Full Description
This collection of essays presents opposing sides of the debate over the foundations of judicial review. In this work,however, the discussion of whether the 'ultra vires' doctrine is best characterised as a central principle of administrative law or as a harmless, justificatory fiction is located in the highly topical and political context of constitutional change. The thorough jurisprudential analysis of the relative merits of models of 'legislative intention' and 'judicial creativity' provides a sound base for consideration of the constitutional problems arising out of legislative devolution and the Human Rights Act 1998. As the historical orthodoxy is challenged by growing institutional independence, leading figures in the field offer competing perspectives on the future of judicial review. "Confucius was wrong to say that it is a curse to live in interesting times. We are witnessing the development of a constitutional philosophy which recognises fundamental values and gives them effect in the mediation of law to the people".
(Sir John Laws) Contributors Nick Bamforth, Paul Craig, David Dyzenhaus, Mark Elliott, David Feldman, Christopher Forsyth, Brigid Hadfield, Jeffrey Jowell QC, Sir John Laws, Dawn Oliver, Sir Stephen Sedley, Mark Walters. With short responses by: TRS Allan, Stephen Bailey, Robert Carnworth, Martin Loughlin, Michael Taggart, Sir William Wade.
Contents
Part 1 The debate begins: is the ultra vires rule the basis of judicial review?, Professor Dawn Oliver - sources of power, institutions, functions, conclusions; of fig leaves and fairy tales - the ultra vires doctrine, the sovereignty of parliament and judicial review, Christopher Forsyth - introduction, judicial review and the exercise of non-legal powers by non-statutory bodies, "weak" and "strong" criticism of the ultra vires doctrine, the response to "weak" criticism, reconciling the "weak" criticism with orthodoxy, the utility of fig-leaves and fairy tales, the response to "strong" criticism, conclusions; ultra vires and the foundations of judicial review, Professor Paul Craig FBA - the criticism of the ultra vires doctrine, the defence of the ultra vires principles - the dangers of its abandonment, the defence of the ultra vires principle - meeting the objections, the foundations of judicial review, conclusion; illegality - the problem of jurisdiction, Lord Justice Laws - R v Hull University ex p Page; the ultra vires doctrine in a constitutional setting - still the central principle of administrative law, Mark Elliott - introduction, the importance of justifying judicial review, the relationship between legislative intention and judicial review, a constitutional setting for the ultra vires doctrine - overcoming the shortcomings of the traditional model, conclusion. Part 2 The jurisprudential debate: ultra vires and institutional interdependence, Nicholas Bamforth - criteria for assessing the merits of a legal theory, ultra vires as the constitutional foundation of judicial review, institutional interdependence and Hart's rule of recognition, an analogy - parliamentary privilege, conclusion - making explicit the basis of judicial review; form and substance in the rule of law - a democratic justification for judicial review, Professor David Dyzenhaus - introduction, procedure and substance in practical theory, positivism, judicial review and the rule of law, substance and judicial supremacist, the pleasing persistence of process based theories; judicial review and the meaning of law - Lord Justice Laws - introductory, the common law, philosophy, positivism, the nature of principle, the rule of law, parliament and the judges. Part 3 Constitutional reform and the foundations of judicial review: the foundations of review, devolved power and delegated power, Professor Brigid Hadfield - general introduction, the realities, devolution - the mechanics, conclusions; the courts, devolution and judicial review, Professor Paul Craig FBA and Mark Walters - Wales, executive devolution and the assignment of limited competence, judicial challenge to the competence of the assembly, Scotland, legislative devolution and the demarcation of legislative competence, political challenge to the competence of the Scottish parliament, judicial challenge to the competence of the Scottish parliament, judicial determination of legislative competence. (Part Contents).
