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Abandoning Vires-Based Review

How should we see judicial review? And, how should the legal discourse on this subject be conceived? In The Constitutional Foundations of Judicial Review, Mark Elliott has produced an account of modern judicial review that is structural, deterministic, and based on foundational arguments of English Law. This well-written and wellresearched book represents the view of, what may be called, the “Cambridge School” of modern theorists, who justify judicial review in terms of Parliamentary Sovereignty and the Ultra Vires principle. They stand in a long line of illustrious contemporary thinkers such as, Sir William Wade, Dr Christopher Forsyth, Mr T R S Allan (if one takes his earlier work), and now Dr Mark Elliott. The book is important because it does not focus “on the desirability of a power of judicial review and its purpose”, which is a relatively simpler question, but on a more difficult and “logically prior question: That of the constitutional legitimacy of the power, the answer to which we must understand . . .”1. Up to now, this debate has centred around those who promote the common law model of judicial review, being based on normative considerations of justice and the rule of law, and those who promote a vires-based approach to judicial review, which argues that ultimately review can and should be seen as being based on the intent of Parliament. The common-law model is the “traditional” approach to judicial review because “in historical terms the courts did not conceive of review in terms of legislative intent, but reasoned in the manner argued for by advocates of the common law model”2. The “traditionalists” in the common-law camp were represented formerly by such stalwarts as Jennings, Heuston, and Marshall, and now by Craig, Jowell, Oliver, Bamforth, as well as practitioners such as Laws and Sedley LJJ. The vires-based model is the “modern” view of the administrative law because this arose when political forms of accountability began to decline and the courts began to see their role as keeping governmental institutions within their legal bounds, by reference to the will of Parliament. This book provides the most thorough and up-to-date account of both R E V I E W S 239