The importance of consistency in decision-making has been increasingly recognised in English administrative law. The Supreme Court’s recent judgment in Gallaher, in which consistency is said not to be a free-standing administrative law principle, is thus both surprising and questionable.
Twelve years ago, the Court of Appeal said—in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence  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 … Continue reading Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five
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 … Continue reading Book chapter: From Bifurcation to Calibration — Twin-Track Deference and the Culture of Justification
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, … Continue reading Wilberg and Elliott (eds): The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow
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 … Continue reading Reasonableness review and the Court of Appeal’s decision in the Prince Charles correspondence case
In its recent decision in R (Rotherham MBC) v Secretary of State for Business, Innovation & Skills  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. … Continue reading The super-Wednesbury principle is alive and well: R (Rotherham MBC) v Business Secretary
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 … Continue reading Where next for the Wednesbury principle? A brief response to Lord Carnwath
The Administrative Court gave judgment earlier today in R (Evans) v Attorney-General  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 … Continue reading Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General
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 … Continue reading Does the ultra vires doctrine prevent courts from replacing Wednesbury review with proportionality?