The Law Commission and Judicial Review: Principle Versus Progmatism

1995 ◽  
Vol 54 (2) ◽  
pp. 268-279 ◽  
Author(s):  
Ivan Hare
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
England And Wales ◽  
Reform Agenda ◽  
Commission Report ◽  
The Law ◽  
Law Commission

IT IS now 18 years since the Law Commission Report which led to the introduction of the reformed R.S.C., Order 53,1 the procedure which still governs all applications for judicial review in England and Wales. The Law Commission has now returned to the field with its 1994 Report entitled Administrative Law: Judicial Review and Statutory Appeals.2 During the interval between the two reports, judicial review has undergone enormous change in terms of both thequantity of claims brought3 and the substantive and adjectival developments in the jurisprudence. Moreover, important additions to the reform agenda have been made from a variety of sources.4 The Law Commission's latest contribution could thus hardly be better timed.

Legalism and English Administrative Law: Comment on Sterett

1992 ◽  
Vol 17 (01) ◽  
pp. 89-100 ◽  
Author(s):  
David Feldman ◽  
Mark Gould
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Recent Issue ◽  
Review Procedure ◽  
The Law ◽  
1960S And 1970S ◽  
The 1960S ◽  
Law Commission ◽  
The Way

In a recent issue of this journal (Volume 15, Number 4, Fall 1990), Susan Sterett examined the role of the Law Commission in the development of English administrative law. She suggested that the Commission mimicked a “peak association” and adopted an “idiom of legalism” in order to justify its reform proposals. This comment disagrees with Sterett on three grounds. First, the role and constitutional position of the Commission is far more complex than Sterett suggests, and this affects the way in which the Commission works. Second, judges and academic lawyers were central to the reform of substantive principles of judicial review in the 1960s and 1970s, making it unnecessary for the Law Commission to act in this field. Finally, it is wrong to ignore the fact that much administrative law occurs outside the judicial review procedure.

5. Financial provision on divorce or dissolution

2020 ◽  
pp. 79-102
Author(s):  
Susan Heenan ◽  
Anna Heenan
Keyword(s):  
Child Support ◽  
Essential Information ◽  
England And Wales ◽  
Civil Partnership ◽  
Commission Report ◽  
The Law ◽  
Law Commission

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses financial provision on divorce or dissolution of marriage or civil partnership, including housing and everyday expenses of the parties and any children involved. It considers the courts’ statutory powers to redistribute property in case of divorce, nullity, judicial separation, or the dissolution of a civil partnership. The chapter explains how civil partners in England and Wales are treated under the Civil Partnership Act 2004 (CPA) and the courts’ application of the provisions of the Matrimonial Causes Act 1973 (MCA) in reaching a decision in divorce cases. It also discusses the three principles of financial needs, compensation, and sharing used by the courts in making an award; nuptial agreements; the Law Commission Report on Matrimonial Property, Needs and Agreements; and provision for children under the MCA, the CPA, the Child Support Act 1991, and the Children Act 1989.

Unfitness to Plead in England and Wales

2018 ◽  
Author(s):  
Rudi Fortson
Keyword(s):  
Mental Illness ◽  
Learning Disability ◽  
Developmental Disorder ◽  
Criminal Offence ◽  
Legal Process ◽  
England And Wales ◽  
Criminal Jurisdiction ◽  
Communication Impairment ◽  
The Law ◽  
Law Commission

This chapter examines the legal and practical issues encountered by practitioners when dealing with unfitness to plead litigation. As the Law Commission for England and Wales has pointed out, defendants charged with a criminal offence may be unfit to plead or to stand trial for a variety of reasons, including difficulties resulting from mental illness, learning disability, developmental disorder, or communication impairment. Two issues are considered: (i) how might those defendants who are unfit be accurately identified; and (ii) what steps should be taken by legal practitioners and by the courts of criminal jurisdiction to cater for the interests of vulnerable defendants, victims, and society, and to maintain the integrity of the legal process as one that is fair and just? The chapter evaluates the reform proposals of the English Law Commission and assesses how the law could be improved for all those who are involved in dealing with the unfit to plead.

10. Administrative Law:

2016 ◽  
Author(s):  
Richard Clements
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Natural Justice ◽  
Locus Standi ◽  
Public Body ◽  
Chapter Deal ◽  
The Law ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic and suggestions on further reading. This chapter is about judicial review. This is the means by which the citizen can use the courts to ensure that a public body obeys the law. The questions in the chapter deal with issues such as the erratic development of administrative law; the procedure to apply for judicial review; the right to apply (locus standi), procedural ultra vires; natural justice; and substantive ultra vires.

5. Financial provision on divorce or dissolution

2017 ◽  
Author(s):  
Susan Heenan ◽  
Anna Heenan
Keyword(s):  
Child Support ◽  
Essential Information ◽  
Civil Partnership ◽  
Commission Report ◽  
The Law ◽  
The Uk ◽  
Law Commission

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses financial provision on divorce or dissolution of marriage or civil partnership, including housing and everyday expenses of the parties and any children involved. It considers the courts’ statutory powers to redistribute property in case of divorce, nullity, judicial separation, or the dissolution of a civil partnership. The chapter explains how civil partners in the UK are treated under the Civil Partnership Act 2004 (CPA) and the courts’ application of the provisions of the Matrimonial Causes Act 1973 (MCA) in reaching a decision in divorce cases. It also discusses the three principles of financial needs, compensation, and sharing used by the courts in making an award; nuptial agreements; the Law Commission Report on Matrimonial Property, Needs and Agreements; and provision for children under the MCA, the CPA, the Child Support Act 1991, and the Children Act 1989.

scholarly journals Effective Participation of Mentally Vulnerable Defendants in the Magistrates’ Courts in England and Wales—The ‘Front Line’ from a Legal Perspective

2020 ◽  
pp. 002201832095711
Author(s):  
Helen Howard
Keyword(s):  
Legal Reform ◽  
Legal Aid ◽  
Front Line ◽  
England And Wales ◽  
Legal Professionals ◽  
Legal Reforms ◽  
Legal Perspective ◽  
The Law ◽  
Law Commission

Mentally vulnerable defendants who struggle to effectively participate in their trial in the magistrates’ courts are not receiving the same protection as those who stand trial in the Crown Court. The Law Commission for England and Wales recognised this lacuna and suggested that the law relating to effective participation should be equally applicable in the magistrates’ courts. On closer examination of the law, the legal aid system and perspectives of legal professionals on the ‘front line’, it is clear that improvements in policy are of greater importance than legal reform and are more likely to meet the needs of these vulnerable individuals. The aim of this paper will be to demonstrate that reform of the law will be insufficient to adequately protect mentally vulnerable defendants in the magistrates’ courts and that changes in policy are needed in place of, or alongside, legal reforms.

scholarly journals Administrative Law, Judicial Deference, and the Charter

2014 ◽  
Vol 23 (2) ◽  
pp. 19 ◽  
Author(s):  
Matthew Lewans
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Legitimate Authority ◽  
The Law

The doctrine of judicial deference has been a touchstone in Canadian administrative law for thirty-five years. Put simply, the doctrine recognizes that administrative officials have legitimate authority to interpret the law, which means that judicial review is warranted only if an administrative decision is demonstrably unfair or unreasonable. While the tide of deference has ebbed and flowed over this period, most administrative decisions these days are assessed according to a standard of reasonableness instead of correctness.

Sources of Dynamism in Modern Administrative Law

2020 ◽  
Author(s):  
Joanna Bell
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Law ◽  
Legal Issues ◽  
Administrative Practices ◽  
England And Wales ◽  
Legal Questions

Abstract The list of recognised grounds of judicial review has remained constant in England and Wales for several decades. Modern administrative law may therefore appear to be characterised by high levels of stability or perhaps stagnancy. The essays in The Frontiers of Public Law are, however, an important reminder of three important sources of dynamism across modern administrative law. First, legislation can change regularly in this field, generating novel legal questions. Secondly, internal administrative practices are not static but evolving, creating questions about the adequacy of existing doctrinal structures. Thirdly, principles can emerge within sub-branches of judicial review, giving rise to questions about whether and how those same principles apply elsewhere. These sources of dynamism make modern administrative law ripe territory for novel and important legal issues.

Autonomy and prenuptial agreements in Ireland: a relational analysis

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 164-186
Author(s):  
Lucy-Ann Buckley
Keyword(s):  
Gender Equity ◽  
Relational Theory ◽  
England And Wales ◽  
Party Autonomy ◽  
Fairness Concerns ◽  
The Law ◽  
Relational Concerns ◽  
And Gender ◽  
Family Autonomy ◽  
Law Commission

AbstractUnlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group's proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group's recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group's proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.

scholarly journals Le contrôle juridictionnel de l'action administrative devant les juridictions anglaises

2005 ◽  
Vol 26 (4) ◽  
pp. 863-880
Author(s):  
Sir Gordon Slynn
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Public Authorities ◽  
The United Kingdom ◽  
Private Rights ◽  
The Law ◽  
Law Commission ◽  
The Way

This article outlines the difficulties which were felt to exist in the prerogative orders of certiorari, mandamus and prohibition in the United Kingdom, despite important developments which had taken place in their use. It describes in detail the recommendations of the Law Commission and the changes introduced both by Rules of Court and legislation. The former procedures are replaced by an application for judicial review, though the basis upon which relief is granted remains substantially the same. Recent cases show the way in which the new procedure has developed. Distinctions are drawn between the test to be applied on the application for leave and on the final hearing, and between the proceeding by way of judicial review to challenge the acts of public authorities and actions where purely private rights are claimed. This article shows the way in which the possibility of exceptions to this latter distinction has been established and suggests that the ambit of the new procedure is still in course of development.

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