Judicial Review and Anxious Scrutiny: Foundations, Evolution and Application
 Public Law 60
19 Pages Posted: 18 Apr 2015
Date Written: March 16, 2015
There is a considerable literature on proportionality, and on the pros and cons of proportionality and rationality as tests for judicial review. There is, however, scant analysis of the role played by anxious scrutiny in the lexicon of judicial review in the UK. For most mainstream public lawyers it conjures up heightened rationality review of the kind developed prior to the HRA in Smith. There is truth in this, but there is, as will be seen, a good deal more to anxious scrutiny. The article begins by considering the judicial foundations for the doctrine. This is followed by analysis of its conceptual structure, capturing in this respect the subject-matter areas to which it applies, and the fact that it imposes obligations on both the primary decision-maker and the reviewing court. The focus then shifts to the way in which the concept is used in human rights, and asylum and immigration, which are the two principal spheres of application, and the limited extent to which it has been deployed outside these areas. The article concludes with assessment of the contribution made by anxious scrutiny insofar as it imposes obligations on the primary decision-maker, and on the reviewing court.
Keywords: anxious scrutiny, discretion, judicial review, evidence, intensity of review
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