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28 results

Page 1 of 2

  • Anxious Scrutiny in Hong Kong Administrative Law: Origins, Adaptations, and Techniques

  • Michael Ramsden
  • Journal:
    Asian Journal of Comparative Law / Volume 19 / Issue 2 / August 2024
    Published online by Cambridge University Press:
    30 April 2024, pp. 348-368
    • Article
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  • ‘Anxious scrutiny’ has become one of the most used terms within the lexicon of judicial review throughout the common law world, including Hong Kong, yet surprisingly remains understudied in the scholarly literature. In contrast to the considerable body of literature on substantive review of discretion in relation to proportionality and Wednesbury unreasonableness as rival standards of review, there is still much to explore in relation to the foundation, purpose, and techniques of anxious scrutiny review, including how the concept may have come to depart from its English roots in other common law jurisdictions. Using Hong Kong as a case study, this article examines how anxious scrutiny has been received in an Asian common law jurisdiction, considering both the scope of application and the techniques used by judges under this standard. Through a detailed examination of the case law, it traces the origins and evolution of the standard and its future role within the sliding scale of substantive review within Hong Kong's system of public law.

Judicial Review of Administrative Action Across the Common Law World
  • Origins and Adaptation
  • Edited by Swati Jhaveri, Michael Ramsden
  • Published online:
    19 March 2021
    Print publication:
    18 March 2021
  • Research on comparative administrative law, in contrast to comparative constitutional law, remains largely underdeveloped. This book plugs that gap. It considers how a wide range of common law systems have received and adapted English common law to the needs of their own socio-political context. Readers will be given complex insights into a wide range of common law systems of administrative law, which they may not otherwise have access to given how difficult it would be to research all of the systems covered in the volume single-handedly. The book covers Scotland, Ireland, the USA, Canada, Israel, South Africa, Kenya, Malaysia, Singapore, Hong Kong SAR, India, Bangladesh, Australia and New Zealand. Comparative public lawyers will have a much greater range of common law models of administrative law - either to pursue conversations about their own common law system or to sophisticate their comparison of their system (civil law or otherwise) with common law systems.

  • 14 - English Administrative Law in Post-Handover Hong Kong

  • from Part VI - Origins and Adaptations in Asia
  • 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 255-272

  • Summary

    Prior to the handover, English principles of judicial review and caselaw were highly influential – and indeed, where relevant, binding - in colonial Hong Kong. This chapter first starts by tracing the influence of these principles on the colonial administrative order. It then proceeds to examine the continued relevance or applicability of English law following the Handover to China. It notes that the Hong Kong courts continue to draw considerably from English precedent in the construction of judicial review principles in the territory. However, there has also been a marked rise in the courts drawing from other epistemic communities in the definition and application of public law norms, so as to more appropriately reflect Hong Kong’s indigenous values and circumstances. This conceptual shift reflects the reality that it is the ‘common law of Hong Kong’ which prevails in Hong Kong after the Handover not the ‘common law of England’, thereby leading to a much richer use of comparative administrative law than existed during colonial times.

  • 4 - International Influences on English Judicial Review and Implications for the Exportability of English Law

  • from Part II - Origins and Adaptations of Judicial Review in England
  • 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 60-78

  • Summary

    A central theme in this volume is that any analysis on the differences between common law jurisdictions on judicial review principles, and the extent to which ‘importing’ jurisdictions have departed from their English roots, is attributed to multiple pressures occurring within an indigenous legal order. But alongside these indigenous considerations there has been increasing recognition that international factors are also coming to bear on the scope and application of domestic judicial review principles. Using English judicial review as its critical lens, this chapter considers the impact that sources of international law have had in the domestic courts. It then broadens the enquiry to a comparative analysis of dualism in judicial review in other common law jurisdictions. This analysis reveals that, in some cases, other jurisdictions have departed from the strictures of the dualist principle as conceived in the English courts so as to give greater recognition to international law within its system of administrative law. It finishes by arguing that the English courts can benefit from ‘importing’ more progressive approaches to unincorporated norms but that the indigenous turn in rights discourse may lead to an English assertion of normative autonomy from attempts at securing progressive convergence on the dualist question.

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