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The Constitutional Foundations of Judicial Review - Mark Elliott

The Constitutional Foundations of Judicial Review

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Recent years have witnessed a vibrant debate concerning the constitutional basis of judicial review, which reflects a broader discourse about the role of the courts, and their relationship with the other institutions of government, within the constitutional order. This book comprehensively analyses the foundations of judicial review. It subjects the traditional justification, based on the doctrine of ultra vires, to criticial scrutiny and fundamental reformulation, and it addresses the theoretical challenges posed by the impact of the Human Rights Act 1998 on administrative law and by the extension of judicial review to prerogative and non-statutory powers. It also explores the relationship between the theoretical basis of administrative law and its practical capacity to safeguard individuals against maladministration. The book seeks to develop a constitutional rationale for judicial review which founds its legitimacy in core principles such as the rule of law, the separation of powers and the sovereignty of Parliament. It presents a detailed analysis of the interface between constitutional and administrative law, and will be of interest to all public lawyers.

Industry Reviews

It is a challenging work in every sense of the term. The thesis is closely argued. It enganges the reader. It is combative. Paul Craig Nicholas Bamforth, Oxford University Public Law March 2001 A stimulating and exciting discussion of argument for judicial review, which will surely be the source of much debate. Christian Jowett New Law Journal July 2001

Table of Casesp. xix
Table of Legislationp. xxv
Glossaryp. xxix
Justifying Judicial Reviewp. 1
The Rise of Judicial Reviewp. 1
The Challenge: Justifying Judicial Reviewp. 3
Ultra Vires and Statutory Powerp. 3
Judicial Review and the Human Rights Act 1998p. 4
Beyond Statutory Power: New Vistas of Judicial Reviewp. 4
The Notion of Constitutional Legitimacyp. 10
The Importance of Examining Constitutional Legitimacyp. 12
Introductionp. 12
Allocation of Governmental Power: An Unregulated Matter of Fact?p. 13
The British Constitution, Power-Allocation and the Courtsp. 15
The Expansion of Judicial Review and Questions of Constitutional Proprietyp. 17
Conclusionp. 19
The Traditional Ultra Vires Principlep. 23
Structural Coherence and Internal Coherencep. 23
Introductionp. 23
Structural Coherencep. 23
Internal Coherencep. 26
The Artificiality of the Ultra Vires Principlep. 27
Passive Artificialityp. 28
Active Artificialityp. 30
The Emptiness of the Ultra Vires Principlep. 34
The Radical and the Moderatep. 35
Legislative Frameworks and the Control of Discretionary Powerp. 37
Introductionp. 37
The Constitutional Status of Legislative Intentionp. 42
Introductionp. 42
The Orthodox Accountp. 44
The "New View"p. 49
The Limited Competence Modelp. 56
The background to the anti-sovereignty discoursep. 56
Two variants of the anti-sovereignty discoursep. 60
Theoretical and empirical aspects of the anti-sovereignty discoursep. 65
Judicial attitudep. 66
The Human Rights Act 1998p. 70
Connecting the theoretical and empirical aspects of the anti-sovereignty discoursep. 71
From Theory to Reality: The Necessity of Ultra Vires within the Limited Competence Modelp. 73
Introductionp. 73
Abandoning ultra vires: The theoretical potential of the limited competence modelp. 74
Abandoning ultra vires: The empirical reality of the limited competence modelp. 76
Conclusionp. 79
European Union Law and Parliamentary Sovereigntyp. 80
The impact of European Union law on parliamentary sovereigntyp. 80
The justification of judicial reviewp. 83
Legislation and the Scope of Discretionary Powerp. 87
Introductionp. 87
The Nature and Consequences of Parliamentary Sovereigntyp. 89
The "Undistributed Middle"p. 91
The nature of the argumentp. 91
Considerations of abstract logicp. 94
Considerations of constitutional logic and pragmatismp. 95
Conclusionp. 96
The Modified Ultra Vires Principlep. 97
Introductionp. 97
Judicial Review and the Rule of Lawp. 98
Introductionp. 98
Relating Judicial Review to the Rule of Lawp. 100
Judicial Review, the Rule of Law and Judicial Creativityp. 104
Ultra Vires Methodology in a Constitutional Settingp. 106
Introductionp. 106
Statutory Interpretation in Constitutional Contextp. 107
The Implications of the Modified Ultra Vires Principlep. 113
Structural Coherence and Internal Coherencep. 119
The Modified Ultra Vires Principle: Overcoming the Deficiencies of the Traditional Modelp. 121
Avoiding the Problem of Active Artificialityp. 121
The Development of Administrative Law Across Timep. 125
The Scope of Judicial Reviewp. 127
The Advantages of the Modified Ultra Vires Principle over the Common Law Theory of Reviewp. 130
Introductionp. 130
Purchasing Structural Coherence for the Common Law Modelp. 131
An Unwelcome Distinction in Administrative Lawp. 134
Introductionp. 134
The problemp. 135
The underlying causes of the problemp. 138
Conclusionp. 144
The Courts' Response to Preclusive Provisionsp. 145
Preclusive provisions and the logical implications of ultra viresp. 145
Preclusive provisions and statutory constructionp. 147
The dual foundations of an interpretative approach to preclusive provisionsp. 154
A common law basis of review and the differential impact of preclusive provisionsp. 156
Voidness and Collateral Challengep. 157
The logical connection between ultra vires and voidnessp. 157
Abandoning ultra vires: The consequences for voidness and collateral challengep. 159
Conclusionp. 161
Beyond the Logical Boundary? Judicial Review of Non-Statutory Powerp. 165
Introductionp. 165
The Sources of Governmental Powerp. 166
The Importance of Sources of Powerp. 166
Legal Power and Residual Libertyp. 167
Conclusionsp. 172
Prerogative power and de facto powerp. 172
The conceptual basis of judicial reviewp. 174
Judicial Review of Prerogative Powerp. 175
Judicial Review of the Existence and Extent of Prerogative Powerp. 175
Judicial Review of the Manner of Exercise of Prerogative Powerp. 178
Judicial Review of Exercises of Delegated Prerogative Powerp. 182
Conclusionsp. 185
Judicial Review of De Facto Governmental Powerp. 186
The Growth of De Facto Power and the Response of the Courtsp. 186
Why Review?p. 191
The Legal Basis of Reviewp. 193
Legal power and de facto powerp. 193
Vires-based and rule-based reviewp. 194
Conclusionp. 195
Judicial Review and Human Rightsp. 197
Human Rights in the United Kingdomp. 197
The Background to the Human Rights Act 1998p. 197
The Human Rights Act 1998p. 200
The Constitutional Foundations of Human Rights Reviewp. 202
Introductionp. 202
Human Rights Protection Without Incorporation?p. 204
Human Rights in English Administrative Lawp. 207
The ECHR and discretionary powerp. 207
Judicial review generallyp. 209
Wednesbury unreasonableness and human rightsp. 209
Common law constitutional rightsp. 212
Conclusionsp. 217
The Human Rights Act as a Constitutional Warrantp. 218
The dualist tradition of English lawp. 218
Legitimacy in two contextsp. 219
The judiciary and the legislaturep. 220
The judiciary and the executivep. 225
Human Rights Review and the Traditional Law of Judicial Reviewp. 229
The judiciary and the legislaturep. 230
The judiciary and the executivep. 231
Conclusionp. 232
The Legal Basis of Human Rights Reviewp. 233
Human Rights as Substantive Rules of Good Administrationp. 233
A rule-based approach to human rights review?p. 233
Rule-based review, entrenchment and sovereigntyp. 234
Human Rights as Interpretative Constructsp. 238
A vires-based, not a rule-based, model of judicial reviewp. 238
The vires-based model and the relationship between sections 3(1) and 6(1)p. 239
Further Implications of the Vires-Based Modelp. 240
Vires-based human rights review and the modified ultra vires principlep. 241
Preclusive provisionsp. 242
Collateral challengep. 242
Conclusionp. 244
The Constitutional Foundations of Judicial Reviewp. 247
Introductionp. 247
Constitutional Justification and Normative Justificationp. 247
A Context-Sensitive Approach to Constitutional Justificationp. 250
Impetus and Implementationp. 251
Conclusionp. 252
Indexp. 255
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131801
ISBN-10: 1841131806
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 296
Published: 16th March 2001
Country of Publication: GB
Dimensions (cm): 23.5 x 16.51  x 2.54
Weight (kg): 0.59
Edition Number: 1