Is the ultra-vires doctrine the best justification for judicial review?

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Does the ultra vires Doctrine provide the best justification for judicial Review in the British Constitution?

This essay seeks to disprove the view that the ultra vires doctrine provides the best justification for judicial review. The premise of this essay is that the doctrine is the generally accepted justification for review but however may not be very stable as a ground for the courts’ jurisdiction on the matter of questioning legislation. This discussion will begin by (1) defining the meaning of judicial review and considering what the doctrine of ultra vires entails then (2) assessing the shortcomings of the doctrine of ultra vires and then proceeding to (3) analyse other more solid justifications the courts may have in intervening in legislative matters and why they may be more suited to the modern British constitution. I will finally end with a conclusion as to why the ultra vires doctrine does not provide the best justification and should be disapplied in the judicial review procedures.

        Judicial Review is designed to ensure that public bodies which exercise law making power or government adjudicatory powers are kept within the confines of the power conferred upon them by statute and by the common law. It was shown that “a claim for ‘judicial review’ means a claim to review the lawfulness of-(i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function.” 

        

Historically, the basis of the courts’ intervention was the ‘ultra vires’ doctrine. It has been described by Sir William Wade as “the central principle of administrative law”. However, it has, in recent times been called a “fairytale” or a “fig-leaf”. The direct Latin translation of the phrase is ‘beyond’ (ultra) ‘strength’ (vires). In legal terms, ultra vires is used to define a situation whereby a party transcends the authority in a manner that exceeds the powers granted by law. If a body exercising statutory powers went beyond the ‘four corners’ of the Act then the courts could intervene. It is a basic constitutional principle that all powers exercised by or originate in statutes.

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Ultra vires can fall into two of the three grounds of review mentioned by Lord Diplock. Under the ground of illegality, the authority in question may be said to have acted ultra vires if its proceedings were in excess of power, carried out unlawfully or beyond its jurisdiction. Under the grounds of procedural impropriety, Lord Diplock indicated that it included a breach of the rules of natural justice at common law and/or a failure to observe procedural rules specified by the statute conferring the jurisdiction. Lord Scarman and Lord Brightman have both referred to it as “procedural irregularity”. Judges for ...

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