Introduction
Judicial review stands as a cornerstone of administrative law in the United Kingdom, serving as a mechanism to ensure that public authorities act within the bounds of their legal powers and adhere to principles of fairness and reasonableness. However, the theoretical justification for judicial review remains a contested issue within legal scholarship. Elliott and Thomas, in their seminal work *Public Law* (2024), describe the ultra vires doctrine as a “simple and—superficially—attractive justification” for judicial review, implying limitations in its explanatory power (Elliott and Thomas, 2024, p526). This essay seeks to explain and critically evaluate the competing theories justifying judicial review, including the ultra vires doctrine, the common law theory, and the rights-based approach. It will assess whether Elliott and Thomas are correct in their assertion that ultra vires is only superficially attractive, arguing that while ultra vires provides a straightforward framework, its conceptual and practical shortcomings render it less robust compared to alternative theories. The discussion will unfold through an analysis of each theory, supported by academic literature and case law, before concluding with a reflection on the implications of this debate for the legitimacy of judicial review.
The Ultra Vires Doctrine: A Traditional Justification
The ultra vires doctrine has historically been the dominant justification for judicial review in the UK. It posits that courts intervene to ensure that public bodies do not exceed the powers conferred upon them by Parliament, thereby upholding parliamentary sovereignty. As explained by Elliott and Thomas (2024), ultra vires is rooted in the idea that any action beyond a public body’s legal authority is invalid and subject to judicial scrutiny (Elliott and Thomas, 2024). This framework is evident in early cases such as *Associated Provincial Picture Houses Ltd v Wednesbury Corporation* [1948] 1 KB 223, where the court reviewed a local authority’s decision for reasonableness, implicitly grounding its jurisdiction in the need to prevent ultra vires actions.
The appeal of ultra vires lies in its simplicity and apparent alignment with parliamentary intent. It offers a clear legal basis for judicial intervention: if a public body acts outside its statutory remit, the court can declare the action void. However, as Elliott and Thomas suggest, this attractiveness is superficial (Elliott and Thomas, 2024, p526). Critically, ultra vires struggles to account for the expansion of judicial review into areas such as procedural fairness and human rights, which often lack a direct link to statutory powers. For instance, in Ridge v Baldwin [1964] AC 40, the court held that a failure to observe natural justice rendered a decision void, even where no explicit statutory breach occurred. This suggests that ultra vires cannot fully justify the breadth of modern judicial review, raising questions about its adequacy as a foundational theory.
The Common Law Theory: A Broader Perspective
In response to the limitations of ultra vires, the common law theory has gained prominence as an alternative justification for judicial review. This approach argues that the principles governing judicial review—such as fairness, rationality, and the rule of law—are derived from the common law itself, rather than solely from parliamentary intent. Lord Cooke in *R v Secretary of State for the Home Department, ex parte Daly* [2001] UKHL 26 famously asserted that some rights are so fundamental that even Parliament cannot abrogate them without clear intent, highlighting the judiciary’s role in developing legal principles independently of ultra vires constraints.
Scholars such as Paul Craig advocate for the common law theory, suggesting that it better accommodates the evolving scope of judicial review (Craig, 1999). For example, the development of proportionality as a ground for review in cases like R (Daly) demonstrates the judiciary’s willingness to draw on common law principles rather than rely on statutory interpretation alone. However, this theory is not without criticism. Opponents argue that it risks undermining parliamentary sovereignty by elevating judicially developed principles above statutory law, potentially leading to accusations of judicial overreach (Allan, 2001). Nevertheless, the common law theory arguably provides a more flexible and dynamic justification for judicial review than ultra vires, addressing areas where statutory authority is silent or ambiguous.
The Rights-Based Approach: A Modern Justification
A further competing theory is the rights-based approach, which posits that judicial review is justified by the need to protect individual rights, particularly following the incorporation of the European Convention on Human Rights into UK law via the Human Rights Act 1998. This perspective shifts the focus from parliamentary intent or common law principles to the judiciary’s role as a guardian of fundamental rights. Cases such as *R (Begum) v Headteacher and Governors of Denbigh High School* [2006] UKHL 15 illustrate how judicial review often involves balancing individual rights against public interests, a process that ultra vires cannot adequately explain.
The rights-based approach is compelling in its emphasis on justice and individual protection, aligning with broader societal values. However, it faces challenges in terms of legitimacy, as critics argue that it allows unelected judges to make value-laden decisions that should be reserved for Parliament (Bellamy, 2007). Moreover, the approach risks inconsistency, as rights are often subject to interpretation and may conflict with one another. Despite these limitations, the rights-based approach reflects the modern reality of judicial review, particularly in a post-Human Rights Act context, and offers a more substantive justification than the procedural focus of ultra vires.
Evaluating Elliott and Thomas’ Assertion
Returning to Elliott and Thomas’ statement, it is evident that their description of ultra vires as “superficially attractive” holds merit (Elliott and Thomas, 2024, p526). On one hand, ultra vires provides a straightforward and historically grounded rationale for judicial review, ensuring consistency with parliamentary sovereignty. On the other hand, its inability to encompass the full spectrum of judicial review—particularly in relation to fairness, proportionality, and rights—reveals significant shortcomings. As discussed, alternative theories such as the common law and rights-based approaches offer more comprehensive justifications, better reflecting the judiciary’s contemporary role. Indeed, the ultra vires doctrine, while simple, often appears outdated in light of legal developments like the Human Rights Act 1998, which necessitate a broader conceptual framework.
However, it is worth noting that ultra vires retains relevance in specific contexts, particularly where statutory interpretation is central to a case. Furthermore, its alignment with parliamentary sovereignty provides a safeguard against excessive judicial activism, a concern raised by critics of the common law and rights-based theories. Therefore, while Elliott and Thomas are largely correct in identifying the superficial nature of ultra vires’ appeal, it arguably still serves a limited but important function within the wider framework of judicial review justifications.
Conclusion
In conclusion, the justification for judicial review in the UK remains a complex and evolving debate, with competing theories offering distinct perspectives on the judiciary’s role. The ultra vires doctrine, while simple and historically significant, is limited in its capacity to explain the expanding scope of judicial review, supporting Elliott and Thomas’ assertion that its attractiveness is superficial (Elliott and Thomas, 2024, p526). In contrast, the common law and rights-based approaches provide more nuanced and adaptable frameworks, better suited to contemporary legal challenges. However, each theory carries its own limitations, from risks of judicial overreach to issues of legitimacy. The ongoing tension between these justifications underscores the need for a balanced approach that respects parliamentary sovereignty while safeguarding individual rights and the rule of law. Ultimately, this debate highlights the dynamic nature of judicial review and its critical role in maintaining the constitutional balance within the UK legal system.
References
- Allan, T.R.S. (2001) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford University Press.
- Bellamy, R. (2007) Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge University Press.
- Craig, P. (1999) ‘Competing Models of Judicial Review’, Public Law, pp. 428-447.
- Elliott, M. and Thomas, R. (2024) Public Law, 5th edn. Oxford University Press.
