International Influences on English Judicial Review and Implications for the Exportability of English Law

Abstract

This chapter considers the scope of dualism, in the context of administrative law, in the English legal system and common law world. It notes that there is no unitary account of the dualist principle in the common law; this too represents a spectrum of possibilities, from autochthonous leanings (Sri Lanka and Singapore) to legal cosmopolitanism (South Africa and India). It suggests that a number of factors will ultimately shape the extent to which dualism is adhered to: constitutional foundations of judicial review; state identity and historical human rights legacies (or abuses); cultural relativism; geopolitical imperatives to engage with an international regime; the scope and intensity of existing principles of judicial review to which such norm will be ‘received’; and the extent of international regime control over national legal systems. It suggests that a rich comparative conversation is ongoing as to the proper scope and purpose of the dualist principle in common law judicial review. In turn, it shows that the English approach to dualism in judicial review, illustrated in Brind, has garnered both opponents and supporters in other common law jurisdictions; in some instances, it has been ‘exported’, but at the very least it has fostered a rich comparative dialogue and competing approaches in cases such as Teoh and Tavita. At the same time, this chapter argues that the English courts can benefit from ‘importing’ more progressive approaches to unincorporated norms but that the indigenous turn in rights discourse may lead to an English assertion of normative autonomy from attempts at securing progressive convergence on the dualist question.