Mark Elliott: Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place – UK Constitutional Law Group

Posted September 18th, 2013 in human rights, judicial review, news, parliament, proportionality, rule of law by sally

“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 good reason. Like the controversy about the foundations of judicial review in which many public lawyers engaged energetically over a decade ago, the controversy about substantive review is ultimately a manifestation of underlying disagreements concerning the nature, status and interaction of fundamental constitutional principles, including the rule of law, the separation of powers and the sovereignty of Parliament. It is hardly surprising, then, that questions about the intensity of review and (what amounts to the reverse side of the same coin) deference remain under active discussion long after the debate was ignited by the entry into force of the Human Rights Act 1998.”

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UK Constitutional Law Group, 17th September 2013