The Academic Mythologians

Abstract

To paraphrase Heuston, the doctrine of ultra vires is almost entirely the work of Cambridge men. First articulated by William Wade, resuscitated by Christopher Forsyth, the theory has now found its most sophisticated and persuasive form in the work of Mark Elliott. In Judicial Review and the Constitution, Forsyth has gathered together the best of the previously published articles on this topic, and has commissioned new work from an impressive selection of leading public law scholars. The result is a collection that will prove of immense utility to anyone wanting an exhaustive survey of the arguments made in the debate. The book's appearance is timely. The passing of the Human Rights Act, the coming of devolution and the rapid expansion of judicial review have made the question of the legitimacy of judicial power more pressing than ever before. The attempt by Forsyth and Elliott to justify judicial review by reference to the will of Parliament tries to connect modem public law with classical theories of sov ereignty. Much of this review article will be spent charting the complex re lationship between sovereignty and judicial review. Two theories of the basis of judicial review are presented in the book: the modified ultra vires theory and the common law theory. The first grounds the legitimacy of judicial review in the intention of Parliament, the second in the decisions of the judges. In this article I shall focus almost exclusively on the arguments advanced in support of the modified ultra vires theory; the strength of the claims of the common law theorists will emerge through an examination of the weaknesses of their opponents' contentions. The common law theory is in essence a denial of the modified ultra vires theory: if the justification of judicial review cannot be extracted from the will of Parliament we must seek its legitimacy in the decisions of the judges. In the final chapter of the volume Forsyth provides a useful encapsulation of the two theories of review on offer in the book. First, the common law theory of judicial review: