Intention, Supremacy and Judicial Review

Abstract

Two competing theories have emerged as providing the constitutional basis for judicial review in the English courts: the ultra vires theory and the common law theory. Both attempt to rationalise the operation of judicial review in a way which is consistent with the doctrine of parliamentary sovereignty. They differ in their conceptions of what the doctrine requires. It is inherent in the ultra vires theory that sovereignty requires adherence to Parliament's assumed intent whereas under the common law theory it simply requires adherence to Parliament's legislation. The supporters of the former theory submit that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power; indeed, that this is the only plausible assumption to make. I examine these claims. I argue that we cannot accurately ascribe any intention to Parliament and, consequently, we cannot claim that a particular assumption about Parliament's intent is the only one we can plausibly make. I also challenge the argument that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power. I contend that this assumption is only necessary if sovereignty does indeed require adherence to Parliament's presumed intent but that this is not how we usually think of the doctrine; rather, parliamentary sovereignty is traditionally taken to prohibit the courts from acting contrary to Parliament's legislation, not its intention. Finally, I argue that reliance on legislative intent brings possible disadvantages.