What is included with this book?
Acknowledgements | p. xiii |
List of Contributors | p. xv |
List of Participants | p. xvii |
Table of Cases | p. xix |
Table of Legislation | p. xxx |
The Debate Begins | |
Is the Ultra Vires Rule the Basis of Judicial Review? | p. 3 |
Sources of Power | p. 5 |
Institutions | p. 8 |
Functions | p. 11 |
Conclusions | p. 25 |
Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review | p. 29 |
Introduction | p. 29 |
Judicial Review and the Exercise of Non-legal Powers by Non-statutory Bodies | p. 31 |
"Weak" and "Strong" Criticisms of the Ultra Vires Doctrine | p. 33 |
The Response to "Weak" Criticism | p. 35 |
Reconciling the "Weak" Criticisms with Orthodoxy | p. 40 |
The Utility of Fig-leaves and Fairy Tales | p. 42 |
The Response to "Strong" Criticism | p. 43 |
Conclusions | p. 45 |
Ultra Vires and the Foundations of Judicial Review | p. 47 |
The Criticisms of the Ultra Vires Doctrine | p. 48 |
The Defence of the Ultra Vires Principle: The Dangers of its Abandonment | p. 54 |
The Defence of the Ultra Vires Principle: Meeting the Objections | p. 59 |
The Foundations of Judicial Review | p. 61 |
Conclusion | p. 70 |
Illegality: The Problem of Jurisdiction | p. 73 |
R. v. Hull University ex p Page | p. 79 |
The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law | p. 83 |
Introduction | p. 83 |
The Importance of Justifying Judicial Review | p. 85 |
The Relationship between Legislative Intention and Judicial Review | p. 88 |
A Constitutional Setting for the Ultra Vires Doctrine: Overcoming the Shortcomings of the Traditional Model | p. 100 |
Conclusion | p. 107 |
The Jurisprudential Debate | |
Ultra Vires and Institutional Interdependence | p. 111 |
Criteria for Assessing the Merits of a Legal Theory | p. 114 |
Ultra Vires as the Constitutional Foundation of Judicial Review | p. 116 |
Institutional Interdependence and Hart's Rule of Recognition | p. 130 |
An Analogy: Parliamentary Privilege | p. 135 |
Conclusion: Making Explicit the Basis of Judicial Review | p. 138 |
Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review | p. 141 |
Introduction | p. 141 |
Procedure and Substance in Practical Theory | p. 142 |
Positivism, Judicial Review and the Rule of Law | p. 145 |
Substance and Judicial Supremacism | p. 160 |
The Pleasing Persistence of Process Based Theories | p. 167 |
Judicial Review and the Meaning of Law | p. 173 |
Introductory | p. 173 |
The Common Law | p. 173 |
Philosophy | p. 176 |
Positivism | p. 178 |
The Nature of Principle | p. 180 |
The Rule of Law | p. 183 |
Parliament and the Judges | p. 185 |
Constitutional Reform and the Foundations of Judicial Review | |
The Foundations of Review, Devolved Power and Delegated Power | p. 191 |
General Introduction | p. 193 |
The Realities | p. 199 |
Devolution: The Mechanics | p. 200 |
Conclusions | p. 209 |
The Courts, Devolution and Judicial Review | p. 213 |
Wales, Executive Devolution and the Assignment of Limited Competence | p. 213 |
Judicial Challenge to the Competence of the Assembly | p. 216 |
Scotland, Legislative Devolution and the Demarcation of Legislative Competence | p. 220 |
Political Challenge to the Competence of the Scottish Parliament | p. 224 |
Judicial Challenge to the Competence of the Scottish Parliament | p. 224 |
Judicial Determination of Legislative Competence: Three Central Issues | p. 228 |
The Interpretative Perspective: Statutory or Constitutional Interpretation? | p. 229 |
The Division of Power: Manner and Degree | p. 233 |
The Unavoidable Task: The Classification of Impugned Legislation by Subject Matter | p. 237 |
Conclusion | p. 243 |
Convention Rights and Substantive Ultra Vires | p. 245 |
The Meanings of "Ultra Vires" and the Purpose of this Essay | p. 245 |
The Effect of Ultra Vires Theories on the Protection of Convention Rights | p. 251 |
The Effect of Convention Rights on the Theory of Ultra Vires | p. 261 |
Conclusion | p. 266 |
Fundamental Rights as Interpretative Constructs: The Constitutional | |
Logic of the Human Rights Act 1998 | p. 269 |
Introduction | p. 269 |
Human Rights as Substantive Rules of Good Administration | p. 271 |
Human Rights as Interpretative Constructs | p. 277 |
Conclusion | p. 287 |
Judicial Review of Statutory and Non-Statutory Discretion | |
Public Power and Private Power | p. 291 |
Review of (Non-Statutory) Discretions | p. 307 |
Fiduciary Relationships | p. 308 |
Company Law | p. 312 |
The Common Law | p. 315 |
Public Policy | p. 318 |
Towards General Principles of Decision-making | p. 321 |
The Limits of Duties of Considerate Decision-making in Public and Private Law | p. 322 |
Implications for the Public Private Divide | p. 323 |
Of Vires and Vacuums: The Constitutional Context of Judicial Review | p. 327 |
Testing the Justifications through the Grounds of Review | p. 329 |
Vires in Context | p. 336 |
The Separation of Powers and Judicial Independence | p. 338 |
Review of Non-statutory Bodies | p. 339 |
Conclusion | p. 339 |
Legislative Intention Versus Judicial Creativity? Administrative Law as a Co-operative Endeavour | p. 341 |
Introduction | p. 341 |
The Modified Ultra Vires Principle | p. 343 |
An Unwelcome Distinction in Administrative Law | p. 350 |
The Undesirable Consequences of the Unwelcome Distinction | p. 359 |
Conclusion | p. 368 |
Conclusion | |
Competing Models of Judicial Review | p. 373 |
The Story Thus Far: The Contending Models | p. 373 |
Legislative Intent as the Central Principle of Administrative Law? The Substance of Judicial Review | p. 375 |
Legislative Intent as the Central Principle of Administrative Law? The Implications for the Substance of Other Areas of the Law | p. 378 |
Legislative Intent as the Central Principle of Administrative Law? The Formal Basis for Judicial Intervention | p. 380 |
Conclusion | p. 391 |
Heat and Light: A Plea for Reconciliation | p. 393 |
The Vanishing of the "Strong" Critics | p. 393 |
The Emergence of Consensus on Judicial Review of Non-statutory Discretion | p. 395 |
Big-endians and Little-endians | p. 396 |
The Legal Status of the Ultra Vires Doctrine | p. 397 |
The Constitutional Justification for Judicial Review | p. 399 |
Is Abandoning Ultra Vires a Challenge to Parliamentary Sovereignty? | p. 400 |
The Theoretical Criticism | p. 404 |
The Consequences of Abandonment for Administrative Law | p. 405 |
Conclusion | p. 408 |
Comments from some Participants | |
T.R.S. Allan: The Rule of Law as the Foundation of Judicial Review | p. 413 |
Professor Stephen Bailey: Judicial Review in a Modern Context | p. 421 |
Sir Robert Carnwath: No Need for a Single Foundation | p. 423 |
Professor Martin Loughlin: Whither the Constitution? | p. 425 |
Professor Michael Taggart: Ultra Vires as Distraction | p. 427 |
Sir William Wade FBA: Constitutional Realities and Judicial Prudence | p. 431 |
Index | p. 433 |
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