Tag: deference

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

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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

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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

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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

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#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

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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

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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

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Beyond Sark: The implications of the Barclay case

Although at one level astonishingly complex, the issues at stake in R (Barclay) v Secretary of State for Justice (No 2) [2014] UKSC 54 (press summary) (judgment) can be stated relatively simply for the purpose of seeking to understand its broader significance. Article 6 of the European Convention on Human Rights requires, among other things, judicial

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The right to die: deference, dialogue and the division of constitutional authority

The UK Supreme Court’s decision in R (Nicklinson) v Ministry of Justice [2014] UKSC 38 is one of the most constitutionally significant and interesting judgments that has been given under the Human Rights Act 1998 in recent years. The case is also of potentially great social importance, given the nature of changes to the law

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The Immigration Act 2014: Judicial review, proportionality and democratic deference

In my first post on section 19 of the Immigration Act 2014, I explained that it sets out to modify the way in which courts and tribunals determine immigration cases. It does so by directing judges to have regard to certain considerations when adverse immigration decisions are challenged in reliance upon the right to respect for private

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