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Vol 21 No 11 Nov/Dec 2016

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Judicial Review and the Constitution

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Edited by: Christopher Forsyth

ISBN13: 9781841131054
ISBN: 1841131059
Published: May 2000
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £72.00



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The publisher will print a copy to fulfill your order. Books can take between 1 to 3 weeks. Looseleaf titles between 1 to 2 weeks.

This collection of essays presents opposing sides of the debate over the foundations of judicial review. In this work, however, the discussion of whether the ultra vires doctrine is best characterized as a central principle of administrative law or as a harmless, justificatory fiction is located in the topical and political context of constitutional change.

The jurisprudential analysis of the relative merits of models of legislative intention and judicial creativity provides a sound base for consideration of the constitutional problems arising out of legislative devolution and the Human Rights Act 1998. As the historical orthodoxy is challenged by growing institutional independence, leading figures in the field offer competing perspectives on the future of judicial review.

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Subjects:
Constitutional and Administrative Law, Judicial Review
Contents:
Part 1 The debate begins: is the ultra vires rule the basis of judicial review?, Professor Dawn Oliver - sources of power, institutions, functions, conclusions
of fig leaves and fairy tales - the ultra vires doctrine, the sovereignty of parliament and judicial review, Christopher Forsyth - introduction, judicial review and the exercise of non-legal powers by non-statutory bodies, "weak" and "strong" criticism of the ultra vires doctrine, the response to "weak" criticism, reconciling the "weak" criticism with orthodoxy, the utility of fig-leaves and fairy tales, the response to "strong" criticism, conclusions
ultra vires and the foundations of judicial review, Professor Paul Craig FBA - the criticism of the ultra vires doctrine, the defence of the ultra vires principles - the dangers of its abandonment, the defence of the ultra vires principle - meeting the objections, the foundations of judicial review, conclusion
illegality - the problem of jurisdiction, Lord Justice Laws - R v Hull University ex p Page
the ultra vires doctrine in a constitutional setting - still the central principle of administrative law, Mark Elliott - introduction, the importance of justifying judicial review, the relationship between legislative intention and judicial review, a constitutional setting for the ultra vires doctrine - overcoming the shortcomings of the traditional model, conclusion.
Part 2 The jurisprudential debate: ultra vires and institutional interdependence, Nicholas Bamforth - criteria for assessing the merits of a legal theory, ultra vires as the constitutional foundation of judicial review, institutional interdependence and Hart's rule of recognition, an analogy - parliamentary privilege, conclusion - making explicit the basis of judicial review
form and substance in the rule of law - a democratic justification for judicial review, Professor David Dyzenhaus - introduction, procedure and substance in practical theory, positivism, judicial review and the rule of law, substance and judicial supremacist, the pleasing persistence of process based theories
judicial review and the meaning of law - Lord Justice Laws - introductory, the common law, philosophy, positivism, the nature of principle, the rule of law, parliament and the judges.
Part 3 Constitutional reform and the foundations of judicial review: the foundations of review, devolved power and delegated power, Professor Brigid Hadfield - general introduction, the realities, devolution - the mechanics, conclusions
the courts, devolution and judicial review, Professor Paul Craig FBA and Mark Walters - Wales, executive devolution and the assignment of limited competence, judicial challenge to the competence of the assembly, Scotland, legislative devolution and the demarcation of legislative competence, political challenge to the competence of the Scottish parliament, judicial challenge to the competence of the Scottish parliament, judicial determination of legislative competence. (Part Contents).