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Michael Ramsden - One of the best experts on this subject based on the ideXlab platform.
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english Administrative law in post handover hong kong in swati jhaveri and michael ramsden eds judicial review of Administrative Action across the common law world origins and adaptations cambridge university press 2020
Social Science Research Network, 2020Co-Authors: Michael RamsdenAbstract:After 156 years of British rule Hong Kong was returned to the People’s Republic of China on 1 July 1997 under a unique constitutional settlement of ‘One Country, Two Systems’. Under this model, the essential features of governance under colonial rule would be retained with modifications to suit the new realities. An important feature that was retained in the Hong Kong constitution, the ‘Basic Law’, was the common law system and, with it, the power of individuals to challenge decisions of the legislature and executive by way of judicial review. Since the handover, judicial review has not only continued but grown in prominence, it now playing an even greater role in the regulation of public administration, with Hong Kong residents also seeing the benefit in using the courts as a means to participate in public affairs given the continued absence of meaningful democracy and representative government. The purpose of this chapter is to explore one particular facet of judicial review in Hong Kong: the continued influence of English law on its development. It does so from two vantage points. First, it considers the influence that the British colonial form of governance and recognition of human rights has had in the crafting of post-handover constitutional guarantees. Second, the chapter then proceeds to consider the continuing influence of English precedent on judicial review in Hong Kong, both in relation to the principles of Administrative law and the content of fundamental rights.
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international influences on english judicial review and implications for the exportability of english law in swati jhaveri and michael ramsden eds judicial review of Administrative Action across the common law world origins and adaptations cambridge
Social Science Research Network, 2020Co-Authors: Michael RamsdenAbstract:This chapter considers the scope of dualism, in the context of Administrative law, in the English legal system and common law world. It notes that there is no unitary account of the dualist principle in the common law; this too represents a spectrum of possibilities, from autochthonous leanings (Sri Lanka and Singapore) to legal cosmopolitanism (South Africa and India). It suggests that a number of factors will ultimately shape the extent to which dualism is adhered to: constitutional foundations of judicial review; state identity and historical human rights legacies (or abuses); cultural relativism; geopolitical imperatives to engage with an international regime; the scope and intensity of existing principles of judicial review to which such norm will be ‘received’; and the extent of international regime control over national legal systems. It suggests that a rich comparative conversation is ongoing as to the proper scope and purpose of the dualist principle in common law judicial review. In turn, it shows that the English approach to dualism in judicial review, illustrated in Brind, has garnered both opponents and supporters in other common law jurisdictions; in some instances, it has been ‘exported’, but at the very least it has fostered a rich comparative dialogue and competing approaches in cases such as Teoh and Tavita. At the same time, this chapter argues that the English courts can benefit from ‘importing’ more progressive approaches to unincorporated norms but that the indigenous turn in rights discourse may lead to an English assertion of normative autonomy from attempts at securing progressive convergence on the dualist question.
Giacinto Della Cananea - One of the best experts on this subject based on the ideXlab platform.
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judicial review of Administrative Action in italy beyond deference
Social Science Research Network, 2019Co-Authors: Giacinto Della CananeaAbstract:This paper proposes a vision of judicial review of Administrative Action that is in contrast with the (perhaps diminishingly important) strand of thought according to which the existence of Administrative courts is a deviation from constitutional principles. It argues, first, that such courts were set up simply because existing judges did not ensure an adequate judicial protection against the State and, second, that the Constitution does not simply acknowledge the existence of Administrative courts, but strengthens their powers and the protection for citizens. The paper also shows that there are still significant differences between the views of the various courts. There is not a single standard, but a variety of standards, which evolve with a different pace. Moreover, the capacity of agencies to positively adapt their conduct to the new and more demanding standards remains doubtful and certain political circles are likely to continue to encourage agencies to tolerate some degree of official misconduct. Any attempt to read these issues in a way that simply highlights some sort of linear ‘progress’ is thus unlikely to provide an adequate picture of a complex reality.
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judicial review of Administrative Action in europe common trends and requirements
Social Science Research Network, 2018Co-Authors: Giacinto Della CananeaAbstract:This article focuses on judicial review of Administrative Action within the European legal space. It has three main themes. First, it makes an attempt to understand, in a historical perspective, why some courts deeply involved in the business of government have failed somewhere, while other courts have succeeded elsewhere. Second, the paper considers current trends in Europe. It distinguishes two variants of specialization - one based on Administrative courts and another on specialized panels within civil courts. Thirdly, the article argues that a balance between judicial independence and accountability is necessary. This implies, on the one hand, guarantees of judicial independence, a legal basis for the exercise of authority over individuals and firms and certain standards of procedural due process of law. Arguably, national governments have some margins of manoeuvre in the interpretation of such requirements, but their essential content cannot be infringed. On the other hand, accountability must be ensured: in particular, if certain conditions are met, supervision by mixed judicial councils is to preferred to self-regulation.
Paul Daly - One of the best experts on this subject based on the ideXlab platform.
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leading works in public law de smith s judicial review of Administrative Action stevens sons london 1959
Social Science Research Network, 2021Co-Authors: Paul DalyAbstract:In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of Administrative Action. Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of Administrative Action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law. I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”). Subsequently, I explain the background against which the text was written (“The Context). I then consider its importance in the development of contemporary Administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of Administrative Action (“The Legacy”). In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of Administrative law.
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Updating the Procedural Law of Judicial Review of Administrative Action
2018Co-Authors: Paul DalyAbstract:The substantive law of judicial review of Administrative Action has grown in leaps and bounds in recent decades. However, the procedural law has lagged behind. On issues such as the content of the record on judicial review applications, the extent to which Administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, Canadian courts have recently come under pressure to update the procedural law to bring it into line with the substantive law. I develop a set of considerations which courts ought to keep in mind when updating the procedural law. Courts should not automatically assume that the procedural law of judicial review must move in lockstep with its substance. Wary of the dynamic relationship between procedure and substance in the common law tradition, mindful of constitutional fundamentals and sensitive to the need to develop the common law in an incremental fashion, consistent with those values that are immanent in the law, the judges should exercise caution in reshaping the procedural law of judicial review of Administrative Action. I apply the set of considerations to four areas of procedural law, concluding that Canadian courts have struggled with some issues – tribunal reconsideration and tribunal standing – but have done reasonably well on others – superior court jurisdiction over federal prisons and the content of the record. Indeed, the latter provides a model for the future development of the procedural law of judicial review of Administrative Action by Canadian courts.
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the court and Administrative law models of rights protection
2017Co-Authors: Paul DalyAbstract:My goal in this essay is to identify the models of rights protection that have existed in Canadian judicial review of Administrative Action, to assess their advantages and disadvantages, and to suggest future pathways for the development of rights protection in Canadian public law. I identify three current and past models: the vires model, from the pre-Charter era; the proportionality model, from the early-Charter era; and the deference model, which is currently in use. Assessing the advantages and disadvantages of these models allows me to set out an alternative model – the public law model – which draws on the strengths of both Administrative law and constitutional law to provide enhanced judicial protection for rights. In the public law model, the proportionality model is retained, such that the Oakes test is applied to assess the proportionality of infringements of the Charter, but the vires model is enhanced to strengthen the protection of rights, such that the animating concern of the deference model – that Administrative law be given a proper role in rights protection – is taken into account. The lesson of my survey of models of rights protection is that the vires model, the proportionality model and the deference model all have some advantages but also have disadvantages. A consideration of their relative merits leads to the conclusion that a public law model, with its combination of ex ante and ex post controls, would provide superior protection to Charter rights liable to be infringed by Administrative decisions.
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the unfortunate triumph of form over substance in canadian Administrative law
Osgoode Hall Law Journal, 2012Co-Authors: Paul DalyAbstract:The standard of review analysis for judicial review of Administrative Action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of Administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays intoconcepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical approach. In this article I describe the Court’s efforts to reshape the law of judicial review of Administrative Action, critique these efforts as favouring a formalistic approach to judicial review, and suggest that in its haste to simplify the law of judicial review, the Court has jeopardized the due deference that should be accorded to Administrative decision makers: It has erroneously favoured form
Santanu Sabhapandit - One of the best experts on this subject based on the ideXlab platform.
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article 12 and judicial review of Administrative Action an analysis
Indian Law Review, 2018Co-Authors: Santanu SabhapanditAbstract:The centrality of the objective of protecting fundamental rights to judicial review in India is self-evident from Article 32 and Article 226 of the Constitution. Article 12 defines “State” and sinc...
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article 12 and judicial review of Administrative Action an analysis
Social Science Research Network, 2018Co-Authors: Santanu SabhapanditAbstract:The centrality of the objective of protecting fundamental rights to judicial review in India is self-evident from Article 32 and Article 226 of the Constitution. This objective has led the judiciary to adopt an expansive interpretation of Article 12 that enables the inclusion of various entities within the purview of judicial review. Article 12 defines ‘State’ and since fundamental rights are normally enforceable only against the ‘State’, it acts as the broad criterion for amenability to judicial review. The judiciary’s approach towards expanding Article 12 has had a lasting effect on how amenability criteria for judicial review is perceived in India. Under Article 226, judicial review may also be conducted for purposes other than the protection of fundamental rights. However, the purpose and scope of, as well as the amenability criteria for such type of judicial review remains unclear. This article demonstrates that a peremptory effect of Article 12 diverts focus from the context of determining amenability and prevents proper engagement with a sphere of judicial review, whose purpose is broader and independent of the purpose of protecting fundamental rights.
Greg Weeks - One of the best experts on this subject based on the ideXlab platform.
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a statutory shield of the executive to what extent does legislation help Administrative Action evade judicial scrutiny
Social Science Research Network, 2020Co-Authors: Dominique Dallapozza, Greg WeeksAbstract:There are two broad arguments that suggest it is generally preferable for the Executive’s power to be codified and in statutory form. The first is democratic: despite the role of cabinet governance in the Australian democratic system and the fact that Cabinet quite properly makes many decisions which are unsupported by legislation, it is generally preferable in a democracy for exercises of executive power to be constrained by legislation whose terms have passed through the parliamentary process and have thus been ratified by the elected representatives of the people. The second is functional: that codifying executive power should make reviewing exercises of that power easier because it has the practical effect of placing express limitations around the range of discretions given to the decision-maker. The second (functional) justification for codification assumes that placing powers on a statutory basis would simplify assessing whether the executive acts appropriately in exercising that power. This is because such an assessment would be based on questions including whether the decision-maker has complied with the statute or whether the statute is constitutionally valid. These are questions which, at first blush, seem particularly amenable to resolution by the courts. This Chapter will not explore the first (democratic) justification raised above. Indeed, we accept that the public law heritage Australia takes from Britain makes it impractical for every instance of executive Action to be ratified by Parliament by passing primary legislation. That was the preference of AV Dicey, who was opposed to vesting discretionary powers in the Administrative state rather than in Parliament and abhorred the idea of ‘law’ that came from any source other than Parliament or the ‘ordinary’ courts of England. However, notwithstanding the support of prominent followers, this view has long been out of fashion, for several reasons. The first was that he did not understand the difference between ‘discretion’ and ‘arbitrariness’. The second was that Dicey’s fears that discretion was a threat to the rule of law have not proved justified. The third is the most important: Dicey wrote at time when England (and, by extension, certainly Australia) could be governed from the floor of Parliament. The almost exponential growth of the Administrative state throughout the western world between the Depression and the aftermath of the Second World War demolished Dicey’s belief structure in this regard. Parliamentary time is now at a premium and, although it is held to the highest standard of available accountability, legislation passed through both Houses of Parliament can frequently be slow to make, unresponsive to changing circumstances and inflexible. Delegated legislation is not made in Parliament but it does not lack accountability in as much as it is authorised by Parliament. In any case, we should be far more concerned about executive regulation that takes place without any delegation from Parliament at all.