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

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

The duty to give reasons and the new statutory “makes no difference” principle

I wrote in December about what might loosely be termed the “makes no difference” principle introduced by section 84 of the Criminal Justice and Courts Act 2015, which  inserts new provisions into section 31 of the Senior Courts Act 1981. The effect is that in judicial review proceedings the High Court must refuse relief if it appears “to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”, unless the granting of relief is appropriate “for reasons of exceptional public interest”. (Equivalent provision is also made about the … Continue reading The duty to give reasons and the new statutory “makes no difference” principle

Bell, Elliott, Varuhas and Murray (eds): Public Law Adjudication in Common Law Systems: Process and Substance

In September 2014,together with my colleagues John Bell, Jason Varuhas and Philip Murray, I co-convened a conference in Cambridge on the subject of Process and Substance in Public Law—the first in a series of major international conferences on public law. Hart Publishing has now published Public Law Adjudication in Common Law Systems: Process and Substance, a collection of essays based on a selection of papers that were delivered at the conference. Like the conference itself, the book reflects the fact that while those from common law jurisdictions share background understandings, significant differences between such systems create opportunities for valuable exchanges of ideas and debate. … Continue reading Bell, Elliott, Varuhas and Murray (eds): Public Law Adjudication in Common Law Systems: Process and Substance

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

Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis

The following is a response to Professor John Finnis’s recent lecture on judicial power. Professor Finnis’s lecture, and this response, form part of Policy Exchange’s Judicial Power Project. The following response was first published on the Judicial Power Project’s website and is reproduced here with permission.  Professor John Finnis’s lecture on judicial power, part of Policy Exchange’s Judicial Power Project, is as stimulating as it is provocative. Judicial decisions and doctrines that stand at the forefront of contemporary public law are castigated: the seminal Belmarsh Prison case is a “shipwreck”; the Supreme Court’s recent decision in Evans is so “extravagantly Procrustean” … Continue reading Judicial Power in Normative, Institutional and Doctrinal Perspective: A Response to Professor Finnis