Vol. 12 (August 2001) pp. 406-408.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW by Mark Elliott. Oxford: Hart Publishing, 2001. 260 pp. Cloth $45.00. ISBN: 1-901362-180-6.

Reviewed by Jerry Waltman, Department of Political Science, University of Southern Mississippi.

When I started teaching British politics a little over twenty years ago, not a single textbook bothered to mention the courts. Furthermore, a search for current books and articles on the British constitution would have produced very little. Now, however, the courts merit at least some coverage in most texts on the British political system, and a modest sized bookstore could be stocked with works addressing constitutional matters. Naturally, these two subjects are closely tied together, for the growing number of public law cases in the courts raises important constitutional issues, and most constitutional change involves the courts directly or indirectly.

Four areas are of special concern in this regard. There is, first, the continuing development of administrative law in England. Beginning in the mid 1960s and increasing at an ever-growing rate since, the courts have wedged themselves between administrative agencies and the citizenry. Second, Britain's accession to the European Community and her continuing membership in the European Union (EU) has posed a unique set of legal problems. By what standard should English courts interpret an Act of Parliament that conflicts with EU regulations? Third, the Human Rights Act 1998 has made the European Convention on Human Rights (ECHR) applicable domestically (as of October 2000). (Britain has long been a signatory to the treaty, but the document did not have internal force since Parliament had not so warranted.) According to the Human Rights Act, a court may issue a Certificate of Incompatibility between the ECHR and an Act of Parliament; it will then be up to the political branches to take the appropriate action. Finally, the current spate of constitutional reforms engineered by the current Labour government-especially devolution-will drop new issues into the laps of the judiciary.

Mark Elliott has made an important contribution to the ongoing discussion regarding the courts and the constitution that these events have generated. His goal "is to develop a justification for judicial review that both provides a convincing account of its operation in practice and reconciles it with the constitutional framework" (p. 106). He does not, therefore, discuss the case law, except insofar as the judges' speeches (opinions) reflect on constitutional issues; nor does he discuss much in the way of political theory. Though his subject opens up expansive vistas of political theory, he confines himself largely to the legal nuances of the constitutional structure. This narrow legality will naturally bother some political scientists, but it keeps the subject manageable.

The heart of the problem is administrative law. In the late nineteenth century, A .V. Dicey famously said that the constitution rests on two pillars, parliamentary sovereignty and the rule of law. As political democracy became ever more firmly embedded into the political system, parliamentary sovereignty eclipsed the rule of law as the central constitutional norm. The courts withdrew to the realm of private law, studiously avoiding administrative and political issues of all types. A citizen's redress was through his elected M. P. By the 1960s, however, it was plain that the legislature's ability to control the executive had been lost. The sheer scope of the modern state had eroded and cabinet government bound by disciplined political parties had cancelled Parliament's role in holding the executive to account. When a citizen was subjected to arbitrary or capricious administrative action, where was he or she to turn? Courts began, hesitatingly at first and then more self-confidently, to apply common law principles of "good administration" to the activities of administrators. Most of these were procedural requirements, but substantive matters were not entirely absent. By the mid 1990s, courts were heavily involved in administrative matters on a regular basis.

How, though, was this intrusion to be justified? The traditional explanation was based on the doctrine of "ultra vires." Parliament grants certain powers to administrators; if, therefore, an administrator acts outside the powers granted to him by Parliament, his action is illegal, ultra vires. It falls to the courts to determine when an administrator moves outside the bounds of her legal ambit. Elliott ably demonstrates the shortcomings of this approach. Although carefully elaborated in the book, the essence of the argument is that it makes the courts have to read too much into legislative intentions. Modern statutes are often vague and grant substantial discretion to administrative authorities, creating enormous gaps. When courts forcibly insert the principles of good administration into the operation of a statute, they can only do so by assuming that Parliament means those principles should apply unless it specifies otherwise.

Reacting against this position, some constitutional thinkers have raised the idea that Parliament's sovereignty may be limited. One school, for example, has proposed that the rationale for parliamentary sovereignty rests on its democratic legitimacy. Therefore, any act eroding democratic political practice-infringing on freedom of expression or taking the franchise from certain groups of people, for instance-lies outside Parliament's writ. If so, the courts could move to nullify such actions. Other writers have taken an even broader view, declaring that Dicey's two pillars should be acknowledged as equal. The crown-in-parliament and the crown-in-the-courts are thus equally sovereign. Elliott shows, first, that the courts have confined their review exclusively to executive as opposed to legislative action. Thus, Parliament's legislative capacity is not at issue. Second, he believes that it is not necessary to abandon ultra vires entirely to justify judicial review.

Elliott proposes a model he calls "modified ultra vires." Maintaining that all judicial interpretation takes context into account, he argues that the rule of law is a fundamental precept of the British Constitution. Therefore, Parliament must be assumed to craft its legislation with the rule of law in mind. Consequently, the courts can bring the principles of good administration to bear on administrative acts because that is how Parliament writes statutes. This at once circumvents the theoretical pitfalls of the traditional ultra vires model and avoids challenging parliamentary sovereignty. Taken on these terms, I found the case to be convincing. He also shows how this approach can be made to fit into judicial review of the prerogative powers (areas of crown discretion which parliament has not acted to circumscribe), EU law, and the emerging law of human rights.

The book, in sum, is a well-written, though somewhat repetitive, lawyer's brief. I finished it feeling that he had won his case, but still somewhat unsatisfied. I sensed I had just witnessed the last plug in an ideological dike. On the practical front, when the judicial willingness to protect citizens from the abuse of administrative power is combined with the courts' acknowledged ability to declare parliamentary acts void when they conflict with EU law, a sure to be flooded docket of cases involving the ECHR, and potential cases involving conflicts between the Scottish parliament's laws and those passed at Westminster, parliamentary sovereignty simply does not exist. Legal fictions have their purposes, of course; but at some point going through protracted mental gymnastics to preserve them is a strained use of time. Modified ultra vires as developed by Elliott is preferable to the traditional variety, to be sure, but does it make any realistic difference?

Conceptually, in any event, modified ultra vires skates right up to the edge of holding that Parliament is not sovereign. It is all well and good to presuppose that Parliament always acts with one eye on the rule of law. However, political passions being what they are, who would want to say that a legislative majority might not some day disregard the rule of law? What then? If the rule of law is fundamental, a court will have to assert jurisdiction to negate such an act, in which case they will have stepped beyond modified ultra vires.

In short, Elliott's thesis may some day be seen as the last logical redoubt for parliamentary sovereignty.

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