Legal Studies Research Paper Series Vol. 4, No. 8

The Faculty has published Volume 4 Number 8 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Christopher Forsyth: The Rock and the Sand: Jurisdiction and Remedial Discretion (31/2013)

This article emerges from the tension between two conflicting fundamental propositions in modern administrative law. On the one hand there “are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled … to live under the rule of law, not the rule of discretion.” And on the other hand all the remedies available in the application for judicial review (except damages). Thus an applicant who establishes that a decision is legally flawed may be denied the fruits of that victory by the judge’s refusal to grant an appropriate remedy. But in HM Treasury v Ahmed & Ors.No 2 [2010] UKSC 5 the Supreme Court held once a court had concluded that an act was invalid and so void, it could not thereafter lend that invalid act legal effect de jure or de facto through the exercise of remedial discretion. This crucial conceptual breakthrough significantly restricts the role of remedial discretion has been significantly restricted. The consequences of this are explored including the public interest in avoiding chaos that might otherwise sometimes result if relief is not refused, whether breach of adventitious duties should lead to invalidity and, more radically, whether a class of voidable administrative acts should be recognised.

Mark Elliott: Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place (33/2013)

This working paper is the precursor to a chapter I am writing for an edited collection on substantive judicial review. In this working paper, I argue against the two dominant schools of thought in this area, according to which substantive review is either bifurcated (by reference to the reasonableness and proportionality doctrines) or the preserve only of the proportionality doctrine. I go on to argue that the existing debate places undue emphasis upon doctrinal considerations, and that a better approach is to place the concept of justification centre-stage. I then develop a notion of justification around two ideas of deference, which are concerned respectively with the allocation to the decision-maker of a justificatory burden and the determinination by the court of whether that burden has been discharged.

Neil Andrews: Accessible, Affordable, and Accurate Civil Justice - Challenges Facing the English and Other Modern Systems (35/2013)

Modern legal systems, including the English, emphasise the need to promote mediation, uphold arbitration (which bypasses the courts), and achieve settlements. These are regarded as preferable to lengthy court proceedings culminating in trial. In England the Jackson reforms of April 2013 aim to control costs and stream-line proceedings. However, it is here argued that the challenges of promoting affordability and accessibility must not be permitted to undermine accuracy and that public adjudication in the courts of civil claims, including clarification of points of law, remain important for the vitality and health of the legal system. Inaccurate judicial decision-making would be unacceptably rough justice. It will be shunned. Furthermore, although mediation and arbitration have their place, both have their dangers, if they cause public adjudication to become too scarce or unreliable. For neither mediation nor arbitration involves public judgment of disputed matters of fact and law.

James C. Hathaway & Jason Pobjoy: Queer Cases Make Bad Law (28/2013)

Do “queer cases” - like proverbial “hard cases” - make bad law?

In this article, we take a careful look at how common law courts have addressed the asylum claims of homosexuals fleeing anti-gay prosecutions and violence in their home countries. Two top courts - the High Court of Australia, and the Supreme Court of the United Kingdom - have now tackled the question in decisions hailed as major victories for both gay rights, and for the continuing vitality of the Refugee Convention itself.

In these recent decisions, both courts struck down a doctrine under which gay claims to asylum had been rejected on the grounds that the applicants could - and should - “be discreet” about their sexuality, and thereby avoid the risk of being persecuted at home. In an extraordinary passage that has attracted significant public attention, Lord Rodger of the new UK Supreme Court asserted that “just as male heterosexuals are to be free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically colored cocktails and talking about boys with their straight female mates”.

While these decisions are clearly liberating (indeed, exciting), this article provides the first critical assessment of their impact on international refugee law as a whole. We suggest that to reach their preferred result, the Australian and UK courts ran roughshod over the duty to find a “well-founded fear” of future persecution; that they failed clearly to understand the real human rights costs of the enforced concealment that so-called “discreet” homosexuals face; and that by finding that the Convention’s requirement to show that risk “for reasons of” a form of protected status was met when risk follows only from going to concerts, drinking cocktails, or engaging in “boy talk” the courts severed the established - and critically important - link between refugee law and non-discrimination norms.

We offer an alternative theory of how international refugee law can and should embrace the claims of sexual minorities who can avoid serious harm only by accepting self-repression. We believe that such claims should be assessed on the basis of the real, forward-looking risk of serious psychological harm that ensues in such circumstances. We also seek to open a discussion about just when risks that follow not from sexual orientation as such, but rather from actions vaguely (perhaps even stereotypically) associated with homosexuality can honestly be said to be threats “for reasons of” one’s sexuality.

Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.