Doing Judicial Review in the Post-Eba Era: A v Secretary of State for the Home Department
Date | 01 September 2014 |
Published date | 01 September 2014 |
Pages | 395-400 |
DOI | 10.3366/elr.2014.0232 |
Author | Chris Himsworth |
The idea that access to judicial review, as one of the core ingredients of the rule of law, has a fundamental status in the constitutional order has wide appeal. If it is suggested that an “ouster clause” might have the effect of excluding judicial review, the judicial response is robust, whether, for instance, in the form of the House of Lords’ judgment in [2011] UKSC 46, 2012 SC (UKSC) 122 at paras 42-52 per Lord Hope and at paras 135-153 per Lord Reed.
If outright exclusion of review by a legislature produces such resistance, it seems that even a narrowing of the scope of review in the pursuit of apparently worthy constitutional ideals, this time at the hand of the courts, may be just as problematic. Such a narrowing was what was intended in June 2011 by the UKSC in
[2011] UKSC 29, 2012 SC (UKSC) 1.
(for Scotland) andWell, not quite. We shall return to the review criteria and their fitness for purpose but it has also to be recalled that, for their application in Scotland, Lord Hope added in
He relied especially on
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