Some Recent Papers on Reasonableness Review

Two from the collection edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. First, Elliott, “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification”:

Questions about substantive judicial review – its legitimacy, its appropriate intensity, its proper limits – often appear to be as intractable as they are beguiling. The appeal – but also the complexity – of the debate lies, at least in part, in the fact that it is animated by disagreement about underlying constitutional matters, including the rule of law, the separation of powers, and the nature, status, extent, legitimacy and interaction of legislative, administrative and judicial authority. In this chapter, I am concerned with substantive review in the narrower of the two senses in which the term is used in this book: that is, review of the decision itself, as distinct from the process by which the decision was taken, on grounds involving some degree of scrutiny of the merits. More particularly, the aim is to explore the relationship between the constitutional matters mentioned above and the front-line doctrinal tools, such as the Wednesbury and proportionality tests, that are associated with substantive review. I will advocate an approach that, while acknowledging the valuable role that doctrinal tools are capable of playing in the structuring of law and legal reasoning, insists upon such tools’ subservience to the underlying concerns that ought to be in the driving seat. I will also argue against approaches that promise neat, bright-line distinctions but which do so by masking underlying normative or constitutional complexity through the application of a formalist doctrinal veneer.
Second, Jason Varuhas, “Against Unification“:
It is increasingly common for commentators to argue that common law judicial review and human rights law are merging to form a unified field of public law, characterised by common functions, norms, concepts and methods, and/or that the two fields ought to be so unified. Such commentators typically favour unification of public law as a whole around human rights and other constitutional values, and proportionality method. The idea of unification increasingly finds support among the higher judiciary, particularly in decisions concerning substantive review at common law.This paper argues (i) that common law review and the law under the Human Rights Act of 1998 are fundamentally distinct fields of law which perform radically different functions, and (ii) that the fields ought not to be synthesised. Consideration of fundamental doctrinal features of each field shows that common law review is concerned principally with ensuring public power is exercised properly and for the common good, whereas human rights law is principally concerned to protect and vindicate basic individual rights and interests. Given these different functions it is only natural that the two fields would be characterised by different norms, concepts and methods. Further, it is difficult to see how a public-regarding field and an individual-regarding field could sensibly be unified, nor why unification is desirable: each field performs distinctively valuable public law functions, so that something of real value would be lost if the two fields were reduced to a single function. The paper considers normative arguments for and against unification, and critically evaluates two models of unification favoured by commentators: constitutionalisation and privatisation.

And readers may also enjoy Paul Craig, “Judicial Review and Anxious Scrutiny: Foundations, Evolution and Application“:
There is a considerable literature on proportionality, and on the pros and cons of proportionality and rationality as tests for judicial review. There is, however, scant analysis of the role played by anxious scrutiny in the lexicon of judicial review in the UK. For most mainstream public lawyers it conjures up heightened rationality review of the kind developed prior to the HRA in Smith. There is truth in this, but there is, as will be seen, a good deal more to anxious scrutiny. The article begins by considering the judicial foundations for the doctrine. This is followed by analysis of its conceptual structure, capturing in this respect the subject-matter areas to which it applies, and the fact that it imposes obligations on both the primary decision-maker and the reviewing court. The focus then shifts to the way in which the concept is used in human rights, and asylum and immigration, which are the two principal spheres of application, and the limited extent to which it has been deployed outside these areas. The article concludes with assessment of the contribution made by anxious scrutiny insofar as it imposes obligations on the primary decision-maker, and on the reviewing court.


This content has been updated on July 27, 2015 at 09:40.