Reconstructing Judicial Review

Description

This book offers a new interpretation of judicial review in England and Wales as being concerned with the advancement of justice and good governance, as opposed to being concerned primarily with ultra vires or common law constitutionalism. It is developed both from examining the functions and values that ought to be served by judicial review, and from analysis of empirical ‘social’ facts about judicial review primarily as experienced in the Administrative Court. Based on ground-up case law analysis it constructs a new taxonomy on the grounds of judicial review: mistake, procedural impropriety, ordinary common law statutory interpretation, discretionary impropriety relevant/irrelevant considerations, breach of an ECHR protected right or equality duty, and constitutional allocation of powers, constitutional rights, or other complex constitution principles. It explains each of these grounds, what academic and judicial support there might be for them outside case law analysis, and their similarities and differences when viewed against popular existing taxonomies. It concludes that Administrative Court judges are engaged in ordinary common law statutory interpretation in approximately half of all cases, and that where discretionary judgement is involved on the part of the initial decision-maker, judges do indeed consider their task to be one of determining whether the challenged decision was justified by reasoning of adequate quality. It finds that judges apply ordinary common law principles of statutory interpretation with historical pedigrees, including assessing the initial decision-maker’s reasoning with reference to statutory purpose, and sifting relevant from irrelevant considerations, including moral considerations. The result is a ground-breaking reassessment of the grounds of judicial review in England and Wales and the practice of the Administrative Court. Contents 1 Introduction: Reconstructing Judicial Review I. The Reformation of Administrative Law and Judicial Review II. Interpretations of Judicial Review III. The Dual Nature of Law and The Methodology of This Study: Constructive Interpretation IV. The History of Judicial Review and Manifest Interpretations V. Judicial Review and Values VI. An Operative Interpretation of Judicial Review VII. A New Taxonomy of Grounds of Review VIII. A Target Interpretation of Judicial Review and Judicial Rationality IX. Judicial Review For The Advancement of Justice and Good Governance 2 The Dual Nature of Law and the Methodology of this Study: Constructive Interpretation I. Legal Theory and Empirical Analysis: The Argument For Separation II. Rationality and Empiricism III. Positivism IV. Constructive Interpretation V. Sociolegal Research: Social Scientific Positivism, Interpretivism and Constructivism VI. The Methodology of This Study 3 Judicial Review and Values I. The Triptych of Constitutional Values II. The Rule of Law and The Value of Legality III. Democracy, Equality and Liberty IV. Authority and Expertise V. Legal Justice and Legal Rationality V"s Administrative Justice and Administrative Rationality VI. Public Interest and Common Good VII. The Advancement of Justice and Good Governance 4 An Operative Interpretation of Judicial Review: Social Practice and the Administrative Court"s Caseload I. The (In)Significance of The Administrative Court"s Caseload? II. No Longer An "Asylum and Immigration Court with Knobs On"21 III. Types of Administrative Court Claim IV. The Tribunalisation of Judicial Review V. Administrative Court Ajrs and Individual Grievances: Specific Topics VI. The Permission Lottery VII. An Operative Interpretation of Administrative Court Judicial Review 5 An Operative Interpretation of Judicial Review: Community Justice I. Common Law Community Justice and "Regionalisation" II. Community-Based Public Law III. Legal Specialisation and The Purposes of Judicial Review IV. Claimants In AJRs: Judicial Review as Community Justice? V. Litigants in Person VI. Defendants VII. An Operative Interpretation of Judicial Review as Community Justice VIII. The Advancement of Justice and Good Governance 6 An Operative Taxonomy of Grounds of Review: Part One I. Methodology II. The "Grammar" of Judicial Review15 III. Ground One: Procedural Impropriety IV. Ground Two: Mistake V. Ground Three: Ordinary Common Law Statutory Interpretation 7 An Operative Taxonomy of Grounds of Review: Part Two I. Ground Four: Discretionary Impropriety1 (Relevant/Irrelevant Considerations, Lack of Justification) II. Ground Five: Breach of ECHR Protected Rights and Equality Duties III. Ground Six: Significant Claims (Common Law Constitutional Values, Rights or Allocation of Powers, and Public Interest Claims) 8 A Target Interpretation of Judicial Review and Judicial Rationality I. Individualised Justice and Contextualism II. The "Rainbow of Review" III. Variable Intensity Factors IV. A Different Order of Factors, Bifurcated or Trifurcated Review V. Uncertainty VI. Balance VII. An "Organic" Approach To Rationality 9 Judicial Review for the Advancement of Justice and Good Governance I. Organic Rationality II. Organic Rationality, "Counterpoint" and Case Law III. Judicial Review For The Advancement of Justice and Good Governance BIBLIOGRAPHY Index