Introduction to: 'The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow'

Forthcoming in H Wilberg and M Elliott (Eds), "Substantive Grounds of Review: Traversing Taggart's Rainbow" (Hart Publishing 2015)

14 Pages Posted: 25 Nov 2014

See all articles by Mark Elliott

Mark Elliott

University of Cambridge - Faculty of Law

Hanna Wilberg

University of Auckland - Faculty of Law

Date Written: November 19, 2014

Abstract

This book is concerned with pursuing two separate but related central themes that we see in Professor Mike Taggart’s scholarship on substantive grounds of judicial review. The first theme is addressed in part A of the book. It concerns the extent to which review of the merits, traditionally limited to Wednesbury unreasonableness, should be expanded into more intensive reasonableness review, or new substantive grounds of review, or both. In Taggart’s final article on substantive review, entitled ‘Proportionality, Deference, Wednesbury’, the headline point was his surprising and controversial conversion to the ‘bifurcation’ of judicial review into ‘rights cases’ and ‘public wrongs’ cases. However, the article was by no means confined to that point. It was also Taggart’s final contribution on a much wider range of issues concerning substantive grounds of review. A desire to engage with and build on Taggart’s work on this wider range of issues forms the backdrop to and impetus for this collection. The aim, however, is not to revisit already well-trodden ground, but to provide an opportunity for scholars from across the common law world to take forward aspects of the debate concerning substantive judicial review.

The second theme is addressed in part B. It concerns the extent to which deference is appropriate on questions of law – a question which Taggart raised most prominently in his essay on ‘The Contribution of Lord Cooke to Scope of Review Doctrine in Administrative Law'. Both themes are concerned with substantive review, but in two different senses of that phrase. The first, in part A, is the narrower sense in which the phrase is most commonly used in the UK, Australia and New Zealand –– relating to judicial examination of the substantive merits of a decision. The second sense in which substantive review is considered in part B is the broader sense in which the phrase is commonly used in Canada –– embracing questions of legality as well as merits questions. The question in relation to this broader sense of substantive review is the opposite of that in part A: not whether such review should be expanded, but whether its intensity should be reduced in some contexts by introducing deference.

Keywords: Administrative Law, Judicial Review of Administrative Action, Standard of Review, Substantive Grounds of Review, Deference

JEL Classification: K10, K23

Suggested Citation

Elliott, Mark C. and Wilberg, Hanna, Introduction to: 'The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow' (November 19, 2014). Forthcoming in H Wilberg and M Elliott (Eds), "Substantive Grounds of Review: Traversing Taggart's Rainbow" (Hart Publishing 2015). Available at SSRN: https://ssrn.com/abstract=2528019

Mark C. Elliott

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Hanna Wilberg (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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