CICA v Hutton: The law/fact distinction and the opportunities and risks of post-analytical reasoning

One of the first posts I wrote on this blog concerned the Supreme Court’s decision in Jones  v First-tier Tribunal [2013] UKSC 19. At the heart of the case was the distinction between questions of law and fact, and its implications for judicial oversight of tribunals. The distinction is important because if an issue that has been erroneously determined is one of law, then an error of law has been committed, rendering the tribunal’s decision vulnerable whether on appeal on a point of law or on judicial review. In contrast, a determination flawed by an error of fact is not … Continue reading CICA v Hutton: The law/fact distinction and the opportunities and risks of post-analytical reasoning

The Admin Law Blog

Today sees the launch of a new, multi-author blog concerning administrative law in the common law world. I am pleased, at the request of the editors of the Admin Law Blog, to cross-post the following piece, in which they announce the launch of their site and set out their vision for it. The Admin Law Blog can be followed on Twitter via @adminlawblog; the editors welcome submissions to alawblogorg@gmail.com.  The Admin Law Blog is a forum for the discussion of ideas and developments of interest to scholars of administrative law across the common law world. It aims to connect administrative law scholars to each other and to … Continue reading The Admin Law Blog

Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons

In Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, a Court of Appeal with strong public law credentials — consisting of Elias, Patten and Sales LJJ — addressed the scope of the common law duty to give reasons. In this area, the orthodox position has long been understood to consist in the principle — laid down by Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 — that there is no ‘general duty’ to give reasons, coupled with the guidance given by Sedley J in R v Higher Education … Continue reading Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons

Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case

Senior judges occasionally find it hard to resist the temptation to speculate about whether parliamentary sovereignty is ‘absolute’ — which, of course, amounts to speculating about whether Parliament is really sovereign at all. One of the principal triggers for such speculation is the question whether Parliament is capable of ousting the courts’ judicial review jurisdiction. Perhaps most notable in this regard is Lady Hale’s speech in R (Jackson) v Attorney General [2005] UKHL 56, delivered not long after the Government, yielding to intense criticism, removed an ouster clause from what became the Asylum and Immigration (Treatment of Claimants, etc.) Act … Continue reading Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International case

Elliott & Varuhas, Administrative Law, 5th edition

The fifth edition of Administrative Law has been published by Oxford University Press. The new edition is co-written by Mark Elliott, Professor of Public Law at the University of Cambridge, and Jason NE Varuhas, Associate Professor of Law at the University of Melbourne. The following blogpost is based on the authors’ preface to the fifth edition. In the three decades since its first edition was published, this book — like English administrative law itself — has undergone many changes. The first two editions, published in 1983 and 1989 and written by Sir Jack Beatson and Martin Matthews, took the form of … Continue reading Elliott & Varuhas, Administrative Law, 5th edition

The House of Lords Constitution Committee reports on Article 50

By Mark Elliott and Stephen Tierney The House of Lords Constitution Committee today publishes its report on the process by which the United Kingdom will withdraw from the European Union, a process that will result “in the most significant changes to the UK’s constitution in a generation”. The Committee accepts that the referendum result is clear and therefore must be implemented, but it is also firmly of the view that Parliament must be involved: “The Government should not trigger Article 50 [TEU] without consulting Parliament.” Parliament, the Executive and Article 50 Turning to Article 50, the Committee accepts that the … Continue reading The House of Lords Constitution Committee reports on Article 50

Judicial Power’s 50 “problematic” cases and the limits of the judicial role

The Judicial Power Project has published a list of 50 “problematic” cases. It makes for interesting reading. The aim of the Judicial Power Project is to address the “problem” of “judicial overreach” which, it is said, “increasingly threatens the rule of law and effective, democratic government”. It is odd, therefore, to find on Judicial Power’s list of 50 “problematic” cases Liversidge v Anderson — which is criticised by the editors of the list as showing “excessive deference to the executive’s wide discretionary powers in wartime” and for “giving no effect to a statutory provision requiring the Home Secretary to have … Continue reading Judicial Power’s 50 “problematic” cases and the limits of the judicial role