From Ambiguity to Legality: The Future of English Judicial Review
29 Pages Posted: 25 Apr 2008
The orthodox understanding of parliamentary sovereignty holds that English courts cannot review the constitutionality of parliamentary enactments. According to this view of English judicial authority, called the ultra vires doctrine, the courts may only review administrative actions to ensure that the agency acts in accordance with the authority delegated to it by Parliament. In doing so, the courts effectuate Parliament's implicit intention never to legislate contrary to the rule of law. On this account, the courts first find some ambiguity in the delegation of administrative authority that empowers them to act in Parliament's stead by ensuring that the agency remains constrained by law. An alternative view of English judicial authority, called the common law theory, maintains that the courts' authority to review government action so as to ensure that the government acts at all times within the rule of law is intrinsic to the common law itself. Using case law and constitutional theory, this article argues that a trend may be emerging in English constitutional and administrative law away from the ambiguity precondition and toward a view of judicial review that grounds the courts' authority on the common law rather than parliamentary intentions.
Keywords: common law, judicial review, ultra vires, Parliament, Simms, Anisminic
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