Comparing the Determination of the Grounds of Judicial Review in the Light of Deep-Water Legality and Legal Culture: A Navigating Framework

2021 ◽  
pp. 1-29
Author(s):  
Voraphol Malsukhum
Keyword(s):  
Deep Water ◽  
Judicial Review ◽  
Legal Culture

Making Decisions for Children—Accommodating Parental Choice in Best Interests Determinations: Barts Health NHS Trust v Raqeeb [2019] EWHC 2530 (Fam); Raqeeb and Barts Health NHS Trust [2019] EWHC 2531 (Admin)

2019 ◽  
Vol 28 (1) ◽  
pp. 183-196
Author(s):  
Emma Cave ◽  
Joe Brierley ◽  
David Archard
Keyword(s):  
Brain Injury ◽  
Judicial Review ◽  
Religious Beliefs ◽  
Rare Condition ◽  
Parental Choice ◽  
Best Interests ◽  
High Court ◽  
Ongoing Treatment ◽  
International Laws

Abstract Four-year-old Tafida Raqeeb suffered a sudden and catastrophic brain injury resulting from a rare condition. UK doctors would not agree to a transfer of Tafida to a hospital in Italy in circumstances that they considered to be contrary to her best interests. Her parents applied for judicial review of the hospital decision and the hospital Trust applied for a determination of Tafida’s best interests. The cases were heard together. The High Court ruled that Tafida could be taken to Italy for treatment. Applying the best interests test, Mr Justice MacDonald found that Tafida was not in pain and ongoing treatment would not be a burden to her. Further treatment would comply with the religious beliefs of her parents. The case is specific to its facts, but MacDonald J’s interpretation of the best interests test is likely to have implications. In particular, we explore the separation of medical and overall best interests; the recognition of the relevance of international laws and frameworks to best interests determinations; and reliance not on what Tafida could understand and express but on what she might in future have come to believe had she followed her parents’ religious beliefs.

Rights Review in the High Court and the Cultural Limits of Judicial Power

2013 ◽  
Vol 41 (3) ◽  
pp. 585-608
Author(s):  
Robert Woods
Keyword(s):  
Judicial Review ◽  
Judicial Politics ◽  
Legal Culture ◽  
Judicial Power ◽  
Institutional Constraints ◽  
Constitutional Rights ◽  
High Court ◽  
Rights Protection

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Christopher Forsyth
Keyword(s):  
Civil Rights ◽  
Judicial Review ◽  
Public Law ◽  
European Convention ◽  
Public Hearing ◽  
Reasonable Time ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Administrative Proceedings

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

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