The Scope and Intensity of Substantive Review

Inspired by the work of Professor Michael Taggart, this collection of essays from across the common law world is concerned with two separate but related themes. First, to what extent and by what means should review on substantive grounds such as unreasonableness be expanded and intensified? Jowell, Elliott and Varuhas all agree with Taggart that proportionality should not 'sweep the rainbow', but propose different schemes for organising and conceptualising substantive review. Groves and Weeks, and Hoexter evaluate the state of substantive review in Australia and South Africa respectively.

The second theme concerns the broader (Canadian) sense of substantive review including the illegality grounds, and whether deference should extend to these grounds. Cane and Aronson consider the relevance and impact of different constitutional and doctrinal settings. Wilberg and Daly address questions concerning when and how deference is to operate once it is accepted as appropriate in principle.

Rights-based review is discussed in a separate third part because it raises both of the above questions. Geiringer, Sales and Walters examine the choices to be made in settling the approach in this area, each focusing on a different dichotomy.

Taggart's work is notable for treating these various aspects of substantive review as parts of a broader whole, and for his search for an appropriate balance between judicial scrutiny and administrative autonomy across this entire area. By bringing together essays on all these topics, this volume seeks to build on that approach.

1. Introduction
Mark Elliott and Hanna Wilberg
Part A: Modern Extensions of Substantive Review
2. Modern Extensions of Substantive Review: A Survey of Themes in Taggart's Work and in the Wider Literature
Mark Elliott and Hanna Wilberg
3. Proportionality and Unreasonableness: Neither Merger nor Takeover
Jeffrey Jowell
4. From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification
Mark Elliott
5. Against Unification
Jason NE Varuhas
6. Substantive (Procedural) Review in Australia
Matthew Groves and Greg Weeks
7. A Rainbow of One Colour? Judicial Review on Substantive Grounds in South African Law
Cora Hoexter
Part B: Deference on Questions of Law?
8. Deference on Questions of Law: A Survey of Taggart's
Contribution and Themes in the Wider Literature
Hanna Wilberg and Mark Elliott
9. Judicial Control of Administrative Interpretation in Australia and the United States
Peter Cane
10. Should We Have a Variable Error of Law Standard?
Mark Aronson
11. Deference on Relevance and Purpose? Wrestling with the Law/Discretion Divide
Hanna Wilberg
12. The Struggle for Deference in Canada
Paul Daly
Part C: Rights-Based Review
13. Process and Outcome in Judicial Review of Public Authority Compatibility with Human Rights:
A Comparative Perspective
Claudia Geiringer
14. Crown Powers, the Royal Prerogative and Fundamental Rights
Philip Sales
15. Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law
Mark D Walters

“[an] illuminating collection of essays” –  Lord Carnwath (Youssef v Foreign Secretary, UK Supreme Court, 2016),

“It seems to me that this book is best seen as a very well-crafted statement of the "state of play" in intensity of review across the common law world. The chapters summarising the past work of Taggart and other important scholars in the area provide a useful entry point to those not entirely familiar with this corner of administrative law scholarship, and the rest of the book expands on that foundation in many different (and interesting) directions, in ways that will be useful to newcomers and experienced administrative lawyers alike.” –  Edward Clark, Faculty of Law, Victoria University of Wellington, Public Law