Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review

Supreme Court judgments addressing—but not resolving—the future direction of substantive judicial review have been coming thick and fast in the last year or two. Notable examples include Kennedy v The Charity Commission [2014] UKSC 20 (on which I posted here), Pham v Secretary of State for the Home Department [2015] UKSC 19 (blog post) and Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (blog post). To that list can now be added Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 (press summary) (judgment). The challenge was to the Secretary of … Continue reading Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review

Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five

Twelve years ago, the Court of Appeal said—in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003] EWCA Civ 473—that, given its perceived deficiencies when viewed alongside the proportionality doctrine, it was difficult to see ‘what justification there now is for retaining the Wednesbury test’. However, said the Court of Appeal of Wednesbury, ‘it is not for this court to perform its burial rites’. Nor, it would appear, is it for a five-Justice Supreme Court to do so, at least according to this week’s decision of that Court in Keyu v Secretary of … Continue reading Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five

Book chapter: From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification

I am pleased to be able to share a near-final draft of my chapter in The Scope and Intensity of Substantive Judicial Review: Traversing Taggart’s Rainbow. The book is a collection of essays, inspired by the work of the late Professor Michael Taggart, and edited by Hanna Wilberg and me. It will be published shortly by Hart Publishing. My chapter develops ideas that I sketched in a blog post published in 2013, and which I first presented in 2011 at a seminar given at the Faculty of Law at The University of Auckland. The piece, entitled “From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification”, can be downloaded here. Continue reading “Book chapter: From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification”

Proportionality and contextualism in common-law review: The Supreme Court’s judgment in Pham

The recent decision of the UK Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19 marks a turning-point in the role of proportionality as a common-law ground of judicial review. Although the case did not ultimately turn upon proportionality, the judgments contain detailed discussion of the doctrine, and evidence judicial support for its availability as a ground of judicial review irrespective of whether the case has a European Union or ECHR dimension to it. And while this judgment does not come out of the blue — other cases have hinted at this development — Pham is particularly … Continue reading Proportionality and contextualism in common-law review: The Supreme Court’s judgment in Pham

#50cases — Three suggestions

Adam Wagner, editor of the excellent UK Human Rights Blog, is in the process of launching a new Human Rights Information Project, as part of which he is crowdsourcing “50 human rights cases absolutely everyone needs to know about“. Adam has asked for suggestions to be sent to humanrightsinformationproject@gmail.com by 5.00 pm on Friday 27 February 2015, so you still have a couple of days to get your suggestions to him. Here are my three nominations. In line with my own areas of interest, I have limited myself to decisions by UK courts, and have focussed on cases that relate to the protective … Continue reading #50cases — Three suggestions

The Rotherham case in the Supreme Court: Deference, reasonableness and proportionality

I posted here about the decision of Stewart J in R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills. The case concerns a challenge to the lawfulness of UK Government allocations of EU funds to different parts of the UK, the essential argument being that the basis upon which such allocations were made failed to treat like regions alike and unlike regions differently. The Supreme Court ([2015] UKSC 6) has now given judgment, holding, by a 4-3 majority, that the Government’s decisions were lawful. The factual background and judgments are summarised very well in the Court’s press summary, … Continue reading The Rotherham case in the Supreme Court: Deference, reasonableness and proportionality

Human rights, proportionality and the judicial function: R (Carlile) v Home Secretary in the Supreme Court

The Supreme Court’s judgment in R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60 (press summary) (judgment) raises some interesting and significant points about the role of the courts when applying the proportionality test in cases concerning interferences with qualified human rights. The central question was whether the Home Secretary had breached the right to freedom of expression in Article 10 of the European Convention on Human Rights. The allegation that she had done so stemmed from her decision to refuse to allow Maryam Rajavi — a “dissident Iranian politician” who had close links to a … Continue reading Human rights, proportionality and the judicial function: R (Carlile) v Home Secretary in the Supreme Court