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Judicial Review and the Constitution - BLOOMSBURY ACADEMIC

Judicial Review and the Constitution

Hardcover

Published: 1st May 2000
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"This collection of essays presents opposing sides of the debate over the foundations of judicial review. In this work, however, the discussion of whether the 'ultra vires' doctrine is best characterised as a central principle of administrative law or as a harmless, justificatory fiction is located in the highly topical and political context of constitutional change. The thorough jurisprudential analysis of the relative merits of models of 'legislative intention' and 'judicial creativity' provides a sound base for consideration of the constitutional problems arising out of legislative devolution and the Human Rights Act 1998. As the historical orthodoxy is challenged by growing institutional independence, leading figures in the field offer competing perspectives on the future of judicial review. "Confucius was wrong to say that it is a curse to live in interesting times. We are witnessing the development of a constitutional philosophy which recognises fundamental values and gives them effect in the mediation of law to the people". (Sir John Laws) Contributors Nick Bamforth, Paul Craig, David Dyzenhaus, Mark Elliott, David Feldman, Christopher Forsyth, Brigid Hadfield, Jeffrey Jowell QC, Sir John Laws, Dawn Oliver, Sir Stephen Sedley, Mark Walters. With short responses by: TRS Allan, Stephen Bailey, Robert Carnworth, Martin Loughlin, Michael Taggart, Sir William Wade.

In Judicial Review and the Constitution, Forsyth has gathered together the best of the previously published articles on the topic, and has commissioned new work from an impressive selection of leading public law scholars. The result is a collection that will prove of immense utility to anyone wanting an exhaustive survey of the arguments made in the debate. N. W. Barber Oxford Journal of Legal Studies June 2002 Within the public law field, this book will (deservedly) prove among the foremost influences on the next generation of legal scholarship. Ian Loveland, City University Law Quarterly Review February 2003

Acknowledgementsp. xiii
List of Contributorsp. xv
List of Participantsp. xvii
Table of Casesp. xix
Table of Legislationp. xxx
The Debate Begins
Is the Ultra Vires Rule the Basis of Judicial Review?p. 3
Sources of Powerp. 5
Institutionsp. 8
Functionsp. 11
Conclusionsp. 25
Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Reviewp. 29
Introductionp. 29
Judicial Review and the Exercise of Non-legal Powers by Non-statutory Bodiesp. 31
"Weak" and "Strong" Criticisms of the Ultra Vires Doctrinep. 33
The Response to "Weak" Criticismp. 35
Reconciling the "Weak" Criticisms with Orthodoxyp. 40
The Utility of Fig-leaves and Fairy Talesp. 42
The Response to "Strong" Criticismp. 43
Conclusionsp. 45
Ultra Vires and the Foundations of Judicial Reviewp. 47
The Criticisms of the Ultra Vires Doctrinep. 48
The Defence of the Ultra Vires Principle: The Dangers of its Abandonmentp. 54
The Defence of the Ultra Vires Principle: Meeting the Objectionsp. 59
The Foundations of Judicial Reviewp. 61
Conclusionp. 70
Illegality: The Problem of Jurisdictionp. 73
R. v. Hull University ex p Pagep. 79
The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Lawp. 83
Introductionp. 83
The Importance of Justifying Judicial Reviewp. 85
The Relationship between Legislative Intention and Judicial Reviewp. 88
A Constitutional Setting for the Ultra Vires Doctrine: Overcoming the Shortcomings of the Traditional Modelp. 100
Conclusionp. 107
The Jurisprudential Debate
Ultra Vires and Institutional Interdependencep. 111
Criteria for Assessing the Merits of a Legal Theoryp. 114
Ultra Vires as the Constitutional Foundation of Judicial Reviewp. 116
Institutional Interdependence and Hart's Rule of Recognitionp. 130
An Analogy: Parliamentary Privilegep. 135
Conclusion: Making Explicit the Basis of Judicial Reviewp. 138
Form and Substance in the Rule of Law: A Democratic Justification for Judicial Reviewp. 141
Introductionp. 141
Procedure and Substance in Practical Theoryp. 142
Positivism, Judicial Review and the Rule of Lawp. 145
Substance and Judicial Supremacismp. 160
The Pleasing Persistence of Process Based Theoriesp. 167
Judicial Review and the Meaning of Lawp. 173
Introductoryp. 173
The Common Lawp. 173
Philosophyp. 176
Positivismp. 178
The Nature of Principlep. 180
The Rule of Lawp. 183
Parliament and the Judgesp. 185
Constitutional Reform and the Foundations of Judicial Review
The Foundations of Review, Devolved Power and Delegated Powerp. 191
General Introductionp. 193
The Realitiesp. 199
Devolution: The Mechanicsp. 200
Conclusionsp. 209
The Courts, Devolution and Judicial Reviewp. 213
Wales, Executive Devolution and the Assignment of Limited Competencep. 213
Judicial Challenge to the Competence of the Assemblyp. 216
Scotland, Legislative Devolution and the Demarcation of Legislative Competencep. 220
Political Challenge to the Competence of the Scottish Parliamentp. 224
Judicial Challenge to the Competence of the Scottish Parliamentp. 224
Judicial Determination of Legislative Competence: Three Central Issuesp. 228
The Interpretative Perspective: Statutory or Constitutional Interpretation?p. 229
The Division of Power: Manner and Degreep. 233
The Unavoidable Task: The Classification of Impugned Legislation by Subject Matterp. 237
Conclusionp. 243
Convention Rights and Substantive Ultra Viresp. 245
The Meanings of "Ultra Vires" and the Purpose of this Essayp. 245
The Effect of Ultra Vires Theories on the Protection of Convention Rightsp. 251
The Effect of Convention Rights on the Theory of Ultra Viresp. 261
Conclusionp. 266
Fundamental Rights as Interpretative Constructs: The Constitutional
Logic of the Human Rights Act 1998p. 269
Introductionp. 269
Human Rights as Substantive Rules of Good Administrationp. 271
Human Rights as Interpretative Constructsp. 277
Conclusionp. 287
Judicial Review of Statutory and Non-Statutory Discretion
Public Power and Private Powerp. 291
Review of (Non-Statutory) Discretionsp. 307
Fiduciary Relationshipsp. 308
Company Lawp. 312
The Common Lawp. 315
Public Policyp. 318
Towards General Principles of Decision-makingp. 321
The Limits of Duties of Considerate Decision-making in Public and Private Lawp. 322
Implications for the Public Private Dividep. 323
Of Vires and Vacuums: The Constitutional Context of Judicial Reviewp. 327
Testing the Justifications through the Grounds of Reviewp. 329
Vires in Contextp. 336
The Separation of Powers and Judicial Independencep. 338
Review of Non-statutory Bodiesp. 339
Conclusionp. 339
Legislative Intention Versus Judicial Creativity? Administrative Law as a Co-operative Endeavourp. 341
Introductionp. 341
The Modified Ultra Vires Principlep. 343
An Unwelcome Distinction in Administrative Lawp. 350
The Undesirable Consequences of the Unwelcome Distinctionp. 359
Conclusionp. 368
Conclusion
Competing Models of Judicial Reviewp. 373
The Story Thus Far: The Contending Modelsp. 373
Legislative Intent as the Central Principle of Administrative Law? The Substance of Judicial Reviewp. 375
Legislative Intent as the Central Principle of Administrative Law? The Implications for the Substance of Other Areas of the Lawp. 378
Legislative Intent as the Central Principle of Administrative Law? The Formal Basis for Judicial Interventionp. 380
Conclusionp. 391
Heat and Light: A Plea for Reconciliationp. 393
The Vanishing of the "Strong" Criticsp. 393
The Emergence of Consensus on Judicial Review of Non-statutory Discretionp. 395
Big-endians and Little-endiansp. 396
The Legal Status of the Ultra Vires Doctrinep. 397
The Constitutional Justification for Judicial Reviewp. 399
Is Abandoning Ultra Vires a Challenge to Parliamentary Sovereignty?p. 400
The Theoretical Criticismp. 404
The Consequences of Abandonment for Administrative Lawp. 405
Conclusionp. 408
Comments from some Participants
T.R.S. Allan: The Rule of Law as the Foundation of Judicial Reviewp. 413
Professor Stephen Bailey: Judicial Review in a Modern Contextp. 421
Sir Robert Carnwath: No Need for a Single Foundationp. 423
Professor Martin Loughlin: Whither the Constitution?p. 425
Professor Michael Taggart: Ultra Vires as Distractionp. 427
Sir William Wade FBA: Constitutional Realities and Judicial Prudencep. 431
Indexp. 433
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131054
ISBN-10: 1841131059
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 480
Published: 1st May 2000
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 23.5 x 15.88  x 3.18
Weight (kg): 0.75
Edition Number: 1