Wilberg and Elliott (eds): The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow

Wilberg, ElliotI recently completed work on a book, co-edited with Hanna Wilberg of The University of Auckland, entitled The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. The book will be published in 2015 by Hart Publishing. In the meantime, a copy of the editors’ introduction can be downloaded here.

Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds such as unreasonableness be expanded and intensified? In their contributions to the volume, Sir Jeffrey Jowell (Bingham Centre for the Rule of Law and Emeritus Professor, University College London), Jason Varuhas (University of Cambridge/University of New South Wales) and I agree with Taggart that proportionality should not “sweep the rainbow”, but propose different schemes for organizing and conceptualizing substantive review. Meanwhile, Matthew Groves (Monash University), Greg Weeks (University of New South Wales) and Cora Hoexter (University of the Witwatersrand, Johannesburg) evaluate the state of substantive review in Australia and South Africa respectively.

The second theme concerns the broader (Canadian) sense of substantive review including the illegality grounds, and whether deference should extend to these grounds. Peter Cane (Australian National University) and Mark Aronson (University of New South Wales) consider the relevance and impact of different constitutional and doctrinal settings, while Hanna Wilberg (University of Auckland) and Paul Daly (University of Montreal) address questions concerning when and how deference is to operate once it is accepted as appropriate in principle.

Rights-based review is discussed in a separate third part because it raises both of the above questions. Claudia Geiringer (Victoria University of Wellington), Sir Philip Sales (England & Wales Court of Appeal) and Mark Walters (Queen’s University, Ontario) examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy.

Taggart’s work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build upon and develop that approach.