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

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.