The Demise of Ultra-Vires - A Reply to Christopher Forsyth and Linda Whittle
Dr Christopher Forsyth must be congratulated for his unshakeable resolve and indefatigable energy in holding the line on ultra vires. He has stoically resisted the onslaught of academic, judicial and extra-judicial writings on the common law foundations of judicial review. With fortitude, he has defended the conceptual linkage of ultra vires and shunned argument about judicial power being deeply embedded in the common law. Again, in the pages of this review, Dr Forsyth joins with Linda Whittle in defence of the ultra vires doctrine - as establishing the one true constitutional justification of judicial review.[1] He reaffirms what he and his followers dub the 'modified doctrine of ultra vires'.
This reply identifies the strained logic of the (so-called) modified doctrine and refutes the forced reconciliation it attempts. The title of this reply refers to the writer's article, 'The Demise of Ultra Vires - Judicial Review in the New Zealand Courts' (hereafter 'The Demise of Ultra Vires').[2] That article recorded the debate over ultra vires in the United Kingdom and observed the emergence of a methodology of judicial review (termed 'constitutional review')[3] that demonstrates the potency of the courts' inherent jurisdiction at common law. This reply summarises the modified doctrine of ultra vires and addresses the writers' specific arguments of refutation against (as they quaintly put it) 'a voice from New Zealand'. Their article is a revised version of a presentation Dr Forsyth gave to the Public Law class at the University of Canterbury in September 2001, in which he repeatedly directed aquestion at the judges: 'Who areyou [the judge] to interfere in the exercise of a discretion entrusted to a democratically accountable decision-maker by a democratically elected Parliament?'[4] I am happy to oblige Dr Forsyth, although I question whether these or any other words are capable of shaking his resolve.
To presage what follows: the ultra vires doctrine is ahistorical in its claim to clothe the courts with constitutional justification, is artificial in its linkage to presumed parliamentary intent, is misty-eyed in its deference to popular democracy, and is perverse in reserving to the courts a servile, mechanistic role. The opening pages of this reply rehearse some of the arguments already canvassed in the debate. The article to which Forsyth and Whittle refer ('The Demise of Ultra Vires') contains a fuller account of the contortions of ultra vires scholarship.[5] The ensuing pages of this article probe the relationship of the political and judicial branches and take the debate into new territory concerning statutes and common law method.
