In the Privacy International case, the Court of Appeal accepted that an ouster clause precluded judicial review of the Investigatory Powers Tribunal. Sales LJ contended that the issue turned on 'a short point of statutory construction'. The reality, however, is that such cases take the courts into the deepest of constitutional waters.
The Unison case is an important victory for workers who wish to enforce their rights in Employment Tribunals. But the Supreme Court's judgment also implicates some key principles of UK constitutional law — and raises a question about how far courts can go in upholding such principles.
One of the first posts I wrote on this blog concerned the Supreme Court’s decision in Jones v First-tier Tribunal  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… Continue reading Discarding the fig-leaf of analytical reasoning? The Hutton case and the law/fact distinction
In Oakley v South Cambridgeshire District Council  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… Continue reading Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons
Ouster clauses raise difficult questions about the relationship between the constitutional principles of the rule of law and the sovereignty of Parliament — as the disagreement between the two judges in this case demonstrates
The legitimate extent of judicial authority is a perennial and thorny question. In this lecture, I address the question from the perspective of public law — and, in particular, with reference to the role that judges play in relation to "constitution-making".
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… Continue reading Judicial Power’s 50 “problematic” cases and the limits of the judicial role
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… Continue reading The duty to give reasons and the new statutory “makes no difference” principle
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… Continue reading Bell, Elliott, Varuhas and Murray (eds): Public Law Adjudication in Common Law Systems: Process and Substance
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  UKSC 20 (on which I posted here), Pham v Secretary of State for the Home Department  UKSC 19 (blog post) and… Continue reading Youssef: Another Supreme Court decision, another set of obiter dicta on substantive judicial review