Tag: proportionality

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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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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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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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.

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The Queen’s Speech, the Immigration Bill and Article 8 ECHR

The Government has made no secret of its determination to make it harder for foreign criminals to resist deportation on the ground that it would infringe their right to private and family life under Article 8 ECHR. It is no surprise, therefore, that this is one of the issues to be tackled in the Immigration

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Does the ultra vires doctrine prevent courts from replacing Wednesbury review with proportionality?

Sir Philip Sales has an interesting piece in the latest edition of the Law Quarterly Review. In “Rationality, Proportionality and the Development of the Law” (2013) 129 LQR 223, Sales responds to the argument—advanced perhaps most robustly by Paul Craig—that the Wednesbury doctrine of unreasonableness should be supplanted by the proportionality test. As such, Sales

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