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4 results

  • A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation

  • Edward Lui
  • Journal:
    Legal Studies , FirstView
    Published online by Cambridge University Press:
    03 October 2024, pp. 1-17
    • Article
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  • The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

The Cambridge Handbook of Natural Law and Human Rights
  • Edited by Tom Angier, Iain T. Benson, Mark D. Retter
  • Published online:
    03 November 2022
    Print publication:
    17 November 2022
  • This Handbook provides an intellectually rigorous and accessible overview of the relationship between natural law and human rights. It fills a crucial gap in the literature with leading scholarship on the importance of natural law as a philosophical foundation for human rights and its significance for contemporary debates. The themes covered include: the role of natural law thought in the history of human rights; human rights scepticism; the different notions of 'subjective right'; the various foundations for human rights within natural law ethics; the relationship between natural law and human rights in religious traditions; the idea of human dignity; the relation between human rights, political community and law; human rights interpretation; and tensions between human rights law and natural law ethics. This Handbook is an ideal introduction to natural law perspectives on human rights, while also offering a concise summary of scholarly developments in the field.

  • 17 - The Creation of Australian Administrative Law

  • from Part VII - Origins and Adaptations in Australasia
  • Edited by Swati Jhaveri, National University of Singapore, Michael Ramsden, The Chinese University of Hong Kong
  • Book:
    Judicial Review of Administrative Action Across the Common Law World
    Published online:
    19 March 2021
    Print publication:
    18 March 2021, pp 309-326

  • Summary

    Ultra vires doctrine has declined in importance in Australia in tandem with the rise of constitutional principles in judicial review of administrative action. The Australian Constitution creates an entrenched right of judicial review in the original jurisdiction of the High Court. This right has led to the development of a conception of judicial review that is anchored on separation of powers principles but has not incorporated the ultra vires doctrine. This constitutional approach gained ascendancy in Australia not long after the ultra vires/common law debate arose in the United Kingdom and led Australian courts down a path that is both different and similar. The similarity lies in the issues Australian courts have faced, such as the doctrinal basis of judicial review, or whether an overarching concept might provide a coherent theoretical framework. The difference of the Australian experience lies in the terminology adopted in Australian law, such as their adoption and refinement of jurisdictional error even though that concept was disclaimed by UK courts. When the constitutional overlay of Australian is stripped away, the difference in approach to the UK clearly lessens.

  • 19 - Procedural Fairness, Procedural Impropriety and Natural Justice

  • from Part III - The Grounds of Judicial Review
  • Stephen Thomson, City University of Hong Kong
  • Book:
    Administrative Law in Hong Kong
    Published online:
    12 December 2018
    Print publication:
    11 October 2018, pp 247-272

  • Summary

    This chapter gives a detailed discussion of procedural fairness, procedural impropriety and natural justice as grounds of judicial review. It begins with the right to a fair hearing, including the right to an oral hearing and the circumstances in which such a right can be asserted. It then proceeds to examine the right to representation, including legal representation. An overview of the duty of disclosure is given, before the duty to give adequate reasons is examined. Finally, bias and insufficient impartiality are explored, both as encountered in judges and other adjudicators, or in administrative decision-makers.