The Delegation Theory of Judicial Review
| Published date | 01 July 2021 |
| Author | Farrah Ahmed |
| Date | 01 July 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12632 |
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Modern Law Review
DOI:10.1111/1468-2230.12632
The Delegation Theory of Judicial Review
Farrah Ahmed∗
This paper oers an interpretive theory which aims to make sense of judicial review doctrine
in light of its underlying rationale. The idea that administrators are delegates of Parliament or
the Crown lies at the heart of this theory. The paper argues that the best internal rationale
for judicial review doctrine is that it holds administrators to their moral duties qua delegates
of Parliament or the Crown.This rationale closely ts legal doctr ine, including the grounds of
review and the scope of review;it reveals the underlying coherence of the law;it shows how the
law is supported by some moral reasons; and it closely reects judicial reasoning.The delegation
theory is valuable for normative, predictive,reformatory and pedagogical reasons. It can provide
guidance to judges, help to predict how they will decide,help to assess the law, help to evaluate
reform proposals and enhance understanding of judicial review amongst administrators, legal
practitioners and students.
INTRODUCTION
Judicial review,as a signicant legal means of holding administrators to account,
ought to be well understood.Each of the g rounds of judicial review – including
improper pur poses, unreasonableness,procedural unfair ness and legitimate ex-
pectations – is carefully studied, debated and explained by judges and scholars.
The question of the legal basis for judicial review – legislative intent or the com-
mon law – has received enormous attention.1But a crucial set of foundational
questions has received relatively little attention.
How can we best make sense of the legal doctrine relating to judicial review
as an area of law?2Why is judicial review available on particular grounds,and on
the exercise of particular powers? How (if at all) is the legal doctrine coherent?
How (for instance) do the dierent grounds of review t together? Why is there
a widespread assumption that judicial review reects moral values?3This paper
∗Professor,Melbourne Law School, University of Melbourne. For very helpful comments on drafts of
this paper, I am indebted to Tom Adams, Hasan Dindjer, David Dyzenhaus, Patrick Emerton, Jerey
Goldsworthy, Kirsty Gover, Matthew Harding, Jarrod Hepbur n, Swati Jhaveri, Tarun Khaitan, Rose-
mary Langford,Rachel Leow,Douglas McDonald-Norman, Janet McLean,Jane Norton, Adam Perry,
Joe Tomlinson,Jason Varuhas, Lael Weis,Hanna Wilberg, reviewers for the Modern Law Review and
participants at workshops at the Universities of Melbourne,Oxford and Toronto.
1 For example C. Forsyth (ed), Judicial Review and the Constitution (Oxford: Hart, 2000); M. Elliott,
The Constitutional Foundations of Judicial Review (Oxford: Hart, 2001).
2 On the identication of areas of law: S. Smith,Contract Theory (Oxford: OUP,2004) 8-11.
3 For an account of these values, see P.Cane, ‘Theories and Values in Public Law’ in P.Craig and
R. Rawlings (eds), Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford:
OUP,2003) 14-17; C.Harlow and R. Rawlings, Law and Administration (Cambridge: Cambridge
University Press, 3rd ed, 2009) 46-47; P. Daly, ‘Administrative Law: A Values-Based Approach’
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.(2021) 84(4) MLR 772–810
Farrah Ahmed
oers answers to these foundational questions through an interpretive theory
of judicial review.Such a theor y aims to make sense of the law by revealing the
intelligibility, coherence and signicance of its features in light of its internal
rationale,4that is, its rationale from the perspective of legal ocials who make
and apply law, including judges and lawyers.5
The ‘delegation theory of judicial review’ defended in this paper draws on
the idea that those subject to judicial review (‘administrators’) are delegates of
Parliament or the Crown.6That is, some administrators (generally exercising
statutory powers) are delegates of Parliament, some administrators (generally
exercising prerogative powers) are delegates of the Crown, and some admin-
istrators (generally exercising both statutory and prerogative powers) are dele-
gates of both Parliament and the Crown.The best internal rationale for judicial
review doctrine,according to the delegation theory, is that judicial review doc-
trine holds administrators to their moral duties7qua delegates of Parliament or
the Crown.
The idea that administrators are delegates is pervasive in public law.It is di-
rectly expressed in some grounds of judicial review, for example delegatus non
potest delegare (a delegate cannot delegate a power further).Judges and commen-
tators explain other grounds of review by reference to the idea that adminis-
trators are delegates.8This idea underlies the appeal of ultra vires theories in
debates about the legal basis of judicial review.9It underpins the most developed
account that we have of the distinction between constitutional and administra-
tive law.10 It also strongly suggests – perhaps underlies – the now-prominent
constitutional principle of parliamentary accountability.11
Despite its foundational place in the theory and doctrine of judicial review,
this idea of administrators as delegates has never germinated into a full-blown
theory of judicial review.This may be because, until relatively recently, public
law theory has been so focussed on the ultra vires versus common law debate
that other important theoretical problems have received less attention than they
deserve. It may be because judges, given their role, have oered little by way of
theory in judicial review cases.12 Or it may be that the idea of administrators
in J. Bell, M. Elliott, P.Mur ray and J. Varuhas (eds), Public Law Adjudication in the Common Law
World:Process and Substance (Oxford: Hart, 2016) 23-44.
4 Smith, n 2, above, 5. The delegation theory may also be descr ibed as ‘immanent’ (see Cane, ibid,
5-6) or as a ‘backg round theor y’ (C. Harlow,‘Review: Changing the Mindset: The Place of
Theory in English Administrative Law’(1994) 14 Oxford Journal of Legal Studies 419, 422).
5 This perspective is discussed further in the next section below.
6 The paper does not equate Parliament and the Crown to the ‘state’ given the complications
around identifying the Br itish state: see generally J. McLean, Searching for the State in British Legal
Thought (Cambridge: Cambridge University Press, 2012).
7 See the fourth section below,headed ‘Aspects and Duties of Delegation’.
8 See discussion of case law in the sections below headed ‘Grounds of Review’,‘Review of the
Crown’s powers’ and ‘Review of de facto powers’.
9 D.Dyzenhaus, ‘Form and Substance in the Rule of Law: A Democratic Justication for Judicial
Review?’in Forsyth (ed), n 1 above, 153-154.
10 J. Gardner, ‘Can There Be a Wr itten Constitution?’ Oxford Legal Studies Research Paper no
17/2009 at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401244 (last accessed 31 Au-
gust 2019).
12 This is understandable given the constraints under which they work: Elliott, n 1 above, 6-7.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2021) 84(4) MLR 772–810 773
The Delegation Theory of Judicial Review
as delegates is so familiar, so much a part of the furniture of everyday public
law thinking,13 that we have taken it for granted instead of investigating its
implications.
The next section introduces the nature,aims and success cr iteria of the kind
of interpretive theory oered in this paper.The third and fourth sections oer
a sketch of delegation and of three ideal-types of delegation relationships. The
fth section demonstrates how understanding the duties of administrators qua
delegates of Parliament or the Crown makes sense of the grounds of judicial
review.
The sixth and seventh sections show how the delegation theory makes sense
of the scope of judicial review.The sixth section shows that the rationale iden-
tied by the delegation theory ts with judicial review of the Crown’s powers
and the seventh section shows that it ts with judicial review of de facto pow-
ers. The eighth section explains how the delegation theory ts with the role
of judges and the public in judicial review.The ninth section demonstrates the
virtues of the delegation theory relative to other interpretative theories of ju-
dicial review.
AN INTERPRETIVE THEORY OF JUDICIAL REVIEW
The delegation theory is an interpretive theory; it aims to make sense of – in-
terpret – common law judicial review doctrine. One way to make sense of a
human practice is to work out its rationale from the perspective of those inti-
mately engaged in the practice. The delegation theory is a type of interpretive
theory which aims to make sense of judicial review doctrine by identifying its
rationale(s) or underpinning principle(s).14 (While an interpretive theory may
identify a set of coherent rationales or principles,15 for simplicity’s sake, what
follows refers to ‘rationale’ and ‘principle’ in the singular).
The delegation theory aims to construct the best internal rationale for judi-
cial review doctrine. The rationale it oers is ‘internal’ in the sense that it is
a rationale from the internal perspective or point of view: the perspective of
legal ocials who make and apply law, including judges and lawyers.16 In par-
ticular, the delegation theory aims to reect the perspective of legal ocials,
acting in their ocial capacity, expressed through public legal documents such as
case reports and lawyers’ arguments in court.17 This internal perspective typi-
cally includes attitudes such as acceptance of legal norms, and beliefs that the
13 McLean nds the idea as early as 1847 in an overlooked essay by John Austin (J. Austin, ‘Cen-
tralization’ (1847) 85 Edinburgh Review 221): McLean, n 6 above.
14 See Smith, n 2, above.
15 ibid, 12-13.
16 ibid, 13-15; E. Weinrib,The Idea of Pr ivate Law (Oxford: OUP, 1995) 11: ‘... not only does an
internal account orient itself to the features salient in legal experience, but it also understands
those (and other) features as they are understood from within the law’;R.Dworkin, Law’sEmpire
(Cambridge, MA: Harvard University Press, 1986) 14.
17 Smith, ibid, 14. Attempts to reect this perspective should not therefore be confused with studies
of psychological factors and motivations inuencing judicial decisions; as discussed below,these
studies have dierent aims to the interpretive theory oered here.
774 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2021) 84(4) MLR 772–810
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