession I have no doubt either that it could equally be posited for liberty equality and human happiness that does not mean that anything done by Parliament necessarily had a causative impact on ending any other of the former nor does it necessarily mean that its general approval Parliament's general approval was a necessary condition for the existence of any of the latter in the same vein empirical proof of general legislative intent provides no evidence that the legislature had any role in the creation of the principles of judicial review third critique if nonetheless it is felt that mere approval in the preceding sense suffice is four general Ledger's of intent to be regarded as the foundation for judicial review even it even if it has played no part in doctrinal creation then you face the real problem which is that the same must equally be true for all areas of the law there is no more or less reason to say that the legislature believes for example in basic principles of justice in contract as mediated through concepts such as autonomy consent responsibility and the like the details of which will be worked out by the common law courts through a delegation of power by the legislature when it is unable to make detailed provision for such matters itself there is equally no more or less reason to say that the legislature execs exhibits a general intent that tortious liability should be fair and reflect some appropriate balance between corrective and distributive justice between full and non fault liability the details being once again worked out by the common law courts pursuant to legislative authorization of power precisely the same exercise could be applied to all air a private law and indeed criminal law if therefore the empirical argument as to general legislative intent suffices for the conclusion that such intent is foundational for public law then the same must be true for all areas of the law where statute exists let me now move on to part four the normative dimension normative argumentation is central to public law as it is to other legal disciplines it is often assumed by adherence to the ultra vires model that if we get down to the normative dimension then the legislative intent model wins in normative terms because it coheres with a constitutional orthodoxy of parliamentary sovereignty indeed the very sanctity of parliamentary sovereignty protected through the cloak of legislative intent is presumed to give this model its normative superiority there is however a paradox here because the normative claim is untested it is a separating but as I have said on a previous occasion a separation is not argumentation it is assumed to be self evidently true and it is portrayed as axiomatic when it is in fact neither the argument has never been unpacked and the reality is that constitutional orthodoxy over four hundred years does not conform to that postulated by those who support the ultra vires model this miss reading of constitutional orthodoxy is the consequence of mistaken assumptions about the meaning of parliamentary sovereignty combined with equally mistaken assumptions about the relationship between courts and legislature there are in reality three different models of sovereignty in play and the distinction between them is crucial to the normative dimension they embody very different assumptions about the relationship between courts and legislature in a constitutional two see the live issue is which model best reflects and coheres with UK constitutional tradition and I will argue that it is the first the first of the three models is indeed the classic model of continuing parliamentary sovereignty it embodies the idea of legislative omnipotence in the sense of ability to change that is reflected in its central tenants there are on the one hand no substantive limits on Parliament's power such as it can in theory legislate on any subject matter and there are no procedural limits such that it can do so by simple majority uninhibited by any manner and form limits laid down by an earlier parliament now I'm not I'm not suggesting that there shouldn't be limits I'm merely saying that's the classic model the centrality of capacity to change is also reflected in the traditional precept that Parliament is not bound by any other organ and can therefore overrule earlier Parliament's and judicial decisions the consequence of that view is that judicially created controls of public law on private law can apply perfectly legitimately unless Parliament has indicated otherwise in pursuance of its continuing sovereignty the second model I have termed and I think just as a descriptive term but I think it's descriptively accurate the second model I call the statutory monopoly model this demands in addition that an integral aspect of sovereignty is that any legal norm that impacts on legislation can only be legitimate if it has the imprimatur of the legislature through some prior showing of legislative intent the model of sovereignty therefore demands the Parliament must give prior approval to any limit or term read into legislation as the of constitutional legitimacy with the consequence that judicial power is contingent on finding such consent it does not suffice on that model that Parliament can change reject or modify any conditions imposed by courts the third model is more far-reaching yet again and I term this the parliamentary monopoly model the idea of general legislative intent was devised because it was recognized that the specific intent model was implausible hence its replacement with general legislative intent Konoe ting the idea that Parliament intends some general precepts of substantive and procedural legality to apply and leaves or delegates to the courts the task of fleshing out the doctrinal content the parliament is enabled to do but that reasoning could indeed have broad implications for relations between courts and Parliament irrespective of whether there is legislation in the area or not since it is at its most fundamental grounded on the idea that all Authority must be traced back to and receive the imprimatur of parliament in order to secure constitutional legitimacy on this view common-law judicial rulings even in the absence of legislation would have to be rationalized on the ground that Parliament intends general precepts of justice relevant to contract or property crime and public law and then leaves or delegates to the courts the task of defining their doctrinal content the legitimacy of the judicial rulings being dependent on that connection with legislative will now the distinction between the first model and the other two was recognized once again actually by John Laws in a one-liner which no one quite saw the force of at the time and I didn't though I did remember to go back to it but he rejected the claim that judicial review without legislative intent entailed a strong challenge to støvring t noting that the argument was quote vitiated by an implicit mistake the mistake of assuming that because Parliament can authorize anything all authorities and prohibitions must come from Parliament Sir John Laws again he didn't develop that thought but Sir John Laws rightly regarded that as a non sequitur trevor Allen in his work contends that John Laws missed the point since all common law rules are vulnerable to legislative abrogation with the consequence that the public bodies jurisdiction is always a function of the scope of its statutory grant however broad or narrow Parliament has chosen to make it to the contrary it is trevor allen that has missed the point John Laws his insight captures the distinction between the models of sovereignty I have set out abarth although he did not express it in those terms and those models of sovereignty are simply elided by Trevor Allen Christopher Forsyth analytical argument is premised it's predicated on the assumption that sovereignty means the statutory monopoly model as defined above John Laws as insight was to recognize that being all-powerful in the sense of the continuing sovereignty model did not logically entail the conclusion that all constraints on legislation must necessarily be authorized by Parliament ex ante in order to be constitutionally legitimate the fact that the common law rules remain vulnerable to legislative abrogation is indubitably true and is indeed central to the classic model of continuing sovereignty which has at its core Parliament's ability to amend repeal and change the analytic claim that legislative intent is required to prevent judicial review from being constitutionally legit illegitimate illegitimate is however premise on the assumption that the statutory monopoly model is true now I am NOT denying that a legal and political system might choose that model I'm not saying that that model is somehow a priori impossible not at all I'm not saying the third model is either a legal system might choose that model but that should not mask the fact that it is different from the classic model of continuing sovereignty so in the final five minutes in this lecture what I will argue is that the reality is that the classic model the first one best coheres without constitutional tradition are judged by four criteria constitutional scholarship the status of judicial decisions of sources of law judicial practice and how we conceptualize conflicts between courts and Parliament let me begin with constitutional scholarship it is noteworthy in this respect the prior to the debates about the foundations of judicial review which occurred at the end of the last millennium there was no academic indication that such doctrine entailed a strong challenge to sovereignty in the absence of legislative intent that is not just an interesting historical fact though it is an interesting historical fair nor is it fortuitous it's reflective of the fact that sovereignty as enumerated by the classic writers such as Blackstone dicey and Wade and indeed Cooke embodied the continuing sovereignty model their formulations of framed in terms of the sovereignty as parliamentary capacity to change prevailing rules or create new rules of fresh there is no hint whatsoever in those classic formulations that sovereignty also entailed the statutory or parliamentary monopoly models where it is inherent that you require prior authorization in the sense adumbrated above now of course I accept that it might be argued that this was regard as somehow is implicit by such writers and others who wrote on sovereignty in analogous terms but come on there is nothing whatsoever to indicate that they did think that unless of course you wish to wield wheel out the idea of an implied general constructive or some other intent that they meant this when they didn't say it so that's the first reason why I think that model number one is the preferable one in terms of our constitutional tradition second consider next the implication to the choice of sovereignty model for how we can see of relations between Courts and Parliament the statutory and parliamentary monopoly models have a profound a pet impact on relations between courts and Parliament in the following sense it is axiomatic in our constitutional system the judicial rulings are sources of law and this is supported albeit in different ways by writers from positivist and non positivist legal theory it is chapter and verse in first-year courses legislation is a source of law so to our common law decisions the latter of sources of law and constitutionally legitimate subject to the fact that they can be overruled by the former that being an integral aspect of constitution of continuing sovereignty that standard reading of our constitutional system must however be significantly revised if we subscribe to the statutory monopoly model let alone the parliamentary monopoly model with it strictures of prior legislative authorization why because it means that common law rulings cannot be regarded per se as constitutionally legitimate when applied in the context of legislation unless they're cloaked with the imprimatur of the legislature signaled through specific or general intent they are not regarded as a valid source of law unless unless such content can be located because it is said to entail a strong challenge to sovereignty as embodied in that model that structure is applicable to all common-law doctrine read into all legislation not just that concerning review it is inconceivable that it constitutional scholars from previous generations would have regarded that of something marginal or interstitial let alone that it would have been left to implication nor word those who made public law and the common law nor would cook whole Mansfield Kenyon Abbott the great judges from the 17th and 18th century have accepted that statutory monopoly model at all since it ran counter to accepted orthodoxy concerning the relationship between courts and Parliament's in our constitutional system the third limb of the argument judicial practice the classic orthodoxy of judicial practice is exemplified by the legality principle as developed by the courts in cases such as withum and Sims the common law recognized certain fundamental rights and it was for the courts to determine their meaning and ambit the application of such rights could be qualified by Parliament in the sense that they're continuing sovereignty would enable them to change alter or repeal what had been done at common law the courts policed the conditions on which this could take effect demanding express words unnecessary implication to limit such rights and the circumstances in which the latter would be satisfied were construed narrowly the Orthodox position is example if I want to gain by Lord Reed giving judgment on behalf of the Supreme Court in the recent BBC case where he stated quote that since the printable of open justice is a constitutional principle to be found in the common law it follows that it is for the courts to determine its ambit and its requirements subject to any statutory provision with a consequence that quote the courts therefore have an inherent jurisdiction to determine how the principle should be applied that is I believe a classic formulation of the idea of the continuing sovereignty model and exemplifies the argument that I have been making thus the relevant constitutional principle was to be found in the common law the common law courts determined its ambit pursuant to their inherent jurisdiction subject to any statutory provision there are many other judicial statements to like effect such as those given by law cook and law Bingham in daily who regarded the common law itself as the foundation for the right of confidential information consider finally the way in which we can sexualize corpse conflicts between courts and Parliament and the way in which that reinforces the argument being made here we hope that courts and Parliament are in broad accord as for the legal rules that should pertain we know that that does not always happen in the shorter term it is will the way in which we regard such tensions that is of interest here these can occur when Parliament distil likes a particular judicial decision they may be apparent in Parliament to distaste for a general body of legal doctrine and they be maybe manifest when Parliament takes or threatens action that is regarded as more deeply problematic from the perspective of the legal and political order the key issue in these circumstances is that we do not regard the judicial decisions thus rendered as illegitimate in any of these circumstances me because they provoke the ire or discomfort of Parliament that does not mean that courts always get it right they do not that's not the issue here the point is that even if Parliament states that it never intended the legislation to be subject to a certain constraint we do not therefore regard the judicial decision imposing that constraint as illegitimate as would be the implication of the statutory monopoly model if it were taken seriously let me then conclude the respective roles of court and legislature remains central to the foundations of judicial review the requirement of legislative intent means that it's not constitutionally legitimate for courts to apply common law doctrine to a statute in the absence of such intent the courts do not in that sense have autonomous legal power this limits the application of any common law preset to a statute irrespective of whether it concerns public law private law or criminal law this is not correct nor does it capture the relationship between courts and Parliament that is our constitutional heritage for those who take the contrary view the magic wand of general legislative intent will have to be waved to sanction each area of legal doctrine when common law precepts are read into legislation or perhaps we might just take a lesson from Chicago efficiency we could simply posit Parliament issuing one grand or wild car to the effect that Parliament leaves or delegates to the common law courts the power to construct just rules for all forms of legal relations combined with the correlative assumption the Parliament can be taken to intend to comply with them whenever it legislates in the relevant area just be mindful that if this step is taken or accepted it should be done with eyes wide open this is not constitutional orthodoxy as we have known it for 400 years it does not reflect our existing conception of sovereignty thank you very much ha

Channel: Oxford Law Faculty

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Keywords: Administrative Law, Common Law, Paul craig, Hamlyn Lecture, University Of Oxford (College/University)

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Length: 70min 5sec (4205 seconds)

Published: Thu Jun 18 2015