Justification, calibration and substantive judicial review: putting doctrine in its place

This post is a working paper. It contains some ideas I am developing for a longer piece which will appear in an edited collection on substantive judicial review. This working paper, which was first published on the UK Constitutional Law Blog, can also be downloaded from SSRN. To observe that substantive judicial review, and the notions of proportionality and deference in particular, constitute well-trodden ground would be to engage in reckless understatement. And that, in turn, might suggest that there is nothing more that can usefully be said about these matters. Yet the debate in this area of public law remains vibrant—and for … Continue reading Justification, calibration and substantive judicial review: putting doctrine in its place

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 supports the view—articulated by the late Michael Taggart, among others—that public law should be “bifurcated”, with rationality and proportionality review co-existing. Continue reading “Does the ultra vires doctrine prevent courts from replacing Wednesbury review with proportionality?”