Learning Outcomes
After attending this session, students should be
able to:
•  analyze the policy impact of judicial review
•  examine the different roles of Judges in
judicial review of administrative actions
•  review the theoretical and Constitutional Basis
of Judicial
•  illustrate the relationship between judicial
review and good governance
•  explain and apply the principle of
proportionality
•  reflect on how judges develop legal principles
Judicial Review Revisit
Benny Y. T. Tai
Associate Professor
Faculty of Law
University of Hong Kong
1
2
Issues
•  Policy Impact of Judicial Review
•  Roles of Judges in Judicial Review of
Administrative Actions
•  Theoretical and Constitutional Basis of
Judicial
•  Judicial Review and Good Governance
•  Proportionality
•  Judges and Legal Development
Policy Impact of Judicial Review
3
4
Judicial Review Figures
Year
Type of cases
1. Applications for JR considered by the
CFI
1.1. Application for leave refused
1.2. Application for leave granted
2. Full Hearing of JR cases by the CFI
2.1. Remedies not granted as
against the Administration
2.2. Remedies granted as against
the Administration
3. JR cases considered by the CA
3.1. Remedies not granted as
against the Administration
3.2. Remedies granted as against
the Administration
4. JR cases considered by the CFA
4.1. Remedies not granted as
against the Administration
4.2. Remedies granted as against
the Administration
2001
2002
2003
2004
2005
2006
2007
2008
2009
116
102
125
146
149
132
?
?
?
?
147
(130)
64
66
41
144
(119)
56
63
?
?
?
?
10
92
45
9
116
54
24
122
47
37
112
67
19
113
30
?
33
45
34
53
25
?
26
?
?
12
9
13
?
10
20
19
14
5
?
15
?
27
22
?
?
?
?
9
13
15
19
16
?
?
?
?
1
7
4
8
6
?
?
?
?
?
3
4
3
4
2
?
?
?
1
1
3
4
0
?
?
?
?
2
3
0
0
2
?
?
?
Roles of Judges in Judicial Review of
Administrative Actions
6
5
Chim Shing Chung v Commissioner of Correctional Services
(1995) 5 HKPLR 570); (1996) 6 HKPLR 313)
Chim Shing Chung v Commissioner of Correctional Services
(1995) 5 HKPLR 570); (1996) 6 HKPLR 313)
•  The prison authority found that some prisoners engaged in illegal
gambling.
•  This leads to problems. First of all, there is the general problem of
gambling inside the prison which might lead to quarrels and
arguments. Secondly, it might lead to pressure being brought to
bear on the prisoner who cannot pay up his debt. Thirdly, it might
lead to families of prisoners having problems caused to them by
their relative's debt.
•  The prison authority believed that if someone reads the horse
racing information on the day of the races, he might go off and
have a bet. Therefore, the prison authority decided that horse
racing information is fully available in prisons except on race
days. However, only the supplements were removed. If the
information was in the general body of the newspaper it would not
be removed.
•  A prisoner applied for judicial review to challenge the decision.
7
Rule 56 of the Prison Rules provides:
”Prisoners may receive books or periodicals
from outside the prison under such conditions
as the Commissioner may determine.”
8
The Judge Over Your Shoulder
Who is the judge?
The role of the Court
Citizens v. Administration
Litton
Liu
CFA (Li)
Sears
Court v. Administration
CFA (Ma)?
9
10
Relationship between Administrative Law and
Constitutional Law: Separation Thesis
Theoretical and Constitutional
Basis of Judicial Review
11
“Legal antipathy to political theory is likely to be
motivated by instinctive belief in the virtue of objectivity
in law, the belief that law should be kept as distinct as
possible from politics, and there is positive merit in
keeping a gulf between them...
On the plane of administrative law... rules are based upon
elementary concepts of legality, reasonableness and
fairness which are self-evident in their own right...
Although their natural home is in a liberal democracy,
there is no necessary reason why they should not be
observed under any regime, even if illiberal or
undemocratic. The central part of administrative law...has a
neutrality...”
Wade & Forsyth, Administrative Law (Oxford University
Press, 9th edn. 2004), p8-9
12
Relationship between Administrative Law and
Constitutional Law: Integration Thesis
ULTRA VIRES
“...the content of constitutional and administrative
law can only be properly understood against the
background political theory which a society
actually espouses, or against such a background
which a particular commentator believes that a
society ought to espouse.”
Craig, Public Law and Democracy in the United
Kingdom and in the United States of America
(Oxford: Clarendon Press, 1990), p. 1
13
14
The Orthodox understanding
of ultra vires
The Orthodox understanding
of ultra vires
•  judicial review is legitimated on the
ground that the courts are applying the
intent of the legislature
•  powers enjoyed by the administrative
agencies are always subject to certain
conditions contained in the enabling
legislation
•  the courts' function is to police the
boundaries stipulated by the legislature!
Criticisms:
1.  The doctrine is indeterminate
2.  Lack of reality
3.  Internal tension
4.  Difficulty to apply this doctrine to
justify the court's power to review
decisions of non-statutory bodies
5.  Judicial review does not have to be
built on parliamentary supremacy
15
16
Modified doctrine of ultra vires based on a
model of implied general legislative intent
Alternatives of the theoretical basis
of Judicial Review: Sources of Power
•  legislature is taken to intend that its legislation
conforms to the basic principles of rule of law,
fairness and justice which operates in a constitutional
democracy
•  as the legislature has taken no step to overturn the
extension and development of judicial review by
judges, it may reasonably be taken to have given a
tacit approval or delegated to the judiciary to develop
the principles of judicial review subject to the
recognition of legislative supremacy
•  judicial review has to be legitimized by this general
legislative intent
17
18
A common law based doctrine
of illegality or ultra vires
Constitution as the theoretical basis
of judicial review
•  principles of judicial review are in reality developed
by the courts and are creations of common law
•  when legislation is passed, the courts will impose the
controls which constitute judicial review which they
believe are normatively justified on the grounds of
justice, the rule of law, etc.
•  however, if the legislature does not like such control,
it is open to it to make this explicitly
•  is there any limitation on the court's power to develop
principles of judicial review except the possibility of
subsequent corrective legislative measures?
•  legislature grants powers to administrative
agencies within the context of the
constitutional setting and the court may
approach legislation on this basis
•  the court will review administrative decisions
without referring to any specific or general
legislative intent but the court's power to
review is also not without any constraint
•  what then are the constitutional principles
within a specific constitutional setting?
19
20
Rule of Law: legality, legal certainty,
minimum standards of both substantial and
procedural fairness
Alternatives of the theoretical basis
of Judicial Review: Legal Principles
Human Rights: the principle of
proportionality will be applied in cases
where human rights are involved
Good Governance
21
22
Judicial Review in Hong Kong
• Source of power of Judicial
Review
• Legal Principles of Judicial
Review
• Objective of Judicial Review
Judicial Review in Hong Kong
23
24
Special considerations in Hong Kong's
constitutional setting
•  a written constitution
•  legislative supremacy is not
recognized
•  judicial review recognised
•  a bill of rights
•  weak accountability
•  undemocratic political system
•  respectable and independent judiciary
•  general recognition of rule of law
Judicial Review and
Good Governance
25
26
Chief Justice's speech at
Ceremonial Opening of the legal Year 2007
Good Governance
“It would not be right for judicial review to
be viewed negatively as a hindrance to
government. On the contrary, it should be
seen as providing an essential foundation
for good governance under the rule of law.
… But I must reiterate that …courts are only
concerned with what is legally valid, and
what is not, in accordance with legal norms
and principles.
“public participation, transparency, the
accountability to the public and justice or
fairness are essential components of good
governance. Some of these components
are interconnected.”
Linda C. Reif, The Ombudsman, Good
Governance, and the International
Human Rights System (Leiden: M.
Nijhoff, 2004)
27
28
Ng Siu-tung and others v. HKSAR
FACV Nos. 1-3 of 2001)
Reflection on the nature of judicial
review from the Justifications for
Substantive Legitimate Expectation
29
Ng Siu-tung and others v. HKSAR
FACV Nos. 1-3 of 2001)
Decision of the Court Final Appeal (Minority judge,
Justice Bokhary PJ):
“The essential function of the doctrine commonly called
‘the doctrine of legitimate expectation’ is to give judicial
relief against abuse of executive power. It was developed
by the courts as a further means of upholding the rule of
law by ensuring that executive powers are used and not
abused. Whether they are enforcing legitimate expectations
procedurally or substantively, the courts are acting to
accord fairness.
…There is another reason for it. As the executive itself
would probably be the first to recognise, it surely
facilitates the task of governance that people feel able to
put their faith in what their government says and does. ”
31
Decision of the Court Final Appeal (Majority):
“The concept of ‘legitimate expectation’ … forms part of the
administrative law of Hong Kong…, the doctrine is an important
element in the exercise of the court's inherent supervisory
jurisdiction to ensure, first, that statutory powers are exercised
lawfully and are not abused and, secondly, that they are exercised so
as to result in administrative fairness in relation to both procedural
and substantive benefits…in the absence of any overriding reason of
law or policy excluding its operation, situations may arise in which
persons may have a legitimate expectation of a substantive outcome
or benefit, in which event failing to honour the expectation may, in
particular circumstances, result in such unfairness to individuals as
to amount to an abuse of power justifying intervention by the
court...a legitimate expectation arises as a result of a promise,
representation, practice or policy made, adopted or announced by or
on behalf of government or a public authority.”
30
See also the benefits from
a right to Reason
Benefits of giving reason:
“Thirdly, the reasons given by the Tribunal will promote
and enhance consistency in its decision making and assist
the law enforcement and prosecuting authorities. I would
observe that broad consistency in approach is important.
Fourthly, the giving of reasons would demonstrate to the
community that the Tribunal is functioning properly and this
would engender public confidence.“
(Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority FACC
No. 1 of 1998)
32
Good governance, administrative powers
and judicial review
•  How administrative powers can be
exercised to satisfy the requirements of
good governance?
•  Can judicial review be considered not just
as a check on administrative powers to
prevent abuse of powers but also as a tool
to enhance good governance?
•  Is proportionality a principle that can
enhance good governance?
Proportionality
as a principle of good governance
34
33
R v. Secretary of State for Home Affairs, ex parte
Brind [1991] AC 69
Council of Civil Service Unions v. Minister for the
Civil Services [1985] A.C. 374, per Lord Diplock
"...possible adoption in the future of the principle
of ‘proportionality’ which is recognised in the
administrative law of several of our fellow
members of the European Economic
Community”
But rejected by R v. Secretary of State for Home
Affairs, ex parte Brind [1991] AC 69
35
•  The Secretary of State for the Home Department exercised his
powers under cl 13 of the licence and agreement between the
Secretary of State and the British Broadcasting Corp (the BBC)
and s 29 of the Broadcasting Act 1981 issued directives to the
television and radio authorities that they should be forbidden
knowingly to allow a member or supporter of a recognised
terrorist organisation to have direct appearance on television
themselves making their statements live.
•  The Home Secretary has imposed this restriction because,
supported by a majority of the members of the House of
Commons, he believed that the live appearances of terrorist
members and supporters cause outrage and fear and to give a
wholly false impression of the strength and legitimacy of
terrorism, thus encouraging terrorism which is a foul crime.
•  Had the Home Secretary acted ultra vires because his decision
was Wednesbury unreasonable or that he had acted “in a
disproportionate manner”?
!
36
R v. Secretary of State for Home Affairs, ex parte
Brind [1991] AC 69
R v. Secretary of State for Home Affairs, ex parte
Brind [1991] AC 69
Lord Lowry, House of Lords:
“…there is no authority for saying that proportionality in the
sense in which the appellants have used it is part of the
English common law…for several reasons. (1) The decisionmakers, very often elected, are those to whom Parliament has
entrusted the discretion and to interfere with that discretion
beyond the limits as hitherto defined would itself be an abuse
of the judges' supervisory jurisdiction. (2) The judges are not,
generally speaking, equipped by training or experience, or
furnished with the requisite knowledge and advice, to decide
the answer to an administrative problem where the scales are
evenly balanced, but they have a much better chance of
reaching the right answer where the question is put in a
Wednesbury form. The same applies if the judges' decision is
appealed.”!
Lord Lowry, House of Lords:
“(3) Stability and relative certainty would be jeopardised if
the new doctrine held sway, because there is nearly always
something to be said against any administrative decision and
parties who felt aggrieved would be even more likely than at
present to try their luck with a judicial review application both
at first instance and on appeal. (4) The increase in applications
for judicial review of administrative action (inevitable if the
threshold of unreasonableness is lowered) will lead to the
expenditure of time and money by litigants, not to speak of the
prolongation of uncertainty for all concerned with the
decisions in question, and the taking up of court time which
could otherwise be devoted to other matters. The losers in this
respect will be members of the public, for whom the courts
provide a service.”
37
!
38
R v. Secretary of State for Home Affairs, ex parte
Brind [1991] AC 69
Lord Lowry, House of Lords:
“…there can be very little room for judges to operate an
independent judicial review proportionality doctrine in the
space which is left between the conventional judicial
review doctrine and the admittedly forbidden appellate
approach. To introduce an intermediate area of
deliberation for the court seems scarcely a practical idea,
quite apart from the other disadvantages by which, in my
opinion, such a course would be attended.”
Infiltration of Proportionality
in other public law matters
and other principles of Judicial Review
!
39
40
A Solicitor v. The Law Society of Hong Kong
FACV No. 7 of 2003)
A Solicitor v. The Law Society of Hong Kong
FACV No. 7 of 2003)
•  A Solicitor, T, was alleged to have breached provisions of the
Solicitors' Practice Rules and was convicted by the Solicitors
Disciplinary Tribunal.
•  Legal Practitioners Ordinance Cap. 159 provides that an appeal
shall lie to the Court of Appeal against any order of the Tribunal.
•  Section 13(1) of the Ordinance includes the provision that “the
decision of the Court of Appeal on any such appeal shall be
final”.
•  T exercised his right of appeal under s. 13(1). The Court of
Appeal by a majority dismissed the appeal. That Court (by the
same majority), dismissed T’s application for leave to appeal to
the Court of Final appeal. T applied to the appeal the CFA.
•  Does the Court of Final Appeal have jurisdiction to entertain
the appeal ?
Article 82 of the Basic law:
“The power of final adjudication of the
Hong Kong Special Administrative Region
shall be vested in the Court of Final Appeal
of the Region, which may as required invite
judges from other common law jurisdictions
to sit on the Court of Final Appeal.”
41
A Solicitor v. The Law Society of Hong Kong
FACV No. 7 of 2003)
42
A Solicitor v. The Law Society of Hong Kong
FACV No. 7 of 2003)
Decision of the Court of Final Appeal:
“Courts do not have inherent appellate jurisdiction. Appeals are
creatures of statutes, whether they be appeals from statutory
tribunals to the courts or appeals from lower courts to higher
courts. (In this case, one is not concerned with and need not discuss
the right to seek judicial review from the courts). The legislature in
providing for appeals in statutes may limit recourse to the Court for
final adjudication and thus, may limit its power of final
adjudication to appeals permitted by such statutes. But limitation
cannot be imposed arbitrarily by the legislature. The limitation
imposed must pursue a legitimate purpose and there must be
reasonable proportionality between the limitation and the
purpose sought to be achieved. These dual requirements will be
referred to collectively as ‘the proportionality test’.”
43
Decision of the Court of Final Appeal:
“Does the finality provision in s. 13(1) of the Ordinance satisfy
the proportionality test? If it does not, it would be inconsistent
with the Basic Law and would be unconstitutional and invalid.
Section 13 provides for a statutory right of appeal from a
decision of the Tribunal to the Court of Appeal. Having been
entrusted with the task by statute, the Tribunal's decision on
matters of professional discipline of solicitors carries
considerable weight and the Court of Appeal will only interfere
if satisfied that the Tribunal was plainly wrong.
…The total ban imposed by the finality provision where
questions of this order of importance arise cannot, in my view,
be said to be reasonably proportionate to any legitimate
purpose which may underlie the finality provision.”
44
Mok Charles Peter v. Tam Wai Ho and others
FACV No. 8 of 2010
Mok Charles Peter v. Tam Wai Ho and others
FACV No. 8 of 2010
•  In 2008, in the elections to the Legislative Council, Tam was
declared to be elected to the Council for the Information
Technology (IT) functional constituency.
•  Mok, the rival candidate lodged an election petition to the Court
of First Instance under the Legislative Council Ordinance, Cap.
542 seeking an order that he be instead declared the winner for
the IT functional constituency.
•  Mok’s election petition was dismissed.
•  Mok sought to appeal from this decision to the Court of Appeal.
•  The Court of Appeal dismissed the appeal on the ground that the
Court of Appeal lacked jurisdiction, in that s. 67(3) of the
Ordinance barred any appeal from the CFI on an election petition.
•  Section 67(3) provides that “the!decision!of!the!Court!of!First!
Instance!shall!be!final!as!to!the!ma6ers!in!issue.”!
•  Mok appealed to the CFA on the decision of the CA.
•  Are the provisions of s. 67(3) unconstitutional?
Decision of the Court of Final Appeal:
“The proportionality test, which is a well known test in our courts,
consists of the following analysis in respect of any restriction or
limitation:- (a) The restriction or limitation must pursue a legitimate
aim. (b) The restriction or limitation must also be rationally
connected that legitimate aim. (c) The restriction or limitation must
also be no more than is necessary to accomplish that legitimate aim.
…it is crucial at the outset to bear in mind that an election petition
engages the public interest and not only the interests of the election
protagonists themselves. The public interest here consists of the
electorate and indeed the community as a whole in having in place a
properly and legally elected legislature. Further, an election petition
involves substantive rights, and not merely procedural rights. These
46
substantial rights are political in nature.”
45
Mok Charles Peter v. Tam Wai Ho and others
FACV No. 8 of 2010
A Solicitor v. The Law Society of Hong Kong
FACV No. 24 of 2007
Decision of the Court of Final Appeal:
“…is s.67(3) in restricting the right of appeal in election petitions
more than is necessary to achieve that purpose? Here, it is important
to understand the nature of the restriction contained in s.67(3). That
provision not merely restricts an appeal, it actually eliminates it:
under no circumstances can an appeal be launched.
…in my judgment, the burden to demonstrate that the restriction in
s.67(3) of LCO satisfies the proportionality test, has not been
discharged. It therefore follows that s.67(3) of the LCO must be
declared unconstitutional as being inconsistent with Art.82 of the
Basic Law (insofar as the finality aspect is concerned). It may be that
suitable changes can be made to the legislation to ensure that any
restrictions or limitations on the right of appeal are indeed no more
than necessary, but this is a matter for the Government and the
Legislature to consider, taking into account no doubt those
provisions in comparable legislation to which reference has been
made.”
47
Decision of the Court of Final Appeal:
“…the standard of proof for disciplinary proceedings in
Hong Kong is a preponderance of probability….The more
serious the act or omission alleged, the more inherently
improbable must it be regarded. And the more inherently
improbable it is regarded, the more compelling will be
the evidence needed to prove it on a preponderance of
probability. If that is properly appreciated and applied in a
fair-minded manner, it will provide an appropriate
approach to proof in disciplinary proceedings. Such an
approach will be duly conducive to serving the public
interest by maintaining standards within the professions
and the services while, at the same time, protecting their
members from unjust condemnation.”
48
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
Secretary for Security v. Sakthevel Prabakar
FACV No. 16 of 2003
Decision of the Court of Final Appeal:
“To him (a claimant under the Convention Against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment), life and limb are in
jeopardy and his fundamental human right not to be
subjected to torture is involved. Accordingly, high
standards of fairness must be demanded in the making
of such a determination.”
49
Nadarajah, Abdi v Secretary of State for the Home
Department [2005] EWCA Civ 1363
Decision of the Court of Appeal, United Kingdom:
“The search for principle surely starts with the theme that is current through
the legitimate expectation cases. It may be expressed thus. Where a public
authority has issued a promise or adopted a practice which represents how it
proposes to act in a given area, the law will require the promise or practice
to be honoured unless there is good reason not to do so. What is the principle
behind this proposition? It is not far to seek. It is said to be grounded in
fairness, and no doubt in general terms that is so. I would prefer to express it
rather more broadly as a requirement of good administration, by which
public bodies ought to deal straightforwardly and consistently with the
public. …Accordingly a public body's promise or practice as to future
conduct may only be denied, and thus the standard I have expressed may
only be departed from, in circumstances where to do so is the public body's
legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate
response (of which the court is the judge, or the last judge) having regard to
a legitimate aim pursued by the public body in the public interest. The
principle that good administration requires public authorities to be held to
their promises would be undermined if the law did not insist that any failure
or refusal to comply is objectively justified as a proportionate measure in the
circumstances.”
51
Decision of the Court of Final Appeal:
“…there is no absolute right to have counsel address the
tribunal or to question witnesses, any such entitlement
depending on whether such procedures are required as a matter
of fairness. The matters [to be considered] are: the seriousness
of the charge and potential penalty; whether any points of law
are likely to arise; the capacity of the individual to present his
own case; procedural difficulties; the need for reasonable speed
in making the adjudication; and the need for fairness among the
individuals concerned…no list of such factors can be
comprehensive. The common law principles of fairness operate
flexibly, requiring the tribunal to respond reasonably to the
requirements of fairness arising in each case, balancing any
competing interests and considering what, if any, limits may
proportionately be imposed on legal representation in
consequence.“
50
Nadarajah, Abdi v Secretary of State for the Home
Department [2005] EWCA Civ 1363
Decision of the Court of Appeal, United Kingdom:
“…Proportionality will be judged, as it is generally to be judged, by
the respective force of the competing interests arising in the case.
Thus where the representation relied on amounts to an unambiguous
promise; where there is detrimental reliance; where the promise is
made to an individual or specific group; these are instances where
denial of the expectation is likely to be harder to justify as a
proportionate measure. …On the other hand where the government
decision-maker is concerned to raise wide-ranging or "macropolitical" issues of policy, the expectation's enforcement in the courts
will encounter a steeper climb. All these considerations, whatever
their direction, are pointers not rules. The balance between an
individual's fair treatment in particular circumstances, and the
vindication of other ends having a proper claim on the public interest
(which is the essential dilemma posed by the law of legitimate
expectation) is not precisely calculable, its measurement not exact.”
52
Good Governance, Judicial Review
and Proportionality
The Principle of Proportionality
1.  What are the interests of the citizens affected by
the administrative decision? What is the nature
of these interests?
2.  What is the specific purpose of that
administrative decision? Is that a legitimate
purpose?
3.  Is there a rational connection between the
administrative action and the purpose?
53
Good Governance, Judicial Review
and Proportionality
The Principle of Proportionality
5.  Can the social benefits gained from achieving
the purpose by the administrative decision
outweigh the losses suffered by citizens?
•  How far should the evaluation on gains and
losses by the administrative body or the law
making body be relied upon?
55
Good Governance, Judicial Review
and Proportionality
The Principle of Proportionality
4.  Is the administrative decision necessary for
achieving the purpose?
•  Is there any alternative that can achieve the
purpose but affect citizens’ interests to a
lesser degree? OR
•  Is the administrative decision a measure that
imposes the least adverse impact on the
citizen’s interests?
•  How far should the expertise of the
administrative body making the decision be
relied upon?
54
Yook Tong Electric Company Limited v. Commissioner for
Transport HCAL 94/2002
56
Reasons for Proportionality
•  a more structured and transparent form of
judicial control
•  better chance to get a fair and just
outcome
•  not improper overstepping into the
jurisdiction of the administration
Judges and Legal Development
57
(1) Challenges to legal principles occur when judges perceive
administrative pressures to be rendering legal principles
inadequate to meet regulatory needs.
(2) Administrative pressures influence legal development only
insofar as they can be expressed in a legal form.
(3) After this initial challenge a ‘rational reconstruction’ may
occur whereby new legal principles evolve which are perceived
to better meet regulatory needs.
(4) The effectiveness of the new principles in overcoming
further perceived regulatory problems depends on the
sophistication of the court’s information mechanisms – i.e. the
extent to which courts can expertly make an assessment of the
character of administration.
(5) Legal evolution occurs due to the continual undermining
of legal principles by environmental factors which gradually
intrude into judicial thinking.
David Jabbari, “Critical Theory in Administrative Law,” (1994)
Oxford Journal of Legal Studies Vol. 14, No. 2, pp. 189-215, at
202.
59
58
COURT
Legislature
Laws
Executive
PEOPLE
Intuition
Power of
Judicial
Review of
Administrative
Actions
60
Reference
Readings
•  Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill,
Hong Kong Administrative Law (Hong Kong: Lexis
Nexis Butterworths, 2010), Chapter 1 and Chapter 11
•  Mark Elliott, “Proportionality and Deference: The
Importance of a Structured Approach,” in Forsyth,
Elliott, Ramsden and Scully-Hill (eds.) Effective
Judicial Review: A Cornerstone of Good Governance
(Oxford University Press, 2010)
61
•  Oliver, “Is the Ultra Vires Rule the Basis of Judicial
Review?” [1987] PL 543
•  Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires
Doctrine, the Sovereignty of Parliament and Judicial
Review” (1996) 55 CLJ 122
•  Craig, “Ultra Vires and Foundations of Judicial Review” [1998]
CLJ 63
•  Craig “Competing Models of Judicial Review’ [1999] PL 428
•  Jowell, “Of Vires and Vacuums: The Constitutional Context of
Judicial Review” [1999] PL 448
•  Jowell, “Beyond the Rule of Law: Towards Constitutional Judicial
Review” [2000] PL 671
•  Philip A. Joseph, “The Demise of Ultra Vires- Judicial Review in
the New Zealand Courts” [2001] PL 354
•  Bradley Selway, “The Principle Behind Common Law Judicial
Review of Administrative Action – The Search Continues” (2002)
30 Fed L Rev 217
62