Effective Judicial Review A Cornerstone of Good Governance

by Forsyth, Christopher; Elliott, Mark; Jhaveri, Swati; Ramsden, Michael; Scully Hill, Anne

• ISBN13: 9780199581054
• ISBN10: 0199581053
• Format: Hardcover
• Copyright: 2010-05-13
• Publisher: Oxford University Press

Summary

The use and scope of judicial review of government action has transformed across the common law world over the last forty years. This volume takes stock of the transformation, bringing together over 30 leading figures from academia and practice to analyze the major issues surrounding the legal reforms from theoretical and comparative perspectives. Coverage in the book spans the theoretical foundations of judicial review; the scope and functions of administrative justice; the conditions of judicial independence; recurring problems in legal doctrine; and issues in legal procedure. A final set of essays presents case studies of the experiences of reforming judicial review in different countries, including an extended section on judicial review in China.

Author Biography

Professor Christopher Forsyth is Professor of Public Law and Private International Law, Faculty of Law, University of Cambridge.

Dr. Mark Elliott is Senior Lecturer, Faculty of Law, University of Cambridge.

Professor Swati Jhaveri is Assistant Professor, Faculty of Law, The Chinese University of Hong Kong.

Professor Michael Ramsden is Assistant Professor, Faculty of Law, The Chinese University of Hong Kong.

Professor Anne Scully Hill is Associate Professor, Faculty of Law, The Chinese University of Hong Kong.

Table of Contents

List of Contributors	p. xi
Table of Cases	p. xiii
Table of Legislation	p. xxvii
Foreword	p. xxxiii
Preface: The Rt. Hon. Lord Woolf of Barnes	p. xxxvii
Introduction
Introductory Essay by the Editors	p. 3
The Legitimacy and Constitutional Foundations of Judicial Review
Judicial Independence and Judicial Review in Constitutional Democracies: A Note on Hamilton and Tocqueville	p. 9
Political Constitutionalism and Judicial Review	p. 19
The Constitutionalization and Codification of Judicial Review in South Africa	p. 43
Constitutions, Codes, and Administrative Law: The Australian Experience	p. 61
Scope and Functions of Administrative Justice
Judicial Review and Administrative Justice	p. 85
Human Rights Obligations in the Private Sector: Reflections on YL v Birmingham City Council and the Meaning of 'Public Function'	p. 101
Judicial Review in the Age of Tribunals	p. 120
Tribunal Justice-Judicial Review by Another Route	p. 143
Should the Primary Locus of Government Adjudication be in the Agencies, the Courts, or in a Special Tribunal? comparisons Between the US and the UK/Australia Models	p. 163
Conditions for Effective Judicial Review
An Independent Judiciary	p. 169
Judicial Independence and Judicial Review of Government Action: Necessary Institutional Characteristics and the Appropriate Scope of the Judicial Function	p. 187
The Unaccountability of Judges: Surely their Strength not their Weakness	p. 208
An Impartial and Uncorrupted Civil Service: Hong Kong's Fight Against Corruption in the Past 34 Years	p. 216
Grounds of Judicial Review
The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review	p. 245
Proportionality and Deference: The Importance of a Structured Approach	p. 264
The Intensity of Judicial Review in the Commercial Context: Deference and Proportionality	p. 287
Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law	p. 300
The Statutory Fiction of Judicial Review of Administrative Action in the United States	p. 317
Judicial Review of Regulators	p. 332
Administrative Law in the Hksar and China
Remedies in Administrative Law	p. 359
The Dawn of the Due Process principle in China	p. 382
Necessity and the Remedies Conundrum	p. 403
General Themes in the Consideration of Administrative Detentions	p. 408
Judicial Review in the Hong Kong Special Administrative Region: Necessary Because of Bad Governance	p. 413
The Functions of Judicial Review in Hong Kong	p. 416
Epilogue
Themes from the Volume	p. 423
Concluding Comments: Judicial Review's Constitutional Home	p. 434
Index	p. 445
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