Intention, Supremacy and the Theories of Judicial Review
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Product details:
- Edition number 1
- Publisher Routledge
- Date of Publication 11 August 2016
- ISBN 9781138856011
- Binding Hardback
- No. of pages164 pages
- Size 234x156 mm
- Weight 362 g
- Language English 0
Categories
Short description:
This book critically analyses the ultra vires and common law theory and argues that neither offers a suitable explanation for the courts’ judicial review jurisdiction. Instead, the author puts forward the theory that parliamentary supremacy is not absolute and does not operate in a hard and fast way but, rather, functions in a more flexible way and that the courts will balance particular Acts of Parliament against competing statutes or principles. McGarry argues that this new conception of parliamentary supremacy leads to an alternative theory of judicial review which significantly differs from both the ultra vires and common law theories.
MoreLong description:
In the late 1980s, a vigorous debate began about how we may best justify, in constitutional terms, the English courts’ jurisdiction to judicially review the exercise of public power derived from an Act of Parliament. Two rival theories emerged in this debate, the ultra vires theory and the common law theory. The debate between the supporters of these two theories has never satisfactorily been resolved and has been criticised as being futile. Yet, the debate raises some fundamental questions about the constitution of the United Kingdom, particularly: the relationship between Parliament and the courts; the nature of parliamentary supremacy in the contemporary constitution; and the possibility and validity of relying on legislative intent.
This book critically analyses the ultra vires and common law theories and argues that neither offers a convincing explanation for the courts’ judicial review jurisdiction. Instead, the author puts forward the theory that parliamentary supremacy – and, in turn, the relationship between Parliament and the courts – is not absolute and does not operate in a hard and fast way but, rather, functions in a more flexible way and that the courts will balance particular Acts of Parliament against competing statutes or principles. McGarry argues that this new conception of parliamentary supremacy leads to an alternative theory of judicial review which significantly differs from both the ultra vires and common law theories.
This book will be of great interest to students and scholars of UK public law.
MoreTable of Contents:
1. Introduction 2. Philosophical Hermeneutics 3. The Ultra Vires Theory and the Common Law Theory of Judicial Review 4. Themes of the Debate 5. Immanent Critique and the Theories of Juidical Review 6. The Principle of Parliamentary Sovereignty 7. The Constitutional Legitimacy of Judicial Review
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