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

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

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 and family life enshrined in Article 8 of the European Convention on Human Rights. In particular, the Act stipulates how the “public interest” is to be understood—providing, for example, that the “deportation of foreign criminals” and the “maintenance of effective immigration controls” are “in the public interest”; that “little weight” should be attached to certain matters (e.g. a private life established whilst unlawfully present in the UK), and that the public interest requires the deportation of foreign criminals outwith exceptional circumstances. Continue reading “The Immigration Act 2014: Judicial review, proportionality and democratic deference”

The super-Wednesbury principle is alive and well: R (Rotherham MBC) v Business Secretary

In its recent decision in R (Rotherham MBC) v Secretary of State for Business, Innovation & Skills [2014] EWHC 232 (Admin), the Administrative Court considered a challenge, brought by several local authorities, to decisions concerning the allocation of EU structural funding as between the four constituent countries of the UK and as between English regions. The challenge succeeded on the ground that the Secretary of State had failed to consider the Public Sector Equality Duty imposed by the Equality Act 2010. However, the claimant local authorities failed to establish the substantive unlawfulness of the decisions on reasonableness or proportionality grounds. In deciding the latter aspect of the case, Stewart J made some interesting observations concerning the relationship between the reasonableness and proportionality doctrines, and about the nature of substantive review in cases such as the present one. Continue reading “The super-Wednesbury principle is alive and well: R (Rotherham MBC) v Business Secretary”