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The Constitutional Foundations of Judicial Review

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ISBN13: 9781841131801
ISBN: 1841131806
Published: March 2001
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £67.00



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Recent years have witnessed a vibrant debate concerning the constitutional basis of judicial review, which reflects a broader discourse about the role of the courts, and their relationship with the other institutions of government, within the constitutional order. This work analyzes the foundations of judicial review. It subjects the traditional justification, based on the doctrine of ultra vires, to critical scrutiny and fundamental reformulation, and it addresses the theoretical challenges posed by the impact of the Human Rights Act 1998 on administrative law and by the extension of judicial review to prerogative and non-statutory powers. It also explores the relationship between the theoretical basis of administrative law and its practical capacity to safeguard individuals against mal-administration. The book seeks to develop a constitutional rationale for judicial review which founds its legitimacy in core principles such as the rule of law, the separation of powers and the sovereignty of Parliament. It presents a detailed analysis of the interface between constitutional and administrative law, and should be of interest to all public lawyers.

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Subjects:
Judicial Review
Contents:
Part 1 Justifying judicial review: the rise of judicial review; the challenge -justifying judicial review; the notion of constitutional legitimacy; the importance of examining constitutional legitimacy; conclusion.
Part 2 The traditional ultra vires principle: structural coherence and internal coherence; the artificiality of the ultra vires principle; passive artificiality; active artificiality; the emptiness of the ultra vires principle; the radical and the moderate.
Part 3 Legislative frameworks and the control of discretionary power: the constitutional status of legislative intention; legislation and the scope of discretionary power; conclusion.
Part 4 The modified ultra vires principle: judicial review and the rule of law; ultra vires methodology in a constitutional setting; the modified ultra vires principle - overcoming the deficiencies of the traditional model; the advantages of the modified ultra vires principle over the common law theory of review; conclusion.
Part 5 Beyond the logical boundary? judicial review of non-statutory power: the sources of governmental power; judicial review of prerogative power; judicial review of de facto governmental power; conclusion.
Part 6 Judicial review and human rights: human rights in the United Kingdom; the constitutional foundations of human rights review; the legal basis of human rights review; conclusion.
Part 7 The constitutional foundations of judicial review: constitutional justification and normative justification; a context-sensitive approach to constitutional justification; impetus and implementation; conclusion.