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The Sovereignty of LawFreedom, Constitution and Common Law$
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T.R.S. Allan

Print publication date: 2013

Print ISBN-13: 9780199685066

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199685066.001.0001

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Judicial Review and Judicial Restraint

Judicial Review and Judicial Restraint

(p.241) 7 Judicial Review and Judicial Restraint
The Sovereignty of Law

T. R. S. Allan

Oxford University Press

This chapter examines and rejects demands for a special doctrine of judicial deference to safeguard the legitimacy of judicial review. It contends that considerations of legitimacy and expertise are implicit constraints on review, inherent in the proper application of legal principle to particular cases. Distinctions drawn between contrasting standards of review, such as Wednesbury reasonableness and proportionality, are also questioned: they play a mainly descriptive rather than deliberative role. A judgement of rationality or irrationality is the conclusion of an analysis reflecting the constitutional context of executive action. Procedure shades in practice into substance as courts uphold requisite standards of due process (protecting both common law and European Convention rights). The ‘principle of legality’ is reinterpreted as a requirement of respect for the rule of law, which prohibits unjustified or disproportionate interference with fundamental rights. No statute can be correctly read as permitting such interference.

Keywords:   judicial deference, standards of review, Wednesbury reasonableness, rationality, proportionality, due process, common law rights, European Convention rights, principle of legality

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