Pub Date : 2022-01-02DOI: 10.1080/10854681.2022.2084950
James E. Hurford
{"title":"‘ … Yet a Duty is a Duty, Though he be Alone.’ Should There be a Specialist Decision Maker to Determine Issues Relating to the Right to Conscientious Objection Under the Abortion Act 1967?","authors":"James E. Hurford","doi":"10.1080/10854681.2022.2084950","DOIUrl":"https://doi.org/10.1080/10854681.2022.2084950","url":null,"abstract":"","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128322758","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 : 2022-01-02DOI: 10.1080/10854681.2022.2077587
Jonathan Hall
{"title":"The Role of the Independent Reviewer of Terrorism Legislation","authors":"Jonathan Hall","doi":"10.1080/10854681.2022.2077587","DOIUrl":"https://doi.org/10.1080/10854681.2022.2077587","url":null,"abstract":"","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130732825","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 : 2022-01-02DOI: 10.1080/10854681.2022.2087361
K. Wong
1. At the height of the pro-democracy protests in November 2019, Hong Kong witnessed a historic turnout of 71.23%, amongst more than four million eligible voters, in the District Councils elections, in a de facto referendum on the legitimacy or otherwise of the Beijing and Hong Kong Governments. The pro-Beijing camp suffered what many considered a humiliating defeat, winning only 62 seats out of the 452 that were directly elected. Whilst commanding overwhelming public support, many of the newly elected pro-democracy District Councillors had been first-time candidates all but completely new to electoral politics, and understandably unfamiliar with the elaborate regime of election laws in Hong Kong. Pro-Beijing politicians have, no doubt also understandably, been keen to seize on procedural irregularities in their opponents’ campaigns and challenge their seats by way of election petitions, which are invariably assigned to the Constitutional and Administrative Law List of the High Court of Hong Kong.
{"title":"Hong Kong Electoral Law with English Roots: Rethinking The Simplistic Approach to Relief from Penalty for Excusable Illegal Conduct in Lam Pok v Lee Hin Long [2021] HKCFI 779","authors":"K. Wong","doi":"10.1080/10854681.2022.2087361","DOIUrl":"https://doi.org/10.1080/10854681.2022.2087361","url":null,"abstract":"1. At the height of the pro-democracy protests in November 2019, Hong Kong witnessed a historic turnout of 71.23%, amongst more than four million eligible voters, in the District Councils elections, in a de facto referendum on the legitimacy or otherwise of the Beijing and Hong Kong Governments. The pro-Beijing camp suffered what many considered a humiliating defeat, winning only 62 seats out of the 452 that were directly elected. Whilst commanding overwhelming public support, many of the newly elected pro-democracy District Councillors had been first-time candidates all but completely new to electoral politics, and understandably unfamiliar with the elaborate regime of election laws in Hong Kong. Pro-Beijing politicians have, no doubt also understandably, been keen to seize on procedural irregularities in their opponents’ campaigns and challenge their seats by way of election petitions, which are invariably assigned to the Constitutional and Administrative Law List of the High Court of Hong Kong.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123189910","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 : 2022-01-02DOI: 10.1080/10854681.2022.2063661
Georgina Fenton
2. In Fratila, the claimants – two Romanian nationals living in the UK with pre-settled status (PSS) granted under the EU Settlement Scheme – had their applications for Universal Credit (UC) refused on the basis that they did not have a qualifying right to reside. This is because the amendment the 2019 Regulations made to the Universal Credit Regulations 2013 (‘the 2013 Regulations’) – specifically the addition of reg 9 (3)(d)(i) – prevents leave to remain in the UK arising from PSS from constituting a qualifying right of residence for the purposes of UC applications.
{"title":"Fratila and another v SSWP [2021] UKSC 53","authors":"Georgina Fenton","doi":"10.1080/10854681.2022.2063661","DOIUrl":"https://doi.org/10.1080/10854681.2022.2063661","url":null,"abstract":"2. In Fratila, the claimants – two Romanian nationals living in the UK with pre-settled status (PSS) granted under the EU Settlement Scheme – had their applications for Universal Credit (UC) refused on the basis that they did not have a qualifying right to reside. This is because the amendment the 2019 Regulations made to the Universal Credit Regulations 2013 (‘the 2013 Regulations’) – specifically the addition of reg 9 (3)(d)(i) – prevents leave to remain in the UK arising from PSS from constituting a qualifying right of residence for the purposes of UC applications.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122464859","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 : 2021-10-02DOI: 10.1080/10854681.2021.2037277
Robert Thomas, Joe Tomlinson
1. It is axiomatic that costs rules in civil litigation can anddo shape access to legal processes. Indeed, when costs rules are being drafted this idea – the ‘deterrence effect’ – is often a rationale for drafting rules in a certain way. The costs rules in judicial review have been a particularly vexed subject in recent years. There is a widespread view that the current cost rules are a contributing factor to an access crisis in this part of the justice system, although the Government certainly does not share this outlook. Rather, it is more concerned that public money is too often being spent on public bodies defending weak cases that get in the way of efficient public administration. This tension is placed under further strain by both the constitutional position of the judicial review process (supporting claims that access to this process is of particular systemic importance visà-vis the constitutional right of access to justice) and the persistent issue of a lack of robust and comprehensive data on costs against which policy claims can be tested.
{"title":"Certainty at all Costs? A Critical Analysis of the Proposed Introduction of Fixed Recoverable Costs in Immigration Judicial Reviews","authors":"Robert Thomas, Joe Tomlinson","doi":"10.1080/10854681.2021.2037277","DOIUrl":"https://doi.org/10.1080/10854681.2021.2037277","url":null,"abstract":"1. It is axiomatic that costs rules in civil litigation can anddo shape access to legal processes. Indeed, when costs rules are being drafted this idea – the ‘deterrence effect’ – is often a rationale for drafting rules in a certain way. The costs rules in judicial review have been a particularly vexed subject in recent years. There is a widespread view that the current cost rules are a contributing factor to an access crisis in this part of the justice system, although the Government certainly does not share this outlook. Rather, it is more concerned that public money is too often being spent on public bodies defending weak cases that get in the way of efficient public administration. This tension is placed under further strain by both the constitutional position of the judicial review process (supporting claims that access to this process is of particular systemic importance visà-vis the constitutional right of access to justice) and the persistent issue of a lack of robust and comprehensive data on costs against which policy claims can be tested.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"10 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114095957","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 : 2021-10-02DOI: 10.1080/10854681.2021.2016295
NicholasRex Kilford
1. Since the ‘process’ of contemporary devolution first began in 1998 three issues have often given lawyers, academics and critics food for thought. The first issue is external to the settlement: the relationship between devolution and parliamentary sovereignty. The ability of either to survive the existence of the other has been a central question for the discourse, with both sovereignty and devolution potentially posing a deathknell for the other. The second issue is internal to the settlement – the tension between, on the one hand, the immensely technical nature of the devolution statutes themselves and, on the other, their profound constitutional significance. The former has sometimes served to obscure the latter from view. It would be curious, however, given that ‘[t]he carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey’, for the technicalities of the Scotland Act 1998 to stand in the way of its constitutional ‘message’. The third issue is how best to make sense of that message, and to situate it within the constitution more generally. However, it is probably fair to say that the constitutional significance of the settlement itself is, unlike in its earlier years, no longer uncertain. Few would contend now that the devolved legislatures deserve comparisons with an English parish council. Curial attestations of the constitutional value of the devolved legislatures abound, a value which is predicated by their democratic credentials and reinforced in Scotland and Wales by legislative declarations of
{"title":"Limitation, Empowerment and the Value of Legal Certainty in the Treaty Incorporation References Case","authors":"NicholasRex Kilford","doi":"10.1080/10854681.2021.2016295","DOIUrl":"https://doi.org/10.1080/10854681.2021.2016295","url":null,"abstract":"1. Since the ‘process’ of contemporary devolution first began in 1998 three issues have often given lawyers, academics and critics food for thought. The first issue is external to the settlement: the relationship between devolution and parliamentary sovereignty. The ability of either to survive the existence of the other has been a central question for the discourse, with both sovereignty and devolution potentially posing a deathknell for the other. The second issue is internal to the settlement – the tension between, on the one hand, the immensely technical nature of the devolution statutes themselves and, on the other, their profound constitutional significance. The former has sometimes served to obscure the latter from view. It would be curious, however, given that ‘[t]he carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey’, for the technicalities of the Scotland Act 1998 to stand in the way of its constitutional ‘message’. The third issue is how best to make sense of that message, and to situate it within the constitution more generally. However, it is probably fair to say that the constitutional significance of the settlement itself is, unlike in its earlier years, no longer uncertain. Few would contend now that the devolved legislatures deserve comparisons with an English parish council. Curial attestations of the constitutional value of the devolved legislatures abound, a value which is predicated by their democratic credentials and reinforced in Scotland and Wales by legislative declarations of","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"160 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127698255","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 : 2021-10-02DOI: 10.1080/10854681.2021.2058198
Edward Lui
ordinary principles judicial review many the courts fi ne themselves to a review of the lawfulness of administrative decision-making, rather than an appeal against its substantive merits. Irrationality and Wednesbury unreasonable-ness are stern tests. They are by no means satis fi ed merely because the court thinks that it would have reached a di ff erent decision … By contrast, where procedural unfairness is alleged, the court is the fi nal arbiter of what is, or is not, fair. This is because a decision made by a process which is in fact procedurally unfair is for that very reason unlawful. Thus it is necessary for the court to be satis fi ed that an allegation of unfairness falls squarely within the true boundaries of procedural unfairness, if its dominion over the answer to the unfairness question is not to lead it into an inappropriate role as the fi nal arbiter of an appeal on the merits of administrative action .
{"title":"Procedural Fairness in the Privy Council: Themes and Reflections","authors":"Edward Lui","doi":"10.1080/10854681.2021.2058198","DOIUrl":"https://doi.org/10.1080/10854681.2021.2058198","url":null,"abstract":"ordinary principles judicial review many the courts fi ne themselves to a review of the lawfulness of administrative decision-making, rather than an appeal against its substantive merits. Irrationality and Wednesbury unreasonable-ness are stern tests. They are by no means satis fi ed merely because the court thinks that it would have reached a di ff erent decision … By contrast, where procedural unfairness is alleged, the court is the fi nal arbiter of what is, or is not, fair. This is because a decision made by a process which is in fact procedurally unfair is for that very reason unlawful. Thus it is necessary for the court to be satis fi ed that an allegation of unfairness falls squarely within the true boundaries of procedural unfairness, if its dominion over the answer to the unfairness question is not to lead it into an inappropriate role as the fi nal arbiter of an appeal on the merits of administrative action .","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131163320","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 : 2021-10-02DOI: 10.1080/10854681.2021.2034349
A. Vaughan, Michael Spencer
1. In two recent judgments the Supreme Court has grappled with the concept of nullity in public law. TN (Vietnam) v Secretary of State for the Home Department concerned whether a tribunal decision, which was taken pursuant to inherently unfair and ultra vires procedure rules, was for that reason a nullity. In Majera v Secretary of State for the Home Department the Court considered whether the Home Office could lawfully act in a manner which was inconsistent with a defective tribunal bail order, without first obtaining variation, setting aside or quashing of the order. The Supreme Court answered both questions in the negative. In doing so, it has reaffirmed and clarified certain fundamental principles in relation to the concept of nullity and invalidity in public law.
{"title":"Nullity in Public Law: Two Recent Supreme Court Judgments","authors":"A. Vaughan, Michael Spencer","doi":"10.1080/10854681.2021.2034349","DOIUrl":"https://doi.org/10.1080/10854681.2021.2034349","url":null,"abstract":"1. In two recent judgments the Supreme Court has grappled with the concept of nullity in public law. TN (Vietnam) v Secretary of State for the Home Department concerned whether a tribunal decision, which was taken pursuant to inherently unfair and ultra vires procedure rules, was for that reason a nullity. In Majera v Secretary of State for the Home Department the Court considered whether the Home Office could lawfully act in a manner which was inconsistent with a defective tribunal bail order, without first obtaining variation, setting aside or quashing of the order. The Supreme Court answered both questions in the negative. In doing so, it has reaffirmed and clarified certain fundamental principles in relation to the concept of nullity and invalidity in public law.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133970931","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 : 2021-10-02DOI: 10.1080/10854681.2021.2030949
James E. Hurford
1. In one of history’s most notorious legal proceedings, the judge – an obscure Roman official in a backwater Imperial province – was moved to ask, ‘What is truth?’ One suspects a bureaucratic figure like Pontius Pilate never received an answer that would have satisfied him; however, the quest for truth – and humanity’s right and obligation to seek it – has occupied the species in subsequent centuries.
{"title":"‘Worthy of Respect in a Democratic Society’? Forstater and the Expression of Controversial Beliefs","authors":"James E. Hurford","doi":"10.1080/10854681.2021.2030949","DOIUrl":"https://doi.org/10.1080/10854681.2021.2030949","url":null,"abstract":"1. In one of history’s most notorious legal proceedings, the judge – an obscure Roman official in a backwater Imperial province – was moved to ask, ‘What is truth?’ One suspects a bureaucratic figure like Pontius Pilate never received an answer that would have satisfied him; however, the quest for truth – and humanity’s right and obligation to seek it – has occupied the species in subsequent centuries.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132586658","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 : 2021-10-02DOI: 10.1080/10854681.2021.2057719
Guy Baldwin
Restrictions imposed by governments in response to the spread of the novel coronavirus SARS-CoV-2 have presented a human rights challenge around the world. The difficulty of balancing public health against human rights has been particularly acute in relation to freedom of religion, as measures limiting attendance at places of worship or requiring their temporary closure have been challenged in the courts. This article analyses judicial decisions in the US and UK that have considered the lawfulness of restrictions on places of worship. Although the legal approaches to assessing violations of freedom of religion in the US and UK are different, both approaches have led to the similar result of courts taking issue with the imposition of certain public health restrictions on places of worship. In the US, where the current, albeit controversial, understanding of the requirements of the Free Exercise Clause of the First Amendment invites attention to the neutrality and general applicability of a law, the Supreme Court initially declined to grant injunctive relief against coronavirus restrictions on places of worship, before reversing course in Roman Catholic Diocese v Cuomo. In the UK, assessing the question under art 9 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998, the Outer House of the Court of Session in Philip found that Scottish coronavirus restrictions were not proportionate to their legitimate end. This article argues that these decisions exhibit a number of problems, and the preferable view is that restrictions on religious practice to save lives in a pandemic can be legally justified on a temporary basis.
{"title":"The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom","authors":"Guy Baldwin","doi":"10.1080/10854681.2021.2057719","DOIUrl":"https://doi.org/10.1080/10854681.2021.2057719","url":null,"abstract":"Restrictions imposed by governments in response to the spread of the novel coronavirus SARS-CoV-2 have presented a human rights challenge around the world. The difficulty of balancing public health against human rights has been particularly acute in relation to freedom of religion, as measures limiting attendance at places of worship or requiring their temporary closure have been challenged in the courts. This article analyses judicial decisions in the US and UK that have considered the lawfulness of restrictions on places of worship. Although the legal approaches to assessing violations of freedom of religion in the US and UK are different, both approaches have led to the similar result of courts taking issue with the imposition of certain public health restrictions on places of worship. In the US, where the current, albeit controversial, understanding of the requirements of the Free Exercise Clause of the First Amendment invites attention to the neutrality and general applicability of a law, the Supreme Court initially declined to grant injunctive relief against coronavirus restrictions on places of worship, before reversing course in Roman Catholic Diocese v Cuomo. In the UK, assessing the question under art 9 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998, the Outer House of the Court of Session in Philip found that Scottish coronavirus restrictions were not proportionate to their legitimate end. This article argues that these decisions exhibit a number of problems, and the preferable view is that restrictions on religious practice to save lives in a pandemic can be legally justified on a temporary basis.","PeriodicalId":232228,"journal":{"name":"Judicial Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116795563","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：