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”

Wilberg and Elliott (eds): The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow

I recently completed work on a book, co-edited with Hanna Wilberg of The University of Auckland, entitled The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. The book will be published in 2015 by Hart Publishing. In the meantime, a copy of the editors’ introduction can be downloaded here. Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds such as unreasonableness be expanded and intensified? In their contributions to the volume, Sir … Continue reading Wilberg and Elliott (eds): The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow

Reasonableness review and the Court of Appeal’s decision in the Prince Charles correspondence case

I have written before about the saga concerning the disclosure of so-called advocacy correspondence sent by Prince Charles to Government Departments: in particular, about the Upper Tribunal’s decision, holding that the correspondence had to be released under the Freedom of Information Act 2000; the Attorney-General’s subsequent decision to use the “veto” power under that Act to block disclosure in spite of the Tribunal decision; and, most recently, the Administrative Court’s decision upholding the lawfulness of the Attorney-General’s exercise of the veto power. I will not, therefore, attempt to summarise the issues or the history, which can be found in my earlier posts on this subject. Continue reading “Reasonableness review and the Court of Appeal’s decision in the Prince Charles correspondence case”

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”

Where next for the Wednesbury principle? A brief response to Lord Carnwath

In his recent annual lecture to the Constitutional and Administrative Law Bar Association, Lord Carnwath spoke to the title: “From judicial outrage to sliding scales—where next for Wednesbury?” In this post, I outline some of the key points made in the lecture and offer some critical commentary on the approach to substantive judicial review commended by Carnwath. Much of the lecture is devoted not to a positive account of how substantive review ought to work, but to a critique of approaches to the reasonableness doctrine that are discernible in current and prior jurisprudence. For instance, Carnwath rejects the formulation of the unreasonableness—or irrationality—principle advanced … Continue reading Where next for the Wednesbury principle? A brief response to Lord Carnwath

Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General

The Administrative Court gave judgment earlier today in R (Evans) v Attorney-General [2013] EWHC 1960 (Admin). The case concerns a challenge to the legality of the Attorney-General’s decision to use s 53 of the Freedom of Information Act 2000 to block the disclosure of letters written to Ministers by Prince Charles. The s 53 veto was issued in order to avoid having to release the letters following a decision by the Upper Tribunal holding that the public interest required their disclosure. I have commented in previous posts on the decision of the Upper Tribunal and on the Attorney-General’s decision to override that decision by invoking s 53. Continue reading “Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General”