Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1940894
Kenny Chng
1. Policies are an indispensable feature of administrative governance. By providing default guidelines for decision-making, policies streamline the everyday administrative work of public authorities, helping to manage the gargantuan task of keeping the machinery of the modern administrative state running smoothly. This article will analyse an issue in the law regulating the usage of administrative policies that has received little attention to date – the connection between the unlawfulness of a policy in itself and the unlawfulness of a decision made pursuant to such a policy. This article will highlight that there is a degree of analytical ambiguity in this area of law, and will propose two suggestions to address the issue. By way of methodology, the article will draw primarily from UK case law. Where relevant, the article will also refer to material from other common law jurisdictions.
{"title":"The Connection Between Policies and Decisions Made Pursuant to Policies","authors":"Kenny Chng","doi":"10.1080/10854681.2021.1940894","DOIUrl":"https://doi.org/10.1080/10854681.2021.1940894","url":null,"abstract":"1. Policies are an indispensable feature of administrative governance. By providing default guidelines for decision-making, policies streamline the everyday administrative work of public authorities, helping to manage the gargantuan task of keeping the machinery of the modern administrative state running smoothly. This article will analyse an issue in the law regulating the usage of administrative policies that has received little attention to date – the connection between the unlawfulness of a policy in itself and the unlawfulness of a decision made pursuant to such a policy. This article will highlight that there is a degree of analytical ambiguity in this area of law, and will propose two suggestions to address the issue. By way of methodology, the article will draw primarily from UK case law. Where relevant, the article will also refer to material from other common law jurisdictions.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134388051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1930360
J. Bell
1. What sorts of contributions can, and should, legal scholarship make to understanding of public law? This is a question that has generated a considerable body of thoughtful literature and at times lively debate among scholars in the UK and elsewhere. In this analysis I consider the question in light of a series of significant articles published in 2020. In addition to showcasing, in what I hope is an accessible and informative way, an array of exciting academic offerings, I show two things.
{"title":"Significant Academic Articles in 2020: Five Contributions to Understanding and the Growing Plea for More Imaginative Study of Judicial Review","authors":"J. Bell","doi":"10.1080/10854681.2021.1930360","DOIUrl":"https://doi.org/10.1080/10854681.2021.1930360","url":null,"abstract":"1. What sorts of contributions can, and should, legal scholarship make to understanding of public law? This is a question that has generated a considerable body of thoughtful literature and at times lively debate among scholars in the UK and elsewhere. In this analysis I consider the question in light of a series of significant articles published in 2020. In addition to showcasing, in what I hope is an accessible and informative way, an array of exciting academic offerings, I show two things.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130157563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1878717
P. Sales
In this article I ask whether appellate courts are at risk of making a wrong turn in their approach to reviewing proportionality assessments by first instance courts. Lines of authority are divergi...
{"title":"Proportionality Review in Appellate Courts","authors":"P. Sales","doi":"10.1080/10854681.2021.1878717","DOIUrl":"https://doi.org/10.1080/10854681.2021.1878717","url":null,"abstract":"In this article I ask whether appellate courts are at risk of making a wrong turn in their approach to reviewing proportionality assessments by first instance courts. Lines of authority are divergi...","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131413468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1888514
C. Monaghan
1. The long-running Chagos litigation has now entered into its third decade with the Court of Appeal’s decision in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs. The appeal was brought by Ms Solange Hoareau and Mr Louis Olivier Bancoult to challenge the Divisional Court’s earlier judgment. The appeal concerns a decision taken at the very highest level of government in 2016, which was to refuse to support the resettlement of the Chagossians to the British Indian Ocean Territory (‘the BIOT’). The Chagossians had originally been the inhabitants of the BIOT and many still wish to return to the outer islands of the Chagos Archipelago. Rather than supporting resettlement, the UK government offered the Chagossians about £40 million in compensation over the course of 10 years. The appeal was heard in May 2020 by Sir Terence Etherton MR, Green LJ and Dingemans LJ, and judgment was handed down on 30 July 2020.
1. 随着上诉法院在R (Hoareau and Bancoult)诉外交和联邦事务大臣一案中作出裁决，旷日持久的查戈斯群岛诉讼现已进入第三个十年。索兰吉·霍罗女士和路易斯·奥利维尔·班库尔先生提出上诉，对地方法院早些时候的判决提出质疑。该呼吁涉及2016年政府最高层作出的一项决定，即拒绝支持将查戈斯人重新安置到英属印度洋领土(“BIOT”)。查戈斯人最初是BIOT的居民，许多人仍然希望回到查戈斯群岛的外岛。英国政府没有支持重新安置，而是向查戈斯人提供了大约4000万英镑的赔偿金，为期10年。上诉于2020年5月由Terence Etherton先生，Green LJ和Dingemans LJ听取，并于2020年7月30日作出判决。
{"title":"Challenging the United Kingdom's Decision not to Support the Resettlement of the Chagos Islands: R (on the application of Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010","authors":"C. Monaghan","doi":"10.1080/10854681.2021.1888514","DOIUrl":"https://doi.org/10.1080/10854681.2021.1888514","url":null,"abstract":"1. The long-running Chagos litigation has now entered into its third decade with the Court of Appeal’s decision in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs. The appeal was brought by Ms Solange Hoareau and Mr Louis Olivier Bancoult to challenge the Divisional Court’s earlier judgment. The appeal concerns a decision taken at the very highest level of government in 2016, which was to refuse to support the resettlement of the Chagossians to the British Indian Ocean Territory (‘the BIOT’). The Chagossians had originally been the inhabitants of the BIOT and many still wish to return to the outer islands of the Chagos Archipelago. Rather than supporting resettlement, the UK government offered the Chagossians about £40 million in compensation over the course of 10 years. The appeal was heard in May 2020 by Sir Terence Etherton MR, Green LJ and Dingemans LJ, and judgment was handed down on 30 July 2020.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121842483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1929676
James E. Hurford
1. The right to obtain abortion remains one of the more divisive ethical topics. Vast differences in opinion exist about the morality of abortion. Consider, for example, the chasm that exists between the position of the Catholic Church that life is sacred and must be defended from conception, and the – admittedly fringe – view that even birth does not make a baby a person. It is unquestionably a subject on which ‘strong moral and religious convictions are held’.
{"title":"A Matter of Individual Thought and Conscience? Grimmark v Sweden, and Strasbourg’s Approach to Conscientious Objection in Abortion Procedures","authors":"James E. Hurford","doi":"10.1080/10854681.2021.1929676","DOIUrl":"https://doi.org/10.1080/10854681.2021.1929676","url":null,"abstract":"1. The right to obtain abortion remains one of the more divisive ethical topics. Vast differences in opinion exist about the morality of abortion. Consider, for example, the chasm that exists between the position of the Catholic Church that life is sacred and must be defended from conception, and the – admittedly fringe – view that even birth does not make a baby a person. It is unquestionably a subject on which ‘strong moral and religious convictions are held’.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122284499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/10854681.2021.1940879
Joseph L. Thomas
2. In this article, previous examples of the courts marking their disapproval are summarised. Against that backdrop four cases from 2020 are considered as well as Swift J’s suggestions for clarifying the Pt 54 Practice Directions. Consideration is given then to the possible sanctions, such as adverse costs orders, that may address these issues and whether there is straightforward solution to discouraging a lax attitude which does not risk unfairness or which is workable in every situation. Finally, an assessment is made that concludes that there is a real risk that the courts’ disapproval may fall more frequently on claimants’ and defendants’ representatives in the form of referrals if the courts continue to feel that cases are not brought with sufficient procedural rigour and care.
{"title":"The Need for Procedural Rigour in Judicial Review Cases","authors":"Joseph L. Thomas","doi":"10.1080/10854681.2021.1940879","DOIUrl":"https://doi.org/10.1080/10854681.2021.1940879","url":null,"abstract":"2. In this article, previous examples of the courts marking their disapproval are summarised. Against that backdrop four cases from 2020 are considered as well as Swift J’s suggestions for clarifying the Pt 54 Practice Directions. Consideration is given then to the possible sanctions, such as adverse costs orders, that may address these issues and whether there is straightforward solution to discouraging a lax attitude which does not risk unfairness or which is workable in every situation. Finally, an assessment is made that concludes that there is a real risk that the courts’ disapproval may fall more frequently on claimants’ and defendants’ representatives in the form of referrals if the courts continue to feel that cases are not brought with sufficient procedural rigour and care.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125245246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-09DOI: 10.1017/9781108870184.021
Shailendra Kumar
Article 142 of the Constitution of India reads: Thus, article 142 vests the Supreme Court of India with a repository of discretionary power that can be wielded in appropriate circumstances to deliver ‘complete justice’ in a given case. It is pertinent to mention here that no other constitution in the world contains similar provisions except for two very recent constitutions, that is, Bangladesh (article 104) and Nepal (article 88[2]), both of which seem to have borrowed the provisions from the Constitution of India. The term ‘complete justice’ is comprised of two words, that is, ‘complete’ and ‘justice’. The Merriam-Webster Dictionary defines ‘complete’ as ‘having all necessary parts, elements, or steps or thorough or concluded’, whereas ‘Justice’ has been understood and defined by various scholars, philosophers, and social scientists in various ways and connotations. Plato defines it thus: ‘Justice is a proper, harmonious relationship between the warring parts of the person or city’. Hobbes and Rousseau understand ‘Justice’ as a process of giving and protecting the rights and liberties of a person.
{"title":"Sketching the Limits of Article 142 of the Constitution of India: A Constitutional Necessity","authors":"Shailendra Kumar","doi":"10.1017/9781108870184.021","DOIUrl":"https://doi.org/10.1017/9781108870184.021","url":null,"abstract":"Article 142 of the Constitution of India reads: \u0000 \u0000Thus, article 142 vests the Supreme Court of India with a repository of discretionary power that can be wielded in appropriate circumstances to deliver ‘complete justice’ in a given case. It is pertinent to mention here that no other constitution in the world contains similar provisions except for two very recent constitutions, that is, Bangladesh (article 104) and Nepal (article 88[2]), both of which seem to have borrowed the provisions from the Constitution of India. \u0000 \u0000The term ‘complete justice’ is comprised of two words, that is, ‘complete’ and ‘justice’. The Merriam-Webster Dictionary defines ‘complete’ as ‘having all necessary parts, elements, or steps or thorough or concluded’, whereas ‘Justice’ has been understood and defined by various scholars, philosophers, and social scientists in various ways and connotations. Plato defines it thus: ‘Justice is a proper, harmonious relationship between the warring parts of the person or city’. Hobbes and Rousseau understand ‘Justice’ as a process of giving and protecting the rights and liberties of a person.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"816 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128516027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-01DOI: 10.1080/10854681.2020.1888513
M. Clarke
1. This case note examines the important recent ruling of the Court of Justice of the European Union (CJEU) in Revenue and Customs Commissioners v Dakneviciute. This ruling held that Art. 49 of the TFEU, which prohibits restriction to the freedom of establishment, must be interpreted as meaning that ‘a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains her self-employed status’. This ruling has wide-ranging ramifications with respect to the right to reside of self-employed female EU nationals who are pregnant or have newly born babies, which will be evaluated in this article.
{"title":"Extending the St Prix Principle to Self-employed EU Workers","authors":"M. Clarke","doi":"10.1080/10854681.2020.1888513","DOIUrl":"https://doi.org/10.1080/10854681.2020.1888513","url":null,"abstract":"1. This case note examines the important recent ruling of the Court of Justice of the European Union (CJEU) in Revenue and Customs Commissioners v Dakneviciute. This ruling held that Art. 49 of the TFEU, which prohibits restriction to the freedom of establishment, must be interpreted as meaning that ‘a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains her self-employed status’. This ruling has wide-ranging ramifications with respect to the right to reside of self-employed female EU nationals who are pregnant or have newly born babies, which will be evaluated in this article.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"41 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114022039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-01DOI: 10.1080/10854681.2020.1888515
G. Watt
1. On 28 August 2019, the Queen in Council made an Order proroguing Parliament from, at the earliest, 9 September until 14 October. Concerned that the prorogation was devised to prevent any attempt in Parliament to amend the date on which the UK would leave the EU, two distinct groups of litigants commenced proceedings in Edinburgh and London to have the prorogation overturned. The Court of Session ultimately found for the petitioners, but a three-judge Divisional Court of the Queen’s Bench Division in London could not be persuaded to make the sought-after order.
{"title":"Constitutional Innovation in the Supreme Court","authors":"G. Watt","doi":"10.1080/10854681.2020.1888515","DOIUrl":"https://doi.org/10.1080/10854681.2020.1888515","url":null,"abstract":"1. On 28 August 2019, the Queen in Council made an Order proroguing Parliament from, at the earliest, 9 September until 14 October. Concerned that the prorogation was devised to prevent any attempt in Parliament to amend the date on which the UK would leave the EU, two distinct groups of litigants commenced proceedings in Edinburgh and London to have the prorogation overturned. The Court of Session ultimately found for the petitioners, but a three-judge Divisional Court of the Queen’s Bench Division in London could not be persuaded to make the sought-after order.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129173731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-01DOI: 10.1080/10854681.2020.1871714
Abe Chauhan
1. The UK is moving towards a system of governance by algorithm. Public authorities at the national and local levels are replacing human decision-makers with algorithmic tools that deconstruct complex issues of policy “into neatly defined, structured and well-scoped problems that can be solved [mathematically]”. This technological overhaul of public administration is forecast to bring more efficient governance, reducing costs and delays, while also removing human error and increasing transparency and consistency. However, far from neutral and infallible mathematical tools, algorithms are products of human creation which can be impressed with tendencies towards bias and error andwhich can evade proper scrutiny because of technical features, proprietary interests, or issues of scale. The emergence of a digital technocratic state consequently raises a number of challenges for upholding the rule of law and principles of good governance.
{"title":"Towards the Systemic Review of Automated Decision-Making Systems","authors":"Abe Chauhan","doi":"10.1080/10854681.2020.1871714","DOIUrl":"https://doi.org/10.1080/10854681.2020.1871714","url":null,"abstract":"1. The UK is moving towards a system of governance by algorithm. Public authorities at the national and local levels are replacing human decision-makers with algorithmic tools that deconstruct complex issues of policy “into neatly defined, structured and well-scoped problems that can be solved [mathematically]”. This technological overhaul of public administration is forecast to bring more efficient governance, reducing costs and delays, while also removing human error and increasing transparency and consistency. However, far from neutral and infallible mathematical tools, algorithms are products of human creation which can be impressed with tendencies towards bias and error andwhich can evade proper scrutiny because of technical features, proprietary interests, or issues of scale. The emergence of a digital technocratic state consequently raises a number of challenges for upholding the rule of law and principles of good governance.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121371265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：