In previous posts I have set out reasons to doubt the prospects for the continued longevity of Chevron deference but I have also explained why these reasons for doubt should be not be over-stated. In this post, I outline the principal arguments of the anti-Chevron advocates, with particular reference to the opinion of then-Judge Gorsuch […] Read more

In a previous post I laid out some of the reasons to doubt the likely continued vitality of Chevron deference. In this post, however, I develop some doubts about those doubts. First, Kennedy J’s reasons in Pereira do not lend themselves to an unequivocal anti-Chevron reading. Although he suggested the “premises” underlying Chevron could be […] Read more

Doubts are gathering about the future of Chevron deference in the United States. Under sustained attack from the forces of judicial supremacy on matters of legal interpretation and shorn of some of its strongest defenders, Chevron seems to be on the ropes. In this post, I will lay out some of the signs of doubt […] Read more

The UK Supreme Court’s decision in R (Gallaher Group Ltd) v Competition and Markets Authority [2019] AC 96 has already spawned a large literature (for open-access commentary, see e.g. Mark Elliott and Joanna Bell). I noted the case when it was decided last summer but did not have much to say, treating it, first, as […] Read more

Here is a snippet of a piece to be published in the inaugural volume of the Irish Supreme Court Review: “Substantive Review in the Common Law World: AAA v Minister for Justice [2017] IESC 80 in Comparative Perspective” (full version available on request). How intensively courts on judicial review should scrutinise administrative decisions is a […] Read more

When will a jurisdictional error be sufficiently “material” to justify the quashing of a tainted decision? This issue has prompted some discussion on the High Court of Australia, most recently in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and especially in Hossain v Minister for Immigration and Border Protection [2018] HCA 34. […] Read more

Perhaps because I have collateral challenge on the brain (see my post on the Supreme Court of Canada’s decision in Bird) but I cannot help but think of Adesotu v Lewisham LBC Case No E40CL183 in terms of the permissibility of indirectly impugning allegedly unlawful administrative action. Adesotu is not really a case about collateral […] Read more

Found to be a long-term offender and known to be someone who struggled with conditional releases from custody, Mr Bird was made subject by the Parole Board of Canada to a long-term supervision order, which included a residency requirement. Mr Bird breached the residency requirement and criminal proceedings were duly initiated, carrying a penalty of […] Read more

Away from this forum I’ve made three contributions in the last month to debates about Brexit, from a law and policy point of view. First, I participated in a Centre for Public Law panel discussion on the UK Supreme Court’s decision in the Scottish Continuity Billcase, [2018] UKSC 64. The link below starts at my […] Read more

Can a statutory tribunal disapply the law? The question arises in respect of constitutional challenges to legislation and, in the European Union, in respect of claims that domestic law contravenes norms of E.U. law. The recent decision of the Court of Justice in Minister for Justice and Equality v Workplace Relations Commission C-378/17 on a preliminary reference […] Read more