Constitutional Authority and Judicial Review: A Common Law Theory of Ultra Vires

What justifies the High Court’s power to review exercises of the non-statutory powers of government officials? The conventional answer would run that the Court acts as a kind of agent for Parliament; as Parliament is sovereign in the British constitutional order, all powers and their limits derive from parliamentary intention. This proposition, however, has been the subject of intense disagreement among British public lawyers in the context of powers held by non-statutory bodies. The ‘ultra vires debate’ pitted this traditional view against a powerful critique that the courts impose common law ‘principles of good administration’ on all repositories of administrative power, independently of Parliament. The debate ultimately burned itself out; a kind of consensus by default emerged around a modified version of the ultra vires theory. The non-statutory powers of the Crown reignite the debate in a new and more challenging context. This is particularly the case for the so-called ‘third source’ of governmental authority—a set of powers or capacities said to inure in the Crown in virtue of the Crown’s legal personality.

The Crown is an arcane legal figure, frequently misunderstood. Rather than shying away from the ‘clanking of medieval chains’, however, we must explain it. This begins with a basic analysis of institutions and the powers they wield. Applying the concept of ‘institutional facts’ drawn from John Searle’s social ontology and Neil MacCormick’s institutional theory of law, this thesis builds a model of constitutional authority that can be used to answer the question posed above. The result is a greater emphasis on the concept of office and official powers, which suggests a vires-based account of judicial review. This differs from traditional explanations of the supervisory jurisdiction, however, in several respects. First, it is based on a fundamental account of constitutional authority, which our unwritten constitution entails a contingent relationship only with legislative intention. Secondly, for this reason, ultra vires review applies to the Crown’s non-statutory powers. Thirdly, when applied to Parliament, the model of authority it rests on entails that Parliament has limited vires which may, in appropriate cases, be amenable to judicial control

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