Ultra Vires Doctrine in Constitutional Law

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Questions and Answers

What is the central principle of administrative law, as described in this article?

The central principle of administrative law is that a public authority may not act outside its powers (ultra vires).

What are the two main camps of thought regarding the principles of judicial review, as described in this article?

Those who believe that judicial review is based solely on legislative intention and those who believe that it's based on judicial creativity. (correct)
Those who believe in a strong role for Parliament and those who believe in a strong role for the judiciary.
Those who believe judicial review is necessary and those who believe it should be abolished.
Those who believe in strict adherence to the rule of law and those who believe in flexible interpretation of the law.

Sir William Wade argues that judicial review should be limited solely to the justification of legislative intention.

True (A)

According to Forsyth, what is the consequence of abandoning the ultra vires doctrine?

According to Forsyth, abandoning ultra vires would challenge the supremacy of Parliament, as it would imply that the courts have the power to limit administrative action without relying on the legislative will. Signup and view all the answers

Laws argues that judicial power is unlimited.

True (A) Signup and view all the answers

What does Forsyth argue must logically either coincide with or cut across the scope of power that Parliament confers?

Forsyth argues that any limits that the courts impose on power conferred by Parliament must either align with or go beyond the scope of the original grant of power. Signup and view all the answers

What two things are crucial to be aware of when approaching the power that the courts exercise over the executive branch through judicial review?

When considering the courts' power over the executive through judicial review, it's essential to be mindful of the delicate balance of power between the branches of government and the importance of ensuring that the courts do not exceed their allotted constitutional authority. Signup and view all the answers

Craig argues that the grounds of judicial review are simply part of the common law.

True (A) Signup and view all the answers

What does Forsyth argue regarding the relationship between legislative intention and judicial review?

Forsyth argues that any requirements of fairness and rationality in administrative decision making must either be stipulated explicitly by Parliament or implied within the grant of power, making the courts' imposition of such requirements ultimately improper. Signup and view all the answers

What is Laws's primary critique of Forsyth's arguments?

Laws critiques Forsyth's argument by arguing that the absence of a legislative prohibition does not imply a legislative permission. Laws contends that the existence of a legislative permission is not the only possible outcome, highlighting the role of the common law and the concept of an "undistributed middle." Signup and view all the answers

What is the "wall-to-wall" view of parliamentary sovereignty?

The "wall-to-wall" view of parliamentary sovereignty suggests that all authorities and prohibitions must originate from Parliament. Laws argues that this perspective is too narrow and fails to account for the potential existence of an "undistributed middle". Signup and view all the answers

According to Laws, what is the consequence of mistakenly assuming that the existence of a legislative permission is necessitated by the absence of a legislative prohibition?

Laws argues that this assumption results in an implicit mistake, neglecting the notion that there might be situations where neither legislative authorization. Forsyth also mistakenly equates legislative supremacy with the idea that legislation governs all areas, rather than recognizing that Parliament only legislates when it's deemed necessary. Signup and view all the answers

What is the point of Laws's argument that Parliament's intention cannot be interpreted as an exhaustive set of conditions for the exercise of power?

Laws argues that assuming Parliament's intention to be exhaustive of all limitations ignores the potential for other limitations to arise, including those established by common law. He contends that the common law has a role in filling the gaps where legislative intention does not exist. Signup and view all the answers

What is the first possibility of possible views on the role of parliamentary intention in judicial review?

The first possibility is that Parliament does not intend for any implied limits to be imposed on a discretionary power, meaning that only explicitly stated limitations should be enforced by courts. This would effectively limit judicial review to a purely literal interpretation of legislative intent. Signup and view all the answers

What is the second possibility of possible views on the role of parliamentary intention in judicial review?

The second possibility is that Parliament explicitly intends to create a detailed framework for the application of discretionary power in accordance with the principles of good administration, which is a highly unlikely and unrealistic view of the legislative process. Signup and view all the answers

The traditional ultra vires doctrine is unable to adequately explain the development of administrative law over time.

True (A) Signup and view all the answers

What is the modified ultra vires model proposed by the author?

The modified ultra vires model acknowledges the evolving nature of the rule of law and sees the courts as actively shaping the development of administrative law through time. This approach emphasizes the courts' role as guardians of the rule of law and recognizes that judicial review is not simply a mechanical application of legislative intent. Signup and view all the answers

The modified ultra vires model is primarily based on an understanding of legislative intention.

False (B) Signup and view all the answers

What is the primary challenge posed by ouster clauses to the traditional ultra vires doctrine, as identified by Craig?

Ouster clauses, which seek to exclude judicial review of certain decisions, present a challenge to the idea that judicial review is solely about implementing legislative intent. This challenge arises because the legislature's clear statement of intent to prevent judicial intervention contradicts the traditional view of judicial review as ensuring compliance with Parliament's will. Signup and view all the answers

Explain the tension presented by ouster clauses in relation to the rule of law.

The presence of ouster clauses creates a tension with the rule of law because they appear to conflict with the deeply ingrained principle that the courts must be open to citizens. While the literal interpretation of the clause may seem to prevent judicial review, the broader principle of access to justice and the rule of law strongly favors allowing individuals to seek redress through the courts. Signup and view all the answers

How does the author suggest that the courts reconcile the apparent contradiction between ouster clauses and the rule of law?

The author argues that the courts should approach the interpretation of legislation in a way that is consistent with the rule of law, meaning that they should assume Parliament intends to act in accordance with the rule of law unless there is clear evidence to the contrary. This interpretive approach allows the courts to balance the literal meaning of an ouster clause with the broader constitutional imperative of ensuring access to justice. Signup and view all the answers

What is the challenge posed by the exercise of prerogative and de facto power to the traditional ultra vires doctrine?

The traditional ultra vires doctrine, focused on legislative intention, struggles to explain the justification for judicial review of non-statutory power. The exercise of prerogative and de facto power, not originating from Parliament, appears to fall outside the scope of the traditional view that emphasizes the courts' role in upholding the legislative will. Signup and view all the answers

What is the author's argument for reconciling the justification for judicial review of statutory and non-statutory power?

The author proposes that the rule of law provides a unifying foundation for judicial review across all types of power. While acknowledging the importance of legislative intent in the context of statutory power, the author argues that the rule of law allows the courts to directly enforce fairness and rationality in relation to non-statutory power, avoiding the need to separate these justifications into distinct categories. Signup and view all the answers

The author suggests that the traditional ultra vires doctrine has been able to account for the courts' application of the principle of proportionality in judicial review.

False (B) Signup and view all the answers

What is the author's argument for incorporating the development of administrative law into the traditional ultra vires model?

The author argues that the development of administrative law ought to be understood as an evolution of constitutional norms and principles, reflecting the changing landscape of the rule of law. The courts' active shaping of these norms and principles is a natural process, and the development of administrative law is consistent with the broader constitutional framework, rather than requiring an overly narrow focus on legislative intention. Signup and view all the answers

How does the author describe the courts' role in relation to ouster clauses?

The author argues that the courts have a responsibility to interpret ouster clauses in a way that is consistent with the rule of law, avoiding a literal interpretation that could result in a contradiction between the literal text of the law and the broader constitutional principle of ensuring access to justice. Signup and view all the answers

What is the author's argument for incorporating the principle of proportionality into the modified ultra vires doctrine?

The author contends that proportionality, as a principle of good administration, can be understood as a legitimate development of the rule of law and is therefore compatible with the modified ultra vires model. By viewing proportionality as part of the evolving rule of law, the author challenges the notion that judicial review is solely grounded in Parliament's will. Signup and view all the answers

According to the author, what is the key to reconciling the justification for judicial review of statutory and non-statutory power?

The key, according to the author, lies in recognizing that the rule of law provides a unified foundation for judicial review, regardless of the source of power. This broad principle applies to both statutory and non-statutory forms of power, ensuring that the courts can appropriately apply the same principles while fulfilling the constitutional imperative of upholding the rule of law. Signup and view all the answers

What is the primary argument against the modified ultra vires model according to Craig?

Craig argues that the modified ultra vires model cannot adequately address the challenge presented by legislative provisions that explicitly seek to exclude judicial review. The traditional view of judicial review as implementing legislative intent is problematic in these cases, and Craig suggests that the modified model fails to offer a convincing explanation for how the courts can effectively reconcile the rule of law with these provisions. Signup and view all the answers

What is the author's response to Craig's criticism of the modified ultra vires model?

The author counters Craig's argument by emphasizing that Parliament is presumed to intend to legislate in accordance with the rule of law, even in the absence of clear legislative direction. This presumption allows the courts to interpret legislation in a way that reflects the rule of law, even in the face of ouster clauses that seek to limit judicial review. The author argues that this approach aligns the modified ultra vires model with the broader constitutional principles of the British legal system. Signup and view all the answers

The author acknowledges that the modified ultra vires model may not provide a satisfactory explanation for all instances of judicial review.

True (A) Signup and view all the answers

What is the author's overall argument for the modified ultra vires model?

The author argues that the modified ultra vires model, grounded in the rule of law, provides a more coherent and comprehensive framework for understanding judicial review than the traditional model. The modified model recognizes the importance of both legislative supremacy and the rule of law, allowing for a more flexible and responsive approach to the development of judicial review over time. Signup and view all the answers

What is the author's main conclusion regarding the importance of the ultra vires doctrine?

The author concludes that the ultra vires doctrine, properly understood within its constitutional setting, provides a valuable and essential framework for understanding the relationship between Parliament and the courts in administrative law. It allows for a coherent approach that recognizes both the supremacy of Parliament and the central importance of the rule of law, ensuring a more effective and flexible system of judicial review. Signup and view all the answers

Flashcards

Ultra Vires Doctrine

In administrative law, the principle that a public authority cannot act beyond its legally granted powers.

Judicial Review

The power of courts to examine the legality of actions taken by governmental bodies.