Appraises the classic rights based theory of the constitution and whether it can be used to explain judicial review. Describes the characteristics of classic rights based theory, in particular its relationship to common law constitutionalism. Examines the approach taken to fundamental rights in cases heard both before and after the coming into force of the Human Rights Act 1998. Reflects on the nature of judicial review, arguing that it is based more on the concept of legitimacy than the protection of rights.