Legitimacy, rights and judicial review

Abstract

This article takes a critical look at classic rights-based theories of the constitution, as exemplified in the UK by common law constitutionalism. Drawing on an analysis of a group of cases decided both before and after the introduction of the Human Rights Act 1998, it is argued that even in cases that involve rights it appears often to be the case that argument focuses on 'intermediate' issues relating to constitutional structure and administrative decency rather than basic or primary issues of justice and morality. Rejecting an interpretation of the judicial review process centred on the need to protect rights, this article advances instead a model of that process grounded on the idea of legitimacy. © The Author 2005. Published by Oxford University Press. All rights reserved.