Structuring substantive review
<p>The question whether Wednesbury should be “buried” or “consigned to the dustbin of history” and replaced with proportionality has received a great deal of attention, not least from the Supreme Court, whose members have taken different perspectives on the same issue within the space of th...
| Main Author: | |
|---|---|
| Format: | Journal article |
| Published: |
Sweet and Maxwell
2017
|
| _version_ | 1826290098978684928 |
|---|---|
| author | Williams, R |
| author_facet | Williams, R |
| author_sort | Williams, R |
| collection | OXFORD |
| description | <p>The question whether Wednesbury should be “buried” or “consigned to the dustbin of history” and replaced with proportionality has received a great deal of attention, not least from the Supreme Court, whose members have taken different perspectives on the same issue within the space of the last two years, and in Keyu, the Supreme Court’s most recent decision on the topic, Lord Kerr suggested that “a final conclusion on the question whether proportionality should supplant rationality as a ground of judicial review” may have to be “frankly addressed by [the Supreme] court sooner rather than later”. Wednesbury and its apparent alternative, proportionality, are thus presented as mutually exclusive alternatives, “bluntly opposed to each other” such that we have to choose between “bifurcation” or the replacement of Wednesbury with proportionality. On this view, proportionality is seen as entailing, as Lord Neuberger put it in Keyu, “implications which are profound in constitutional terms and very wide in applicable scope”.</p> <br/> <p>The argument here, however, is that there is relatively little to choose between these two approaches. Within common law rationality review the courts already undertake precisely the same kind of reasoning as they do under proportionality. This has recently been recognised by the Supreme Court in Kennedy and Pham, by Lords Mance and Kerr in Keyu, and by Lord Carnwath in Rotherham v BIS. There certainly are different kinds of substantive review, but as these cases have demonstated, these differences derive directly from the subject matter of the cases, rather than from any inherent distinction between proportionality and rationality. As for the academic debate, by focusing principally on the Wednesbury v proportionality issue this has, to some extent, become diverted from its main objectives. Both those who advocate proportionality and those who advocate bifurcation are concerned to enhance the clarity and predictability of review, while also maintaining the vital appeal/review distinction. But in fact neither proportionality as it currently operates, nor Wednesbury, delivers these desired benefits across the board. It will therefore be further argued that we should move away from focusing on issues of classification, and focus instead on the two key issues at the heart of all forms of judicial review, namely what in substance is alleged to have gone wrong with the decision, and how intensively that issue is to be reviewed.</p> |
| first_indexed | 2024-03-07T02:39:00Z |
| format | Journal article |
| id | oxford-uuid:a9c97da4-3f48-4631-ba91-0be33345fbe2 |
| institution | University of Oxford |
| last_indexed | 2024-03-07T02:39:00Z |
| publishDate | 2017 |
| publisher | Sweet and Maxwell |
| record_format | dspace |
| spelling | oxford-uuid:a9c97da4-3f48-4631-ba91-0be33345fbe22022-03-27T03:10:43ZStructuring substantive reviewJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:a9c97da4-3f48-4631-ba91-0be33345fbe2Symplectic Elements at OxfordSweet and Maxwell2017Williams, R<p>The question whether Wednesbury should be “buried” or “consigned to the dustbin of history” and replaced with proportionality has received a great deal of attention, not least from the Supreme Court, whose members have taken different perspectives on the same issue within the space of the last two years, and in Keyu, the Supreme Court’s most recent decision on the topic, Lord Kerr suggested that “a final conclusion on the question whether proportionality should supplant rationality as a ground of judicial review” may have to be “frankly addressed by [the Supreme] court sooner rather than later”. Wednesbury and its apparent alternative, proportionality, are thus presented as mutually exclusive alternatives, “bluntly opposed to each other” such that we have to choose between “bifurcation” or the replacement of Wednesbury with proportionality. On this view, proportionality is seen as entailing, as Lord Neuberger put it in Keyu, “implications which are profound in constitutional terms and very wide in applicable scope”.</p> <br/> <p>The argument here, however, is that there is relatively little to choose between these two approaches. Within common law rationality review the courts already undertake precisely the same kind of reasoning as they do under proportionality. This has recently been recognised by the Supreme Court in Kennedy and Pham, by Lords Mance and Kerr in Keyu, and by Lord Carnwath in Rotherham v BIS. There certainly are different kinds of substantive review, but as these cases have demonstated, these differences derive directly from the subject matter of the cases, rather than from any inherent distinction between proportionality and rationality. As for the academic debate, by focusing principally on the Wednesbury v proportionality issue this has, to some extent, become diverted from its main objectives. Both those who advocate proportionality and those who advocate bifurcation are concerned to enhance the clarity and predictability of review, while also maintaining the vital appeal/review distinction. But in fact neither proportionality as it currently operates, nor Wednesbury, delivers these desired benefits across the board. It will therefore be further argued that we should move away from focusing on issues of classification, and focus instead on the two key issues at the heart of all forms of judicial review, namely what in substance is alleged to have gone wrong with the decision, and how intensively that issue is to be reviewed.</p> |
| spellingShingle | Williams, R Structuring substantive review |
| title | Structuring substantive review |
| title_full | Structuring substantive review |
| title_fullStr | Structuring substantive review |
| title_full_unstemmed | Structuring substantive review |
| title_short | Structuring substantive review |
| title_sort | structuring substantive review |
| work_keys_str_mv | AT williamsr structuringsubstantivereview |