This chapter presents a concept of office as the central, organising concept in public law. Public law is, effectively, the law of public offices. An office is a stable, institutionalised social role tantamount to an artificial legal person that is occupied by a person from time to time in virtue of which that person acts ‘outside themselves’ and for the political community as a whole. This is the key to understanding the law of judicial review, which is uniquely concerned with this official mode of action. The concept of office has languished at the margins of public law theory since the nineteenth century reform of the English civil service. Its reinstatement is essential to understand the judicial review of official action beyond statute, and would reinvigorate and enrich public law theory more broadly as well – up to and including the foundation of a powerful conception of the rule of law.

This chapter explores the different ways of approaching judicial review, and makes some initial criticisms of the historical ‘ultra vires debate’ of the 1990s and 2000s. It argues for a return to the concept of jurisdiction (and jurisdictional error) as a central category of the law, and for a focus on non-statutory executive powers as a primary case for and from which to build a theory of the supervisory jurisdiction. While legislative intention is important, wherever it is relevant, it is not relevant where the official powers in question obviously derive from rules of competence outside of legislation. Further, common law rules of conduct are always central to judicial review in the context of statutory grants of power. This insight is conducive to a simpler and more powerful conception of judicial review based around a common law doctrine of ultra vires.

This chapter provides an account of the Crown and its officials (and the relationship between them). This is the first of three chapters that provide fundamental building blocks for the judicial review of non-statutory executive powers. The Crown is an ambiguous term, which can specify the Queen, HM Government, and even the organised political community ('commonwealth') as a whole. Working through these ambiguities is essential in order to describe who is being reviewed (and why), and this entails working through some long-standing questions about the Crown's legal personality and relation to the person who is Monarch. Rejecting the idea that the Crown is a natural person (ostensibly because the Queen is a natural person) is the first step that leads, logically, to a theory of judicial review via a theory of office,official empowerment, and action in an official capacity.