Standing and Civic Virtue

Here’s a puzzle about standing. Suppose you’re a resident of, say, London. You love all things herpetological. You’re even the secretary of the local Herpetological Society (a real thing, by the way). You hear that the local council plans to build a power plant on public land – land which also happens to be one of the few remaining habitats of the endangered smooth snake (also a real thing). Incensed at the threat to the environment, and after duly trying to get the council to change its mind, you seek leave to apply for judicial review of the decision. To succeed, you’ll need to show you have “standing”. The test for standing in England and Wales is a “sufficient interest” in the matter to which the application relates. Other common law jurisdictions have similar tests.

How will a court decide whether you have a sufficient interest in the matter? Continue reading “Standing and Civic Virtue”

Standing and the Compositional Fallacy

The Rose Theatre was the sight of the first performances of some of Shakespeare’s plays. The remains of the theatre were unearthed in London in the late 1980s. Shortly after a group of citizens formed the Rose Theatre Trust Company to help protect what was left of the theatre. The Trust asked the Secretary of State to ‘list’ the theatre, which would have given it some protection from development and interference. The Secretary of State refused, however, and the trust applied for judicial review of the Secretary of State’s refusal. In one of the more famous cases in English administrative law, Scheimann J held that trust lacked standing to make its application Continue reading “Standing and the Compositional Fallacy”

Entrenching and Undercutting

Nick Barber has an article titled ‘Why Entrench?’ coming out in the International Journal of Constitutional Law (available on SSRN). Among other things, the article is about the kinds of entrenchment there are, the reasons there are for entrenchment, and how the two match up. I really like the piece: it’s clear and persuasive, with some fresh examples and a useful typology. Here I want to explore a point that Barber hints at, but doesn’t get into. Continue reading “Entrenching and Undercutting”

Why Codify?

Britain is always tinkering with its constitution. Sometimes it talks about a more radical change: constitutional codification. Over the past few years, talk of constitutional codification has grown a little more serious. High-profile committees, centres, and scholars have spent a lot of time and energy discussing the issue. Sophisticated reports have been produced (see here and here). Articles have been written.

But I still wonder: what difference would codifying the constitution actually make? Continue reading “Why Codify?”

Constitutional and Quasi-Constitutional Statutes

Some statutes have ‘constitutional’ or ‘quasi-constitutional’ status. What is the legal significance of a statute’s constitutional or quasi-constitutional status? The answer is different in different jurisdictions. In Britain, Canada, and some other jurisdictions, the answers are different than they once were. Continue reading “Constitutional and Quasi-Constitutional Statutes”

Mercy and Judicial Review in the Commonwealth

Judges in Commonwealth jurisdictions are increasingly willing to review the executive’s decisions to grant or refuse mercy (ie, decisions to grant or refuse a request for a pardon or remission of a sentence for a criminal offence). Here I want to sketch the developments and mention a few interesting differences and commonalities. I’ll focus on the Caribbean States and India, where most of the action has been.

Continue reading “Mercy and Judicial Review in the Commonwealth”

Fetters on Prerogative Powers

Suppose you have a statutory power, which you decide to exercise in a certain way from now on, come what may. Maybe your decision takes the form of a policy. Maybe it takes the form of an agreement. Either way, a British or Canadian court would look at your decision very carefully. ‘Fetters’ on statutory powers – ie, commitments as to whether and how to use statutory powers – are lawful only under stringent conditions. Now substitute ‘the Crown’ for ‘you’ and ‘prerogative power’ for ‘statutory power’. Does anything change? Continue reading “Fetters on Prerogative Powers”