Government has a legitimate interest in seeking to prevent and reduce error in the benefits system and in taking action to recover funds lost. And there is widespread pressure for the Department for Work and Pensions to do just that. However, creating systems capable of doing this work is fraught with challenges, including in terms of maintaining fairness and legality. Chief amongst them is the complexity of undertaking error detection work at the scale necessary for effectiveness without harming benefit recipients, who are often vulnerable and for whom benefits are an essential source of fina ..read more

*Editors’ note: This post is part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022. You can read the first post in the series here. Rising like an arguably rather dark phoenix from the ashes, the Bill of Rights Bill now appears back on the legislative agenda. Yet again, the repeal of the Human Rights Act 1998 (HRA) seems somewhat inevitable, unless cabinet will once again implode in turmoil. In this light, the potential of the common law to provide a system of rights protection of similar vigour to that of the HRA ..read more

Judgment was given in the famous Wednesbury case 75 years ago today, on 10th November 1947. Readers of this blog know full well the facts of the case, the judgment of Lord Greene (reported [1948] 1 KB 223), the mythical status of ‘Wednesbury unreasonableness’ and critiques thereof, such as Lord (previously Sir Robin) Cooke’s dislike of what he saw as Lord Greene’s circumlocution, a ‘retrogressive’ decision and the unnecessary use of ‘the geographical epithet’ of Wednesbury.   Contrary to that view, however, there is more to consider on this anniversary about the p ..read more

This piece considers two recent decisions – one by the Court of Appeal (“CA”): D4 v Secretary of State for the Home Department [2022] EWCA Civ 33, and the other by the Supreme Court (“SC”): R (The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 (“PRCBC”). At a general level, the cases raised similar issues: both involved challenges to delegation legislation on grounds that they were ultra vires; both related to citizenship – D4 about its deprivation, PRCBC about its conferral. This piece seeks to draw some threads from t ..read more

The Novak Djokovic saga, which eventually resulted in the world number one male tennis player’s deportation from Australia, became a matter of possible electoral significance in Australia and led to protests on the streets of Belgrade. After successfully challenging the Australian Border Force’s original decision to cancel his visa (Djokovic v Minister for Home Affairs), the Australian immigration minister chose to exercise a discretionary power to cancel Djokovic’s visa. Djokovic was unsuccessful in challenging this decision (Djokovic v Minister for Immigration, Citizenship, Migrant Services ..read more

No, this is not a paper on covid rule-breaking by UK ministers.  Instead it analyses the judgment of 20th December 2021 in Re Napier, on what happens when Northern Ireland ministers refuse to comply with their legal duties.  The particular duty was the duty to participate in meetings of the North-South Ministerial Council (the NSMC).    Given that the Democratic Unionist Party ministers had already been found to be acting unlawfully by failing to participate, what would happen when the case came back before the court, and the court was asked to order them to stop acti ..read more

This is the second in a series of two posts on the remedial reforms proposed in the Judicial Review and Courts Bill (2021), which provide for courts in judicial review proceedings to grant suspended and prospective-only quashing orders. The first post considered the general case for reform, arguing reform is justified so as to reassert a remedial approach characterised by flexibility and which calibrates remedial responses based on reasoned consideration of relevant factors. Part 1 also explained that while neither prospective-only nor suspended relief are unknown to the common law, the refor ..read more

There are many claims made about decision-making in judicial review. The way that judges do decide, or ought to decide, cases is the subject of lively debate within the political, policy, practitioner, and academic spheres. For instance, in recent years there have been prominent warnings of the ‘conceptual growth or overgrowth’ of judicial review and of judicial review making ‘significant inroads into executive discretion.’ Such claims, and the debates which they provoke and influence, have consequences. They can shape how courts approach cases, how litigants litigate, and how the government ..read more

The legislative programme of this Government has—unsurprisingly, given its widely stated reformist ambitions—attracted close attention from those interested in constitutional matters. Several bills have been introduced into this Parliament that have (rightly) been the subject of extensive commentary and interest in this respect, including the Judicial Review and Courts Bill, the Dissolution and Calling of Parliament Bill, and the European Union (Withdrawal Agreement) Act 2020. However, there is another legislative initiative which has attracted very little commentary from those interested in ..read more

The current blog post considers the failure of the current judicial review reform process, from IRAL onwards, to give proper consideration to compensation for unlawful government acts.  This has been less discussed than the discretion over the temporal effect of quashing orders (which I considered here).  It may be that the Realpolitik of this omission is too obvious to need extended discussion (given the notorious failure of the Law Commission’s project on public authority liability in the 2000s).  Even so, IRAL missed a valuable opportunity to consider the question again.&nbs ..read more