Download PDF by Mark Elliott: The Constitutional Foundations of Judicial Review

By Mark Elliott

ISBN-10: 1841131806

ISBN-13: 9781841131801

ISBN-10: 1847310516

ISBN-13: 9781847310514

Fresh years have witnessed a colourful debate about the constitutional foundation of judicial evaluate, which displays a broader discourse concerning the function of the courts, and their dating with the opposite associations of presidency, in the constitutional order. This booklet comprehensively analyzes the principles of judicial assessment. It matters the normal justification, according to the doctrine of extremely vires, to serious scrutiny and primary reformulation, and it addresses the theoretical demanding situations posed by means of the influence of the Human Rights Act 1998 on administrative legislation and through the extension of judicial assessment to prerogative and non-statutory powers. It additionally explores the connection among the theoretical foundation of administrative legislations and its functional capability to shield contributors opposed to maladministration. The e-book seeks to boost a constitutional cause for judicial overview which founds its legitimacy in center rules akin to the guideline of legislation, the separation of powers and the sovereignty of Parliament. It provides an in depth research of the interface among constitutional and administrative legislation, and should be of curiosity to all public attorneys.

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2, that this one-dimensional view of sovereignty, and the model of judicial review to which it gives rise, ignore the rich set of constitutional principles which lie at the heart of the British polity. The present discussion, however, is concerned simply with the traditional models of sovereignty and ultra vires. 47 For detailed analysis of how the manner in which the legal location of the rules applied on review impacts upon the ability of constitutional theory to reconcile judicial review with the principle of parliamentary sovereignty, see below, Chs.

A useful starting point is the theory of ultra vires. The justificatory power which has traditionally been ascribed to that theory derives from the fact that it addresses—or at least seeks to address—two fundamental issues. First, it attempts to furnish an ultimate constitutional rationale for judicial review. It does this by relating the courts’ supervisory endeavour to the implementation of Parliament’s sovereign will, thereby clothing judicial review with a constitutional legitimacy which—if the theory of legislative supremacy is accepted—is beyond question.

13 The desirability of judicial review within the modern British polity does not obviate the need to establish its constitutional legitimacy. In developing their contemporary supervisory jurisdiction, the courts have arrogated to themselves considerable powers over the executive and have assumed constitutional functions which, traditionally, have been exercised by the legislative branch. It is, therefore, the purpose of the present work to investigate the basis of these developments by examining the constitutional and legal foundations on which the superstructure of modern administrative law rests.

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The Constitutional Foundations of Judicial Review by Mark Elliott


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