Reconstructing Judicial Review by Sarah Nason
Reconstructing Judicial Review
Reconstructing Judicial Review by Sarah Nason proposes a new interpretation of judicial review in England and Wales, one that emphasises the development of justice and good governance rather than ultra vires or common law constitutionalism. It is based on an examination of the functions and ideals that judicial review should serve, as well as an examination of empirical'social' facts regarding judicial review, particularly as experienced in the Administrative Court. It creates a new taxonomy of judicial review grounds based on in-depth case law analysis: mistake, procedural impropriety, ordinary common law statutory interpretation, discretionary impropriety, relevant/irrelevant considerations, violation of an ECHR protected right or equality duty, and constitutional allocation of powers, constitutional rights, or other complex constitutional principles.
It describes each of these grounds, what scholarly and judicial backing they may have outside of case law analysis, and how they compare and contrast with popular existing taxonomies. It concludes that Administrative Court judges are involved in ordinary common law statutory interpretation in roughly half of all cases, and that judges do indeed consider their task to be one of determining whether the challenged decision was justified by adequate reasoning when discretionary judgement is involved on the part of the initial decision-maker.
It is discovered that courts use standard common law concepts of legislative interpretation to historical precedents, such as evaluating the initial decision-reasoning maker's in light of the statutory objective and separating relevant from irrelevant issues, such as moral concerns. The result is a groundbreaking rethinking of judicial review grounds and Administrative Court practise in England and Wales.
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