The Theoretical Controversy Concerning Judicial Review

Published date01 May 2001
Date01 May 2001
DOIhttp://doi.org/10.1111/1468-2230.00335
REVIEW ARTICLE
The Theoretical Controversy Concerning Judicial
Review
Andrew Halpin*
Christopher Forsyth (ed),Judicial Review and the Constitution, Oxford: Hart
Publishing, 2000, xxxvii + 442 pp, hb £35.00.
The controversy concerning the theoretical basis for judicial review is a matter of
importance that extends beyond the particular concerns of public lawyers.
Embracing the fundamental relationship between the legislature and the judiciary
and their respective constitutional roles, it brings into sharp focus issues which
have a bearing on our wider understanding of the nature of law and its practice.
The way the controversy has developed provides a particularly striking opportunity
to consider the benefits of relating academic and practitioner perspectives, and to
consider the value of theoretical insights for our understanding of the practice of
law. The course this particular controversy has taken also raises general questions
about the nature of academic debate, and the the way that academic and
practitioner alike are inclined to represent the law. Accordingly, a wide variety of
readers should welcome this collection of essays on the foundations of judicial
review.1
The two models of judicial review
Two models have been proposed for the basis of judicial review. A certain amount
of refinement has occurred to each, but it is helpful to start with the extreme
versions so as to clarify matters before undertaking the more difficult task of
exposing the real nature of the dispute that now remains.2
The ultra vires model treats the basis for judicial review as the courts ensuring
that a power granted by the sovereign Parliament is not exercised beyond the limits
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
500
* Faculty of Law, University of Southampton. I am grateful to the AHRB for an award to support a
research project of which this essay forms a part, and to Liz Fisher for helpful discussions of judicial
review.
1 Unattributed references below are to this collection.
2 It is not altogether clear that either model in its extreme form has gained unalloyed support. The
extreme form of the ultra vires model is associated with Sir William Wade (Mark Elliott, 84). The
extreme form of the common law model is thought to have surfaced in what Lord Irvine has described
as some ‘extra-judicial romanticism’ of Lord Woolf and Sir John Laws (referred to at 45, 126–127,
394). Reasons why it is difficult to find a pure expression of either model in its extreme form include
the varied range of contexts in which judicial review is sought, the confusing range of uses to which
the term ultra vires has been put (on which see David Feldman, ch 11), and the speculative nature of
some of the discussion. Nevertheless, even if the two models in their extreme forms represent
hypothetical theoretical positions, they have their value in marking out the nature of the gap which
has been narrowed in subsequent theoretical positions actually adopted.

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