Instructions:
Reading list:
- * Administrative Law, pp 4-20, 474-501, 510-519, 847-855
- * ‘Is the Ultra vires rule the basis of Judicial review’ [1987] PL 543
- *. ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55 CLJ 122
- * ‘Competing Models of Judicial Review’ [1999] PL 428
- ‘Of Vires and Vacuums: The Constitutional Context of Judicial Review’ [1999] PL 448
- ‘The Demise of Parliamentary Sovereignty? The Implications for Justifying Judicial Review’ (1999) 115 LQR 119
- ‘The Theoretical Controversy Concerning Judicial Review’ (2001) 64 MLR 500
- * ‘The Separation of Powers and Judicial Review for Error of Law’ in Forsyth & Hare (eds.) The Golden Metwand and the Crooked Cord
- Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
- *Leung TC William Roy v Secretary for Justice [2006] HKEC 578 (CA)
- *Hong Kong SAR v Ng Kung Siu [1999] 3 HKLRD 907 (CFA)
- *Hong Kong SAR v Ng Ka Ling [1999] 1 HKLRD 315 (CFA)
- *Cheung Lai Wah & Others v The Director of Immigration [1998] 1 HKLRD 772 (CA)
- *Basic Law Articles 35, 8
Writing guidelines from professor (not necessarily in order. As I am not familiar with this topic, these are all what I have jotted down):
- definition of ultra vires principle
- rationale of ultra vires principle – respect of parliamentary sovereignty concept – all the administrative power derived from the parliament – administrators and inferior tribunals should act within the four corners of the law
- modern practice of judicial review – the ultra vires doctrine fails to explain all the phenomena of judicial review because not all the powers are derived from statutes and thus does not cover all grounds of judicial review application
- examples of power of public body not derived from statutes: Jockey Club, Stock Exchange Ltd.
- the traditional ultra vires theory model is modified: to look into the nature of the power, whether the decision is public in nature – not a statutory body but their decision is reviewable
- re-modified ultra vires theory model: constitutional law vs domestic law (by Craig)
- common law model of illegality - the court in reviewing the decisions of public body, not just look at the legal limit imposed on the body and the power given to the body, but look at wider concepts of natural justice, legitimate expectation, proportionality…seems to treat judicial power above the parliamentary power
- modified common law model - tend to widen and explain the phenomenon of judicial review –
- courts still said to respect legislative intention
- tend to widen and explain the phenomenon of JR
- tension between the judiciary and the parliament
n ouster clause / finality clause
n the decision of the executive is final and conclusive
n if court respect the parliament – the decision is not amenable to JR
n in UK, the executive branch controls the parliament (because majority of seats dominated by supporters of the executive branch)
n courts try to interpret the clause in a way that the court can still intervene even the word is so clear – because the intention of the legislature would not allow decision of executive which is unreasonable / illegal…to be final and conclusive à so the clause is in fact has no effect at all – the decision is final only if it is legal / reasonable…if not, the court can interfere despite of the label
- is it ever possible for Parliament or legislature to oust the jurisdiction of the courts to review errors of law?
n In UK, theoretically it is possible due to the doctrine of parliamentary sovereignty; but in practice, it is hardly be possible (e.g. the way how court interprets the finality clause)
n In HK, may not be possible as we do not have parliamentary sovereignty, but constitutional sovereignty (the Basic Law)
n Is it possible for the legco to enact law which says that court is not capable to review decision of the executive?
u Article 35 of Basic Law – guarantees access to court – by ousting the power of the court to JR = infringing constitutional right – should interpret law in a way which is compatible with the Basic Law
u Legco cannot enact law which infringes constitutional rights guaranteed – the court can declare the law / decision made pursuant to that law as unconstitutional – e.g. Cheung lai wah case; Ng Ka Ling case; Ng Siu Tung case; William Leung’s case; prosecution of homosexual 19-year-old boys for unlawful sexual intercourse (buggary) is unlawful as the law conferring such a power is unconstitutional; long hair’s executive order – to see whether the concrete (the decision)/ abstract (the law) decision is compatible to BL
n Common law principles are preserved by the Basic Law expressly
n Only possible if Basic Law is amended – but it would not be possible
- there are 4 grounds of judicial review available in Hong Kong:
n illegality
n procedural impropriety
n irrationality
n proportionality (possible)
- procedural impropriety
n - failure in following the procedures set out in the legislation – fall within ultra vires
n not in statutes but against natural justice governed by common law – e.g. right to be heard
n ultra vires doctrine can still explain part of procedural impropriety – 4 corners
n partly can be explained by common law doctrine
- irrationality
n a common law creature
n can only be explained by common law doctrine
- there is no single model as suggested above by different academic scholars can explain all the judicial review phenomena in practice
HK and UK – different political backgrounds
In UK – acts of parliament are parallel and supreme; the status can be treated as equivalent to Basic Law
So should the definition of vires include Basic Law (which also recognizes Common Law principles) as well?
BL should be the constitutional basis for judicial review
If vires does not include BL, it is a very narrow concept (decision can be illegal even if intra vires) à then argue that ultra vires model alone is not satisfactory; should include also other common law models – to say that the first step is to decide whether it is constitutional then go on the consider other common law principles preserved by the BL
(basic law – constitutional violation) – can be a limb of illegality (ultra vires) – or be separated from the traditional models
PLS USE OXFORD STANDARD OF CITATION AS FOOTNOTING
You will find the format, style and footnote standard required in the zipped folder.
0 comments:
Post a Comment