A Defence of Administrative Law Doctrine, Part II.A, The Constitutional Foundations of Judicial Review

This is an extract from my paper “A Defence of Administrative Law Doctrine“

In his writings on deference, Professor Allan picked up on a theme he had first elaborated in “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction”.[1] As he later summarized his general position, doctrinal grounds of review “express the conclusions of an analysis that depends, in each case, on a complex appraisal of interlocking matters of legal principle, factual assessment and policy choice: they articulate a distinction between review and appeal that varies in its nature and degree according to all the circumstances”.[2]

It seems to me that there are three propositions underpinning Professor Allan’s scepticism about administrative law doctrine.

First, that debates about the constitutional foundations of judicial review are largely irrelevant to the detail of administrative law and do not meaningfully constrain judges. I endorse this proposition.

Second, that the heads of judicial review – legality, rationality and procedural propriety – do not assist in the resolution of concrete cases. There is some force to this proposition, as there is certainly a need to “to translate abstract, high-level mission statements… into usable doctrinal tools”.[3] However, when properly understood, legality, rationality and procedural propriety set the framework for judicial review of administrative action and do indeed constrain judges. Moreover, when we include procedural principles alongside these heads of judicial review, it becomes clear that judges are in fact highly constrained in administrative law cases.

Third, that there are no general principles of administrative law, properly so-called, as the analysis in judicial review cases is invariably contextual. Here, I think there is some under-determination of the content of the general principles of judicial review: some of these are certainly context-dependent but others have a hard-edged, rule-like quality. Furthermore, although judges must invariably make subjective judgement calls about whether lawfulness has been established in a given case, the judgement call falls to be made within the constraints of a doctrinal framework.

I address these propositions, and develop my responses, in turn in the following sub-sections. My touchstone throughout – as it was in A Theory of Deference – will be whether doctrine precludes certain outcomes in judicial review cases.

A.     The Constitutional Foundations of Judicial Review

First, debates about the constitutional foundations of judicial review are a distraction which do not provide any concrete guidance about the disposition of individual cases, as they are “powerless” to develop “determinate criteria of legality”.[4] Debates about whether the “ultra vires” doctrine or the “common law approach” provide the constitutional foundations of judicial review are merely arguments about “the substitution of one dubious dogma for another”.[5]

Here, I largely agree with Professor Allan.[6]

The ultra vires debate generated more heat than light.[7] The opening salvos were fired by Professor Forsyth, who sought to reconcile judicial creativity in administrative law with the doctrine of parliamentary sovereignty, a normative argument premised on the supremacy of the legislature as the grundnorm of the common law constitutional system.[8] Next into the fray was Professor Craig, who sought to refute Forsyth’s arguments by virtue of a descriptive and historical analysis.[9] Professor Elliott added interpretive analysis to the literature[10] (to which Professor Allan also contributed[11]) at which point Professor Craig responded with further history and description.[12]

The primary difficulty is that these differing approaches had little or no bearing on any concrete problems that arise in judicial review cases. Indeed, I do not think Professors Allan, Elliott or Forsyth would take fundamental issue with Professor Craig’s proposition that the judges may develop the common law when there is a “reasoned justification” for doing so.[13] One could imagine that fidelity to parliamentary sovereignty might make jurists more likely to give effect to privative clauses, or to insist that unlawful administrative action is void rather than voidable, but enthusiasts for the supremacy of Parliament nonetheless look pride in insisting that privative clauses will often be ineffective,[14] and that invalid decisions can have a valid afterlife.[15] What matters, I would suggest, is the presence of a “reasoned justification” for a course of judicial action in a given case.

Relatedly, these differing approaches were animated by different methodologies. Professor Forsyth’s argument was normative; Professor Craig’s was descriptive; and Professor Allan and Elliott’s was interpretive. As methodologies can be evaluated only in their own terms – the proof of the pudding is always in the eating[16] – none of the participants could land a knock-out blow. A normative argument cannot be refuted by descriptive analysis; and interpretation cannot disprove description. As I have commented: “To students reading the angry back and forth in the pages of the law journals, the Professors might seem to be gladiators fighting to the death in the Colosseum. From my perspective they resemble nothing more than ships passing quietly in the night”.[17]

None of the foregoing should be taken to suggest that the debate was bereft of value. On the contrary, it generated many useful insights into the permissible scope of judicial law-making and the deep philosophical commitments of participants in the debates.[18] But Professor Allan’s scepticism about the practical utility of the debate was well founded.

[1] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429. I will refer to this article throughout this section. Although the issue is not addressed at length in Professor Allan’s subsequent work, such as The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, Oxford, 2013), I see little there to suggest that Professor Allan’s views have changed markedly over the years. See especially chapter 6.

[2] “Judicial Deference: Doctrine and Theory” (2011) 127 Law Quarterly Review 96, at p. 116.

[3] Paul Daly, “The Language of Administrative Law” (2016) 94 Canadian Bar Review 519, at p. 525.

[4] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 434.

[5] “Doctrine and theory in administrative law: an elusive quest for the limits of jurisdiction” [2003] Public Law 429, at p. 451.

[6] See further Paul Daly, “Plural Public Law” (2020) 51 Ottawa Law Review 395, at pp. 412-414.

[7] Christopher Forsyth, “Heat and Light: A Plea for Reconciliation” in Christopher Forsyth ed, Judicial Review and the Constitution (Hart, Oxford, 2000).

[8] Christopher Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” (1996) 55 Cambridge Law Journal 122.

[9] Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998) 57 Cambridge Law Journal 63.

[10] Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford, 2001).

[11] “Constitutional Dialogue and the Justification of Judicial Review” (2003) 23 Oxford Journal of Legal Studies 563

[12] Paul Craig, “The Common Law, Shared Power and Judicial Review” (2004) 24 Oxford Journal of Legal Studies 237.

[13] Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998) 57 Cambridge Law Journal 63, at p. 89.

[14] See e.g. Christopher Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” (1996) 55 Cambridge Law Journal 122, at p. 132.

[15] See e.g. Christopher Forsyth, “‘The Metaphysic of Nullity’ Invalidity, Conceptual Reasoning and the Rule of Law” in Christopher Forsyth and Ivan Hare eds., The Golden Metwand and the Crooked Cord: Essays in Honour of Sir William Wade QC (Oxford University Press, Oxford, 1998).

[16] Peter Cane, Controlling Administrative Power (Cambridge University Press, Cambridge, 2016).

[17] Paul Daly, “Plural Public Law” (2020) 51 Ottawa Law Review 395, at p. 413. See also Alison Young, Democratic Dialogue and the Constitution (Oxford University Press, Oxford, 2017), at p. 89.

[18] See e.g. David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?” in Christopher Forsyth ed., Judicial Review and the Constitution (Hart, Oxford, 2000); Sarah Nason, “Methodological Pluralism and Modern Administrative Law” in Dimitrios Kyritsis and Stuart Lakin eds., The Methodology of Constitutional Theory (Hart, Oxford, 2022).

This content has been updated on October 1, 2022 at 15:52.