University of Toronto Law Journal, Vol. 53, pp. 201-216, 2003
14 Pages Posted: 4 Jul 2008
Date Written: July 3, 2008
A review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001). I argue against Elliott's view that, as a matter of logic, judges cannot impose duties on the exercise of statutory powers without acting inconsistently with the legislation, unless Parliament intended the imposition. I also argue against the 'ultra vires theory' (the theory that the constitutional justification for judicial review of the exercise of statutory powers is that the courts are giving effect to limitations that were imposed by Parliament when it granted the power). It is the common law of the constitution, and not Parliament, that gives the courts the responsibility of imposing the requirements of the rule of law on the exercise of statutory powers. The ultra vires theory, even in Elliott's sophisticated modification, shows the influence of a popular misconception of the role of Parliament in the United Kingdom constitution.
Keywords: jursiprudence, ultra vires, judicial review
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