Ultra Vires and the Foundations of Judicial Review

Abstract

There is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.