The Scope and Intensity of Substantive Review: Traversing by Hanna Wilberg, Mark Elliott

By Hanna Wilberg, Mark Elliott

Encouraged via the paintings of Professor Michael Taggart, this choice of essays from around the universal legislation global is worried with separate yet comparable subject matters. First, to what quantity and by means of what capability may still evaluation on sizeable grounds, akin to unreasonableness, be accelerated and intensified? Jowell, Elliott, and Varuhas all trust Taggart that proportionality are not 'sweep the rainbow,' yet suggest various schemes for organizing and conceptualizing sizeable evaluation. Groves and Weeks, and Hoexter assessment the kingdom of important evaluation in Australia and South Africa respectively. the second one subject matter issues the wider (Canadian) experience of noticeable overview, together with the illegality grounds, and even if deference should still expand to those grounds. Cane and Aronson contemplate the relevance and impression of alternative constitutional and doctrinal settings. Wilberg and Daly tackle questions touching on while and the way deference is to function as soon as it really is accredited as applicable in precept. Rights-based overview is mentioned in a 3rd part since it increases either one of the above questions. Geiringer, revenues, and Walters study the alternatives to be made in settling the strategy during this quarter, each one concentrating on a unique dichotomy. Taggart's paintings is awesome for treating those a variety of features of major overview as components of a broader complete, and for his look for a suitable stability among judicial scrutiny and administrative autonomy throughout this complete region. by way of bringing jointly essays on these kind of subject matters, this quantity seeks to construct on that process. (Series: Hart experiences in Comparative Public legislation) [Subject: Constitutional legislations, Administrative legislations, Comparative legislation, Human Rights legislation]

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DHT essay (n 5) 29. R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237. 22 M Taggart, ‘Administrative Law’ [2003] New Zealand Law Review 99 at 106–107. More generally on the topic, see also M Taggart, ‘Administrative Law’ [2000] New Zealand Law Review 439, 446–50. 23 DHT essay (n 5) 32. 24 D Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in M Taggart (ed), The Province of Administrative Law (Oxford, Hart Publishing, 1997) 279. 25 DHT essay (n 5), 28; Taggart, ‘Reinventing’ (n 2) 332, 334; Taggart, ‘Proportionality’ (n 1) 456–57, 458, 460, 461 and 463.

This approach derives a degree of support from some UK cases decided around the time of the entry into force of the Human Rights 106 R (Rotherham Metropolitan Borough Council) v Secretary of State for Business [2014] EWHC 232 (Admin) [69]. 107 Ibid, [70]. 108 Re McC [1985] AC 528, 536 (Lord Bridge) (HL). 109 M Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of “Due Deference”’ in N Bamforth and P Leylands (eds), Public Law in a Multi-layered Constitution (Oxford, Hart Publishing, 2003) 337, 344–49.

First, and most fundamentally, there is disagreement about whether deference is appropriate at all. 113 The court’s job, says Allan, is to determine whether the impugned administrative act is unlawful: a function it ought to discharge by reference to the quality of arguments advanced in support, not the characteristics of the defendant who advances those arguments. 116 Aileen Kavanagh, meanwhile, argues that Allan’s position overlooks the fact that 110 See, eg R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 328 (HL) 380 (Lord Hope); International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] QB 728, [77] (Laws LJ).

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