affiliated to the International Association of Constitutional Law
Drawing on English, American and Canadian material, I develop in A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012) a unique approach to judicial review of administrative action. Animated by a desire to inspire change rather than wholesale implantation, I elaborate a comprehensive theoretical approach which is not tied to any particular jurisdiction. Bringing the intractable ultra vires debate to a friendly resolution was not a goal of mine (though useful sources of inspiration sprung from the debate). Nevertheless, I realized to my surprise that I might have something of relevance to say. Resolving the dilemma at the heart of the debate was beyond me: I baldly assume that judicial review is legitimate and thereby dodge the central dilemma entirely. But my approach to substantive review has something to say to both sides of the ultra vires debate. First, let me outline my approach. Second, let me amplify its implications for the ultra vires debate.
The Basis of Curial Deference in Administrative Law
I have two arguments here, one based on the delegation of authority by legislatures to administrative decision-makers, the other based on what I call practical justifications for curial deference. My delegation argument is that because the legislature has delegated (or granted – nothing turns on the terminology) variable degrees of power to administrative decision-makers, courts must also follow a variable approach in order to give effect to legislative intent. A uniform approach to judicial review would be inapposite in an era of many and varied administrative decision-makers with many and varied powers. If the same standard of review were to be applied, then the legislative choice to delegate varying degrees of power would be undermined. With such varying levels of power and such different administrative decision-makers, it would be contrary to legislative intent to apply the same standard of review across the board. Not, I hasten to add, legislative intent in some sort of literal, ‘voices in the air’ sense. Rather, legislative intent as evidenced in individual statutes and the statute book as a whole.
My practical justifications argument also flows from an obligation to take statutes seriously and runs as follows. Just as a variable standard of review would be necessary if the legislature directed courts to develop and implement one, reference to the reasons whydelegation took place would also be necessary if the legislature directed it. If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider. I identify four: expertise, complexity, democratic legitimacy and procedural legitimacy; as with delegations of power, these vary from statute to statute. The judicial task in this context is to ascertain by reference to the statute, and the statute alone, what plausibly can be taken to have influenced the legislative decision to delegate power.
Taking statutes seriously, then, leads to the conclusion that the intensity of judicial review ought to vary. How variable standards of review are implemented may vary from jurisdiction to jurisdiction: England has its super-, sub- and plain-vanilla Wednesbury unreasonableness, for example. I urge courts to employ a general conception of unreasonableness. To simplify greatly, what is unreasonable will be determined in individual cases by application of considerations drawn from the rule of law and principles of good administration. Where do judges get the authority to do this? On my account, a consideration of individual statutes and the statute book at a whole will suggest that courts should develop variable standards of review. Variable standards of review have to be implemented somehow. Unreasonableness, given its central importance in administrative law and its pliability, is as good a tool as any. In other words, taking statutes seriously opens up space for judges to apply the rule of law and principles of good administration.
The Ultra Vires Debate
For many years the orthodox English position was that the ultra viresprinciple was the keystone of judicial review. The legislature delegated authority within certain parameters which the courts would police, thereby giving effect to the intentions of the legislature: the judiciary was faithfully imposing on the executive limitations laid down by the legislature in statutes. However, as the ‘common law’ theorists pointed out, in reality judges were fashioning principles of good administration. They were doing so of their own volition, independent of legislative intent, and the ultra viresprinciple was merely a ‘fig-leaf’. Defenders of the orthodox position, although agreeing that the ultra viresprinciple was a fig leaf, considered it a vital one, hiding the immodesty of the courts’ challenge to parliamentary sovereignty. For, if courts were fashioning independent principles of good administration, these were, surely, fetters on the sovereignty of Parliament.
Nonetheless, the orthodox account remained deficient. The ultra viresprinciple needed to be re-conceptualised to accommodate the intentions of Parliament and the creative role of the courts in developing principles of good administration. Grasping the nettle, the defenders of orthodoxy argued that Parliament, save where it clearly indicates otherwise, intends to legislate in conformity with the rule of law and must to be taken to legitimate the courts’ role in developing the principles of good administration. As Mark Elliott explained:
While the details of the principles of review are not attributed to parliamentary intention, the judicially-created principles of good administration are applied consistently with Parliament’s general intention that the discretionary power which it confers should be limited in accordance with the requirements of the rule of law.
Because descriptive accuracy is sacrificed for theoretical consistency, even its supporters had to admit that this ‘modified ultra viresdoctrine’ was formal and conclusionary in nature. But if the ultra viresprinciplecan be relied upon to justify any decision reached by a reviewing court, the judicial obligation to give effect to legislative intent may be dissolved in an elixir of judicial creativity. For the ‘common law’ theorists, the development of judicial review is almost entirely divorced from legislative intent. Only where the legislature affirmatively specifies grounds or standards of judicial review is legislative intent said to be relevant. Judicial review would develop, on this approach, in splendid isolation from statutory language, limited only by some variant on the following principle proposed by Paul Craig: it must ‘reflect the considered judgment of the courts at that time that this was the best reading of the rule of law’.
My approach to legislative intent charts a middle course between two extremes: the common lawyers discount statutory provisions save for those extremely rare instances in which the legislature affirmatively specifies clear rules for the conduct of judicial review; and the traditionalists identify legislative intent with doctrines developed by judges. In fact, once it is accepted that judicial review is legitimate, legislative intent can play an important role in shaping the general principles of judicial review, suggesting, in particular, the development of variable standards of review. The principles of good administration need not be marginalised and will be relevant to determining whether or not a decision survives the appropriate standard of review. Following my approach, the fundamental insight of the common law theorists – that it is for judges to develop the general principles of judicial review – is incorporated, but the judicial role is relocated in such a way as to give more prominence to legislative intent, thus avoiding what Elliott described as the ‘substantial implausibility which is involved in the assertion that the complex principles of good administration simply spring from Parliament’s legislative silence’.
In short, legislative intent need not be treated as marginal, or as an empty vessel into which judicial review doctrine can be poured. Taking statutes seriously is thereby a ‘third way’ of approaching the ultra vires debate.
Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at email@example.com. He blogs at administrativelawmatters.blogspot.com.
Suggested citation: P. Daly, ‘Taking Statutes Seriously’ UK Const. L. Blog (26 July 2012) (available at http://ukconstitutionallaw.org).