 Good evening and thank you all for joining us this evening. My name is Arjun Dhar and with Julia we are speaker secretaries at the Cambridge University Law Society. Before we begin I would like to thank our speakers program sponsor Clifford Chance. Clifford Chance is a world-class law firm which values its relationship with the Cambridge University Law Society to secure some of the best and brightest future lawyers for the firm. Clifford Chance have opportunities for students from first year onwards. You can find out more by visiting their website. Now without further ado I'd like to hand over to Professor Allen. Good evening. My job is to introduce our two eminent speakers this evening. They're going to give us their views about the constitutional foundations of judicial review. They hardly need any introduction from me but as you know Professor Paul Craig is Professor of Law at Oxford. He is a very eminent authority on administrative law not only in the UK but as his recent hand-learned lectures show he's an expert on UK, EU and indeed global administrative law. Professor Christopher Forsythe was recently the Sir David Williams Professor of Public Law here at Cambridge and he is of course the current author of Wade Forsythe on administrative law. So I'm going to ask each of them to talk for just 15 minutes which will be quite a task and in that 15 minutes they'll summarize their understanding of the correct way to conceive of the foundations of judicial review. And I don't know who wants to begin. We haven't settled that. I thought Christopher was beginning. So Professor Forsythe will begin. I see the notes that I made from my Roman law lecture in this room earlier today which I see there are many attendees, first year students who came to my Roman law lecture and have now come to this lecture so you're probably going to have more than enough of me. I of course may get confused and start to like lecturing a spot of Roman law to keep us going. I was never that keen on ultra-viraries but I was driven to it and I was driven to it by what I've termed pragmatic reasons and also profound constitutional reasons. And the pragmatic reason really arises from the fact that I first learned administrative law a long way away from Cambridge in South Africa. And so I kept an eye on South African administrative law and knew there was a case called State President against the UDF. Before we go into this case I'll just say in South Africa there was a sovereign parliament no protection of human rights. This is before the political transformation. Sovereign parliament no protection of fundamental rights. And the state of emergency was declared by the state president in terms of his powers under the Public Safety Act of 1953 and claimants wanted to challenge some of the emergency decrees and the chief ground of challenge was that the emergency decrees were too unclear, too uncertain to be able to act as a guide to conduct. The trouble was there was an ask to clause. The ask to clause said no decree made in terms of this act shall be called in question in any court of law. So the challenge to the decree is made. And at first instance and on the first appeal there asked to clause argument losers on a classic administrative law reasoning. It said the requirement that the emergency decree should be clear is implied from the statute. It's something that parliament's taken to have in mind in enacting the Public Safety Act and the ask to clause that they're in. And therefore the unclear statute, sorry the unclear decree is made outside the powers of the state president under the act and so it's not made in terms of this act and so it's not caught by the ask to clause. It's classic reasoning based upon the English case of Anismanic that you should become familiar with if you're not familiar with now. When it got to the court that is now the Supreme Court of Appeal in South Africa it was called the Appellate Division in those days. There cunning lawyers had picked up that there was criticism being made in England of the ultra virus doctrine. And so the argument was put to the Supreme Court of Appeal that indeed the decrees had to be clear but that requirement came from the common law not from the ultra virus doctrine. And consequently they were made in terms of the act. They were introvirates, they were made in terms of the act and so they were not caught by the ask to clause. Sorry they were caught by the ask to clause. Professor Craig's criticism of the ultra virus doctrine was specifically referred to by the court and adopted. Professor Wade's defence of the ultra virus doctrine was considered and rejected by the court. And so they came to the conclusion that the emergency decree fell within the terms of the ask to clause. The unclear decrees were made in terms of this act and so the ask to clause prevented judicial review. That argument effectively made ask to clause as a work and judicial review in South Africa was completely eviscerated until the political transformation that you will be aware of. And I thought this is something that makes me think that you shouldn't throw out the ultra virus doctrine for fear of getting thrown out the baby with the bathwater. And that's my pragmatic reason why I found myself being driven into the ultra virus camp. I saw the dangers and I knew what could happen. The evisceration of judicial review with the result of Anisman it had been overturned. That's my first pragmatic reason. But my principled reason then flowed from the fact that we have a sovereign parliament. I don't want to be too dogmatic about that in the presence of such an eminent critic of the sovereignty of parliament as Professor Allen but there's no escape in it. Every single judge who heard the Miller case first instance and on appeal before the Supreme Court every single judge who heard the Miller case approved of Dicey's classic formulation that with us parliamentary sovereignty means that parliament can make or unmake any law at all. It's not a question of whether you like parliamentary sovereignty or whether you don't. You cannot wish it away. And given that we've got a sovereign parliament how does this fit in with first in the foundations of judicial review in the common law? Suppose a decision maker complies with every requirement laid down by parliament expressly or impliedly for the validity of his decision. Decision maker complies expressly or complies with every requirement for validity express or implied. Perhaps the common law comes along and says there's an extra requirement. Legal representation in this hearing is not required. That's what the common law says in these circumstances. Or perhaps the common law wants to change one of the requirements for validity. There doesn't have to be an oral hearing, for example. Perhaps the legislate having said that there doesn't need to be an oral hearing in these circumstances. The common law wants to make the hearing oral. Presuppose compliance with every requirement laid down expressly or impliedly by the statute. If the common law comes up and says there is an extra requirement to be added in it is challenging parliament's power to specify what the requirements for validity are. And so it is challenging the supremacy of parliament. So if you criticise that the ultra-virus doctrine and wanted to be abandoned, you must face up to the task that you have to criticise the sovereign parliament as well. And I'm pleased to say that Professor Allen agrees with me on that basis. At least in his 2002 Cambridge Law Journal article he says this, despite their protestations to the contrary, the common law theorists cannot reasonably object to ultra-virus in its very modest, modified version while continuing to accept absolute parliamentary supremacy. In this sense, Christopher Forsythe is right to maintain critical critiques about the sovereignty of parliament. Those that do not explicitly challenge the sovereignty of parliament are whether they intend it or not to transmute it into strong critics who do challenge the supremacy of parliament. Insofar as the common law basis for judicial review is offered as a viable and genuine alternative to legislative intent broadly understood, it entails at least a limited qualification of legislative power. I agree with every word of that. So you are driven to it. Abandoned ultra-virus, you have to abandon the sovereignty of parliament too. And that's what I'd like the late motif to be of this debate, although it seldom turns out that way. How do you reconcile the creativity of the judiciary in developing the principles and details and nuance of the principles of good administration? How do you reconcile the creativity of the judiciary in developing the principles of good administration with the supremacy of parliament? My answer is straightforward. The modified ultra-virus doctrine, you say, as is perfectly reasonable and plausible, that when parliament allocates a power to make a particular decision, parliament intends that that decision-making power should be exercised in a way that is fair and reasonable. And the judges then, when they say whether it is fair and reasonable on a judicial review or whatever, are doing what parliament intended. How do you reconcile the supremacy of parliament with the creativity of the judges? There is an inevitable tension in our constitutional order between the supremacy of parliament and the creativity of the judges. It seems to me that the modified ultra-virus doctrine is the best reconciliation of that issue so far declared. I'll end with one final point. I would claim one thing for my original article, Fig Leaves and Fairytale article that kicked off this debate. I would claim one thing for it. Before the Fig Leaves article, there was a buffet approach to the ultra-virus doctrine or the basis of judicial review. If you liked the ultra-virus doctrine, you could take it from the buffet. You left it there and you took the common law instead. And you took something else that you might like. Without regard to the constitutional consequences and the pragmatic consequences of abandonment. And with my Fig Leaves article, put those two issues on the table. And I think that that was a good thing for it to do. And that's undone until questions. Good afternoon, everybody, or good evening. It's a great pleasure to be here. There's a slight sense of deja vu all over again because Chris and I did this a few years ago. I can't remember quite how many, but probably before your generation of students. You won't be surprised to know that I don't agree with much of that. But I'm going to take us through a little slideshow at rattling speed because I've only got a limited amount of time to try and explain why, although I respect the argument, I don't believe it's correct, either pragmatically or in normal terms. So the foundations. We have a core claim that the precepts of review must be based on legislative intent since if this were not so such review would constitute a strong challenge to the sovereignty of parliament. That's the point that Chris has just reiterated. And that's supported. That's the cornerstone of the Altavari school. The advocates of the common law school reject it. They accept that if such intent exists, it will indeed be taken into account by the courts in precisely the same manner as in any other area where such intent may exist. They reject the claim that such intent must exist in order to prevent a strong challenge to sovereignty. So again, rattling through some of this stuff which is fairly well known. Of course, two different senses of intent, legislative intent, specific and general, specific intent. Parliament has intent as the meaning of how each particular head of review should apply in each statute and in that sense, if they did have it, could validly be said to be author or part author of the resulting doctrine. The model of general legislative intent by way of contrast is predicated on the following idea. Parliament is taken and again, Chris iterated this in his own talk a moment ago. Parliament is taken to intend that its legislation conforms to the basic principles of fairness and justice which operate in a constitutional democracy. However, because Parliament itself cannot realistically work out the precise ramifications of that general idea. It leaves or delegates power to the courts to work out how the precepts of JR, to work out the precepts of JR in accord with the rule of law. Now, again, as we heard at the tail end of Christopher's speech, the UV score is based primarily now on general legislative intent, GLI, not specific legislative intent, SLI, and it's also known as the Modified Ultravirus Doctrine. The general reason why most people have dumped the SLI model is that the empirical foundation for it is completely lacking. Parliament does not invent a specific legislative intent in relation to each and all the different facets of JR concerning each and every piece of legislation. It is a chimera and a fiction. Okay, just moving on very quickly just to clear the ground before we get into the really serious stuff. There aren't particular doctrinal consequences which flow from adherence to the two models. There are not, and I'm not claiming there are. There are constitutional implications but there aren't necessarily doctrinal implications. But the real reason why there are no doctrinal implications is actually the second reason, which I can jump to for exigencies of time. The Modified Ultravirus doctrine is a completely empty vessel. Actually, if I'm being more provocative, it's really actually a modified common law doctrine. That's what it's really about. It's really a modified common law doctrine. The real reason why, the real reason why there's not a difference between the common law model in terms of the... Seriously, the real reason why there's not a difference between the Modified Ultravirus doctrine in terms of ultravirus theory and the common law doctrine in terms of doctrinal consequences is that, by its own statement, the Modified Ultravirus model is an empty vessel. It is simply a wrong foie back to the common law to justify whatever the common law puts into the model at any point of time. It has no independent self-standing content of its own. Okay. Now, to the business end of business, the really important end of business. There's got to be a rationale for this claim. There's got to be a foundation for the claim that adherence to the common law model entails a strong challenge to the sovereignty of parliament. And there are three arguments which can be discerned, and they are what I've termed an analytical argument and an empirical argument and a theoretical or normative argument. Each of them is important, and I will look at each of them in turn. Now, the analytical argument is the one that Christopher iterated in his important Cambridge law journal article, and he repeated it a moment ago. And the analytical argument is the one that we have in front of us on this slide now. And it is a key argument, and it basically goes as I have set it out here. What an all-powerful parliament did not prohibit, it must be taken to authorize expressly or impliedly. Therefore, all elements of JR must be cloaked with legislative intent. If that were not so, the assumption would be that parliament did not intend the constraints on statutory power to exist, and therefore judicial imposition of such limits would amount to a strong challenge to parliamentary sovereignty that I think is a faithful explication of Christopher's argument. There are three central difficulties with this argument, any one of which will knock it out, but there are three. First, and actually really quite dramatically was people, and this seems to me really quite an important point, and people aren't locking on to it, and with respect, Christopher just glided over it in what he said. The argument only gets off the ground on a model of specific legislative intent. It makes, with respect, no sense in a model of general legislative intent to try and pose the question that you have on this slide in the context of a model of general legislative intent is simply not a meaningful question. It may be meaningful to ask in relation to a particular head of review. It might be meaningful to ask in relation to a particular head of review. Did in this statute parliament intend the course of substitute judgment on all questions of law? Then you run through this analytical argument on this slide. Or did parliament intend in relation to another statute for rationality review to be high intensity or low intensity? And then you run through this argument. It might be possible in relation to a third kind of statute to say did parliament really intend for there to be legal representation by barristers. And then you run through this argument again. The argument only makes sense if you're running a theory of legislative intent which is specific legislative intent. You cannot ask this question on a model of general legislative intent or the modified ultra bias doctrine. You just try and formulate that question in the context of the MUV model, formulate it, try and formulate it in a way which makes sense in the light of that analytical reasoning. You can't do it because the analytical reasoning itself is geared to the specific legislative intent model. So you can't buy both. The second reason is that the analytical argument is predicated on the assumption that parliament must have an intent about something one way or another. And that's simply not true. There's a lot of theoretical literature which tells us, and I don't have a chance to go into this theoretical literature, but there's very good legal and philosophical literature which says that there's lots of things that people don't have an intent about one way or another. Now, if you think, oh, well, how does that play out? Why is that relevant in this context? Take the following example. Take a classic issue that we debate in a Ministry of Law doctrine the whole time, which is the test for review for error of law. We all know there's going to be some review for error of law, but what is the precise test going to be? Now, we have a range of possible tests which are set out on the second indent of this slide. And I think there are seven or eight possibilities. They quickly to run through them. You could say court should substitute judgment on all errors of law. Court should be able to substitute judgment on jurisdictional errors of law. They should substitute judgment on some issues and exercise rationality review on others. They should show greater deference to legal determinations made by tribunals but not by others. The intensity of review should be based on functional considerations or that there should be no distinction between review for law and fact. Now, the reality is that the legislature is likely to have absolutely no intent one way or another on those respective options. And the choice between them is the real doctrinal issue faced by courts in this country and in every other country. Why is this important for the consequence which is etched out on the third indent? It cannot be contended that legislative intent is necessary to prevent a strong challenge to parliamentary sovereignty since that argument is premised on the assumption that parliament has a definite or definitive intent on the particular doctrinal issue one way or another. If it does not and I repeat I think you're living in fairytale land if you think it does in relation to those previous aid options if it does not then the courts can choose between any of those available options without fear of infringing sovereignty. That's a second difficulty. Third difficulty is really important when we're liars to think outside the box and to think of the consequences of adopting a particular line of reasoning and see what its implications are more broadly. And this is something that with respect the outrovarious school has never woken up to. And this is the problem if the answer is if they're correct then it has the following consequence that legislative intent must equally be regarded as the foundation for all bodies of law including contract or cross property restitution and the like where the common law principles are read into legislation. Okay then you just have to go out and convince all the private lawyers that they've been thinking about the wrong thing the private law is not really based on dignity, equality or whatever else they want to argue about all day long but it's really based on legislative intent. Why? Why is this so? For the reason set out in that third indent legislation every day of the week private law legislation every day of the week is read subject to common law principles of contract or tour. Sale of goods legislation is read subject to common law principles of contract occupies liability legislation is read subject to tour principles straight private law stuff all the time. Okay, if the analytical argument is correct then we must equally cloak the application of such common law principles to statutes with legislative intent in all areas of the law. So with respect I don't buy the analytical argument and I do not accept that we have to buy into it in order to prevent a strong challenge of sovereignty. So actually we then move on quickly because there's an empirical argument and the empirical argument in effect goes like this while the SLI model the specific legislative intent model it was subject to the critique that it was empirically unrealistic fairytale land to assume that parliament had a specific legislative intent as to the application of JAR in a particular statute. General legislative intent and again Christopher put this eloquently a moment ago is said to be justified because it is empirically realistic that parliament could be regarded as having a general intent that administration should be subject to the general precepts or substantive and procedural legality. Okay, so there's two difficulties with this and again I've got limits of time so just to run through this very quickly the empirical argument firstly aligns approval and creation a general legislative intent could doubtless be posited for all manner of things including an end to child poverty international conflict economic recession and perhaps a no-deal Brexit but it could equally be posited for liberty, equality and human happiness. That does not mean that anything done by parliament necessarily had a causative impact including any of those things nor more importantly does it mean that its general approval was a necessary condition for the existence of liberty, equality and human happiness. So empirical proof of general legislative intent provides no evidence that the legislature had any role in the creation of the principles of JAR or that its approval was necessary for that creation the second difficulty mirrors the difficulty the third difficulty with the analytical argument. The argument proves too much it proves too much for the following reason if approval in this sense suffices for general legislative intent to be regarded as the foundation for JAR even if it played no part in its doctrinal creation the same must equally be true for all areas of the law. So we get all 630 members of the House of Commons we get them out into the fresh air we say top talking about Brexit for the moment come on to the commons in front of parliament tell us tell us now you really do accept that the administration should comply with the general precepts of the rule of law etc and they'll say yeah yeah yeah I think they should all be just and fair and all that and then they're all getting a bit cold it's a bit cold out there and they're all about to go in and you think great and then you call them out again and you say well do you think also that that the individuals in society should be subject to just principles of contract and tort and restitution and that equally you don't have time to make them so you delegate that power to the courts and they say yes of course we do of course we do the point I'm making here when I say the argument proves too much is that the empirical argument this idea that parliament would necessarily intend the precepts of good administration developed by the courts to be applicable you can make that argument equally in relation to what the common law courts do in relation to tort, contract, trust and any other body of law there is nothing distinctive about public law in that sense okay final, final part and then I'm done okay it is implicit in fact it's not implicit it's explicit in the ultra virus narrative that their view is necessary in relation in order to prevent a strong challenge of sovereignty now we've seen that the analytical argument I don't believe the analytical argument works for the reasons I said earlier but I also believe that the ultra virus model is based upon the conception of parliamentary sovereignty which is a possible conception but it just doesn't happen to be our conception of sovereignty you've got to distinguish between three different conceptions of sovereignty the classic continuing model of sovereignty is the one that we have okay it embodies the idea of legislative omnipotence in the sense of ability to change ability to change parliament has the last word and every parliament has the last word okay no substantive limits on parliament's power it can in theory legislate on any subject matter no procedural limits no 51% majorities or 2 thirds majorities or anything now note here the third part of this slide the consequence of this is that judicially created controls apply unless parliament has indicated otherwise in pursuance of its continuing sovereignty that's the implication and that's the model of JR with respect that we have worked with for 400 years that's exactly what the common law courts were doing in the 15th century onwards and that's how parliament viewed the courts the judicially created controls applied and if parliament in pursuit of its undoubted sovereignty if it wished to indicate the contrary then it could say so and over all or whatever what the courts were doing now the reality is that actually the whole argument from the ultra virus model is based upon a different model of sovereignty what I call monopoly and it doesn't constitute the model of sovereignty that we've had in the UK ever since the term sovereignty was worth coining the statutory monopoly model demands in addition in addition to what's in the first model it demands that an integral aspect of sovereignty is that any legal norm that impacts on legislation can only be legitimate if it has the approval of the legislature through some showing of legislative intent so it demands that parliament give prior approval to any limit or term read into legislation that's the condition of constitutional legitimacy the consequence here is that judicial power is contingent on finding such consent it does not suffice on this model that parliament can change reject or modify any conditions imposed by courts I don't have time to go through the parliamentary monopoly model it's even more far reaching now the ultra virus model is predicated on the assumption that sovereignty means the statutory monopoly model and the crucial difference between that and the classic continuing sovereignty model is this being all powerful in the sense of the continuing sovereignty model does not logically entail the conclusion that all constraints on legislation must necessarily be authorized by parliament ex ante in order to be constitutionally legitimate in the UK the constitutional reality as judged by history law and principle is adherence to the first continuing sovereignty model not the second and for that reason there is nothing at all odd unusual or normatively dangerous let alone normatively revolutionary in the courts through the common law based upon the rule of law developing and creating the tools of judicial review with parliament having the last word as it always does and of course let me make this clear when the courts develop those principles of judicial review then of course they are mindful of the legislation and of course they are mindful of fitting tools of judicial review into the legislation and into and take account of the relationship between courts and parliament underlies our constitutional democracy so it doesn't mean ignoring the legislation at all at the same time what it does mean is that it is perfectly legitimate in public law for the courts to develop those principles in exactly the same way perfectly legitimate for the courts of common law to develop principles of contract tort, restitution and trusts which are also read into legislation and the consequence there in those other areas is exactly the same as in public law if the court develops a principle of tortious liability or contractual liability and parliament doesn't like it either generally or in relation to that particular piece of legislation then it's entirely open to parliament to amend or repeal or overturn the particular doctrine. Thank you very much Thank you very much for those two expert summaries of some very complex arguments. We're short of time so I'm not going to say very much but I'll just say a few things to justify my being here Christopher says looking in my direction well Dicey told us that we have absolute parliamentary sovereignty Parliament can make and I'll make any law well that's true but Dicey said many other things as well and one of the things Dicey said often forgotten is that when the courts come to interpret the statute to decide what they mean very often the result is not to the liking of some of the MPs who voted for the particular bill in the first place in other words one question is who is the final authority of the legislator the other question is what does the legislation mean and the courts have the final authority on what a statute means and how it applies to a particular case whether you know Parliament has the last word it's a bit implausible because when it comes to a controversy the last word in a particular case is the courts word and the court has to interpret the statute in the light of constitutional principle so my own feeling is that maybe the gulf between these two positions we've heard tonight is not really quite as wide as it often seems at first sight I tend to think the talk of legislative intent here itself is rather unhelpful and misleading because it suggests that when we talk about legislative intent we're looking for some empirical historical intention that somebody may have held that we could discover if we look hard enough if we look perhaps hard enough in Hansard or whatever but that's a mistake I think because construing statutes is very complicated as we know and we have to try and set the statute in its constitutional context and nobody thinks the courts are not entitled to have regard to set a constitutional principle of course they have to try and make sense of the purpose of the statute but then that's often qualified by considerations of principle if I was actually the legislative intent is the product of our interpretation once we've interpreted the statute then we can work out what intent we attribute to the statute it's the end of our deliberations I think not some historical fact that we have to begin that we have to find to begin them so it's an interpretive construct I think and again the idea that the original I suppose the modified ultraviries theory was that Parliament had to have some special intention did each MP have to have an intention that particular kinds of controls in judicial review should be applied in relation to each particular statute well I don't think Professor Wade who was the main defender of ultraviries in his book ever thought like that Wade never I think thought that there had to be some specific intention of that kind so he must have had in mind something like what we now call the modified theory all along so I wonder whether this I'm sure will adhere me to my two friends here but I wonder whether we couldn't simply reconcile these two positions if we try hard enough why shouldn't we say that the ultraviries doctrine is really very useful at a technical doctrinal level because in cases like Anna's Minnick it enables us to explain really quite clearly I think why the ask the clause is not taken at face value too literally we know that we have to interpret the ask the clause in the context of the whole statute and we can say that a decision made completely outside the part ever granted by the statute to the public body is of course invalid a many reported determinations and no determination at all powers were never granted to do certain things and therefore we can see that an ask the clause can't be referring to that kind of decision so we can invoke the ultraviries doctrine and again it helps us to explain why we normally think that ultraviries decisions or invalid decisions are void there was never power in the first place to make that kind of decision so it's helpful at the doctrinal level but we can also see I think from cases like Anna's Minnick that it's the common law doing most of the important work here because it's the common law that decides how we should interpret the statute so what kind of weight we should give to ask the clauses how we should deal with them how we should make sense of the ask the clause but denying the point and purpose of the statute and granting the appropriate leeway to the public body so the common law and statute surely are working in harmony here I can't quite see why we shouldn't accept the ultraviries doctrine at the doctrinal level but say that it's underpinned by common law principle it's the common law constitution with the fundamental work and it's the common law constitution that tries to reconcile parliamentary sovereignty and the rule of law the rule of law including I think all these fundamental common law principles and the idea that we could have a constitution an administrative law that didn't apply as some of these basic ideas about relevant considerations proper purposes and so forth principles of natural justice I mean these really are fundamental to the rule of law in the sense that they're basic to our idea of law there must be limits to the extent to which parliament could do away with such principles because if we really took absolute parliamentary sovereignty literally it would enable parliament to defeat the rule of law and that would undermine our very idea of law we wouldn't really have an administrative law at all so it's always a question of balancing these fundamental principles and why could perhaps see the ultramarious doctrine and the common law theory as simply illustrating aspects of this attempt to achieve harmony between parliamentary sovereignty on the one hand and the rule of law and the other now I will allow the two speakers to respond to me if they wish but they might prefer for me to ask questions from the floor since we're quite short of time do I really want to respond to what I've just said well I would like just to say that I'd like to get on to the questions I'd like the audience to have an opportunity to ask questions but I do want one thing to say I read a whole article from many years ago called heat and light an attempt of reconciliation and it was completely ignored so I welcome your attempt and I hope it isn't ignored so the way Ryan was Paul are you so I too very briefly I too want people to be able to ask questions the only one to make one comment is that in the way that you put it I think it reveals the duality about the use of the term alphavirus which is actually dangerous and unhelpful because it's being used in two different ways which is why I tend to refer to a legislative intent model versus a common law model let's be clear on Patrick Alliance the Court of the Bill judge pointed this out very clearly like 15 years ago and then reiterated and I reiterated it and in any event look the common law model of course accepts that there are boundaries to power so the idea that there are some things which are introvarious and some things which are outrovarious is not something which the common law model ignores or fails to accept of course we accept that the key difference between the two schools of thought is not whether there are boundaries to power which is why I think the actual Anne's Minnich argument in favour of the outrovarian model is actually with respect to Robert Bissau and actually doesn't work analytically but just to stick to the point at hand look in Anne's Minnich or in any case like Anne's Minnich but think of course there are boundaries to what you can do and what you can't do the key difference between the two schools of thought is whether you think or whether someone thinks that the nature of those boundaries can be and must be delineated through some invocation of legislative intent or whether those boundaries ultimately should be set through the instrumentality of the principle quite my viewpoint was that I think legislative intent itself in this debate is quite misleading I agree I think it's actually probably if it means ending at all that it's a construct which incorporates common law principle it's not something that's outside and beyond it so maybe the whole debate is premised on a false understanding of legislative intent but let's see if there are questions from our audience of sure there are yes please How do you respond to comments from the Supreme Court saying that if Parliament will attempt to abolish judicial review entirely that they wouldn't listen to it particularly Lord Stain Jackson for example because it seems like only Professor Allen would be able to accommodate such a thing if it were to happen but I think those those statements are mistaken again it's not a question of what one would like the constitution to be it's what the constitution is and if Parliament can make or un-make any law at all remove judicial review I as a great supporter of judicial review would never be in favour of a law of that kind if Parliament were to make such a law it would be valid and effective I disagree I disagree with that I disagree with that I disagree with that I disagree with that I disagree with that just to show that there's actually there really isn't any tension between me saying that I'm in trouble with this and anything I said about the common law model just to explain just to explain in this respect the common law model is predicated on the assumption that there's nothing inherent in the common law model which involves a strong challenge to Parliament in the way that we've been talking about however I also think that there can be the example you've posited from Jackson and Stain is an example of a situation where there would be a strong challenge to Solventy there would be a strong challenge to Solventy at Stain so if you have Parliament clearly and unequivocally passing a piece of legislation which impolishes the entirety of judicial review there would be a strong challenge to Solventy if the courts refused to apply that legislation there would be a strong challenge to Solventy and I accept that now my view about that and the reason I disagree with Christopher in terms of constitutional orthodoxy is that if you have that situation then what you have if you want to think about it in those terms if you want to think about it in those terms you have a situation where your ultimate legal principle your rule of recognition is up for grabs think about it in this way we work on the assumption that Parliament can do anything in life by simple majority substantially or procedurally and procedurally and then someone comes along and drops a nuclear bomb on this through the example of trying to do away with judicial review and then the players in the game including courts but not only courts but including courts have to work out how they're going to react now in that scenario if the courts as I would hope they would refuse to apply that particular statute ok then the ball would be bounced back to Parliament and Parliament would see how it reacted let's assume for the sake of argument the Parliament backs off that the courts exercise a lot of muscle and the Parliament thinks it's not worth a candle and let's assume that that comes hardened into the underlying social practice which underlies your rule of recognition or ultimate legal principle then it seems to me that your ultimate legal principle would have been refashioned to say Parliament can do anything like by simple majority substantially or procedurally except that it can't do certain extreme things like abolishing the entirety of judicial review I find nothing odd about that at all what is odd is to imagine that our orthodoxy or apparent orthodoxy about the ultimate legal principle is somehow static it's not that simply implausible normatively and it's implausible viewed historically the content of that top principle has onto the day of time what you're positing is a scenario, an example where it might shift again but why not? The Court might lose that tussle in which case the status quo would remain as it was before I'm not sure that the question is directed at me but I can't resist I can't resist just a brief comment I mean I'm allergic to talk of the rule of recognition because I don't believe in it and I don't believe there's one top rule that Pam Hull might give way if there's a power fight all the time courts are giving an interpretation to statutes including ouster clauses that try to find a harmony between the statutory objective and what they think is a reasonable legal response to it and courts don't ever say well we're just not going to accept that, that goes too far I know they said they might inject but what they say is well this says there can be a judicial review but then Parliament never contemplated this particular situation that's arisen and they couldn't possibly have meant there wouldn't be judicial review in this case because that would deny as John Law says in the Carter case parliamentary sovereignty entails judicial power simply to decide what the statute meant and see that it's informed so I would say that the scope for change and development if we see it from case to case that there's this constant tension between parliamentary and judicial power I think already with us so I wouldn't regard an extreme ouster as being very different from a more modest ouster which the courts are really quite good at dealing with but that's just my gloss can we have another question who else would like to come in sorry yeah please this is just about the two species of legislative intent which Professor Craig distinguished with specific legislative intent it's very easy to say when Parliament theoretically formed the intention because it would have formed the intention on passing the statute of concern but with general legislative intent which I think was explained as intending legislation to perform the basic principles of fairness and justice operating in the constitutional democracy does it not follow that that intention must always have been held by Parliament or if not is there a particular point in time at which that intention was formulated my problem is perhaps with looking back at Parliament's earlier centuries and attributing to them all that stuff about constitutional democracy and so on thank you very much for the incisive question I mean they are not sure that it's more not sure, well anyway you directed it to me so I'll have it not necessarily I did use you just to be clear the distinction is drawn by the ultra-virus theorists themselves and it was Mark Elliott who made the transition in particular in his notable work between the specific model of legislative intent and the more general model of intent and it then has passed into the kind of lexicon within this area and it's part of the debate and that's absolutely fine in relation to the specific direction of your question I think you are right clearly in the sense that if the content of a general model of legislative intent must itself be historically dynamic and not static because it does not withstand scrutiny otherwise in other words what a Parliament in the 17th century would have regarded as constitutionally axiomatic is not the same thing as what a Parliament in the 19th or the 21st century would have regarded as constitutionally axiomatic and I think that's absolutely right and that would have to be regarded as built into the model of general legislative intent though that would not undermine it I don't regard that as particularly problematic in itself I mean it's something that one would have to take into account and rightly so but one could still then say in the 21st century in the here and now we can work on the assumption that Parliament generally intends question more comparatively moment but we can work on the assumption that Parliament generally intends certain precepts of rights and good ministry behaviour etc but yes it's definitely historically dynamic has to be now any other questions we'd like to ask if not I agree with you sorry to the back so this is too early on surely to some extent it's a it's a bit of a stereotype of it because when we talk about the rules of prohibition of view no one can deny that in the Parliament we say that they also apply to non-statutory powers so prohibitive powers surely in the context of statutory powers it just makes so much more sense to think about the intention of Parliament so I would say general intent and to use an ultra-virus model in the same way as when we look at contracts and we try to ascertain what obligations have arisen under the contract we think about the intentions of the parties drawing reference to the body of background contractual rules it makes more sense when trying to ascertain what power has been conferred on the body mentioned in the statute to frame it in terms of the what was intended what power was intended by Parliament and then with reference to the rules of judicial review which have developed in the common law does it just not make more analytical sense to use this model I think there's not really much between it's just a case of what is what is or do you want to the key so with respect I'm not sure in what sense it is more helpful I mean no one is doubting the key issue here and I don't think we should take our eye off the ball the key issue here is as you yourself accepted it's pretty much everyone accepts that it's undeniable that the courts are actually the creators of these principles and they've been doing it hand over fist for 400 years or more so the argument then is I mean because I am actually and the older I get the simpler I get and the more straightforward I get the argument is assuming that that is so why should we not accept what is so as being so all right given another in other words of the courts have of their own volition created these principles what must there be there's got to be some reason to say oh well they created them but we've got to clothe them with some intent nonetheless now we had a reason given to us by the Alphavira school which was that you had to do that to stop there being a strong challenge to sovereignty I didn't believe that analytical argument works so either you think I'm wrong in which case that's fine in which case you rebut my rebuttal of the analytical argument or you come up with some other reason why it's regarded as better to or preferable in some way to invest what is going on or to quote it with legislative intent now I listen carefully to the way you put the question but at the moment I'm still searching for what that rationale is and remember that rationale has to be a rationale which says we've got to do it in public law but we don't do it in law and we don't do it in contract when contractual and torsion principles are read into statutes as they are every single day of the week with the statutory in duty the power conferred is determined by the legislator there is a statutory power whereas in torts the obligations that arise arise out of the common the obligations that arise arise out of the agreement made in different parties that's a nice point but it's not it's not what's going on that's just as it were doing an end run around the question the question is you've got a statute which is an act it's a sale of goods act it's a higher purchase act it's anything you like it's a statute which is about landlord and tenant and the torsious rules or the relevant contractual rules will be read into that statute to determine the respective liabilities of landlord to tenant or the respective ways in which a contract will be made by the parties subject to anything being specified in the statute to the contrary rather logic if you buy into the logic of the Artforvara's model and particularly if you buy into the analytical argument you cannot do that you cannot read those principles in because unless parliament either intended the rule on contract formation to exist and be read into the statute or it didn't the legislative intent to suggest that those rules on contract formation should be read into the statute then it's illegitimate to read them in in which case you've got to invest the reading in of those common law principles to write in private law with the same legislative intent as they're doing for public law now as I said nobody thinks that you talk to private lawyers and I talk to private lawyers in some detail about this and private lawyers just reason in the same way because they're not about this as I specified in relation to the third part of the analysis we're looking at sovereignty and the meaning of sovereignty they just say look there's the common law those principles are ready and if parliament doesn't like them for some reason it says so and it specifies that the rule should not be applicable in this context otherwise the default position is that the principles are applicable no need to find legislative intent in the circumstances can I just I'd like to say something on this the subject first of all I agree with the comment I think it makes a good point secondly several times this evening Professor Craig has raised the argument that the modified ultra-virage doctrine if adopted means that the law of contract becomes a question of implied legislative attention I think this is quite wrong and what it overlooks is the nature of public law constitutions are about the allocation of power are the judges to decide this issue or is it to be decided by politicians is this to be decided by the county council or is it to be decided by the district council constitutional law is essentially about the allocation allocation of power and so when one's talking about the modified ultra-virage doctrine when he's talking about it in the context of an allocation of power and that is where one determines implied limits on the power allocated and that's the difference between public law and the law of contract and the law of tort and so forth and it was good to hear you making it hearing that argument emerging from the body of the hall thank you very much could I just give one very quick to that just to make it clear I am not saying in any shape, manner or form there's no differences between public law and private law I'm not saying that at all that would be ridiculous what I'm saying and I'm not denying that constitutional law is about the allocation of power I'm not saying that at all of course that is true what I'm saying is parliament is equally sovereign when it enacts a sale of good piece of legislation as when an occupiers liability statute as when it enacts a regulatory piece of legislation dealing with equality or one of the other regulatory issues which form part of public law the parliament is not a different body it is the same sovereign body so if you believe my argument is a very simple one and it's not with respect I think met by your rejoinder if you believe that parliament must give must have give its advance consent to the statutory monopoly model as I mentioned it if you believe that it parliament must give its consent in advance to any precept before it's legitimate to read that precept into legislation and that is the argument then that same point must be applicable to all legislation there is in that sense no difference it's the same sovereign body in all contexts I mean do you think all the ultramarys could be used as a short half way of saying what you just said I mean it could be understood as a response to the argument well the courts imposing these controls in this particular case is somehow contrary to parliament's will because it fetters the discretion the freedom to decide of the public body and the response is no it doesn't because this is the right way to interpret the act the common law controls are not inconsistent with the duty imposed on the public body when the public body acts in this way it's acting therefore inconsistently with its power in that sense in parliament's instruction so it's a complex way of saying that there is in fact no threat to parliament so that way ultramarys will be used as a summary of what you just said about why common law control is not in fact a challenge to parliament's sovereignty that's the whole point of the modified ultramarys doctrine to enable common law principles to comply without challenging the supremacy but of course it doesn't deny that the common law principles are doing all the fundamental work it doesn't deny that at all it never has I mean the principles of the I thought we both together the principles of the interpretation of statutes of common law principles well maybe we bring to a little bit of agreement at the end I hope so I think it's time for we have gone well beyond our original time so I'd like to just end by saying a great thank you to our two main speakers tonight particularly to Professor Craig who's come all the way from Oxford tonight to hit this call so thank you very much to him and to all of you