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The Regulatory StateConstitutional Implications$
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Dawn Oliver, Tony Prosser, and Richard Rawlings

Print publication date: 2010

Print ISBN-13: 9780199593170

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199593170.001.0001

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Changed Conditions, Old Truths: Judicial Review in a Regulatory Laboratory

Changed Conditions, Old Truths: Judicial Review in a Regulatory Laboratory

(p.283) 14 Changed Conditions, Old Truths: Judicial Review in a Regulatory Laboratory
The Regulatory State

Richard Rawlings

Oxford University Press

This chapter demonstrates how, starting from a low base, domestic judges have become more involved in regulating the regulators. This development reflects and reinforces key trends in UK regulatory reform and is in line with general jurisprudential development, which encompasses expansionary elements of common law, EU law, and Convention rights. It is argued, however, that for good reason the judicial contribution remains determinedly modest. Constitutional and institutional limitations on the courts' role, commonly expressed today in the language of ‘deference’, point firmly in this direction — or away from so-called ‘hard look review’. Examination of the dynamics of the litigation also reveals several sets of tensions that generate further pressures for change. Prominent among these is the challenge presented to judicial review and the ordinary courts by competition law and high-powered specialist tribunals, and the practice of both weak substantive review and increasingly assertive procedural supervision.

Keywords:   regulation, domestic judges, UK regulatory reform, courts, litigation

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