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Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

7. The Electoral System  

A country’s electoral systems are perhaps the most significant mechanism within its constitutional order to ensure that the country’s laws and governmental system attract what Jefferson termed ‘the consent of the governed’. A recent survey of electoral laws in modern democratic societies identified six fundamental characteristics of democratic electoral systems: (i) that virtually all adults may vote; (ii) that elections are held regularly; (iii) that no large group of citizens is prohibited from fielding candidates; (iv) that all legislative seats are contested; (v) that election campaigns are conducted fairly; and (vi) that votes are secretly cast and accurately counted. This chapter examines how well Britain’s electoral system satisfies these tests, first tracing the evolution of the democratic electoral system, followed by a review of the contemporary electoral process.

Chapter

Cover Human Rights Law Directions

25. Article 3 of the First Protocol: right to free elections  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with Article 3 of the First Protocol which imposes on states a duty to hold elections. At the heart of Article 3 is the view that the best way to uphold human rights is through upholding an ‘effective political democracy’. Human rights require states to respect various rights and freedoms that are necessary for any system if it is to be democratic. Though Article 3 of the First Protocol appears to provide only a collective right to fair elections, it has been interpreted to also provide for individual rights to vote, to stand, and to sit, if elected. Article 3 does not, however, provide wide rights to participate in political processes. Its scope is confined to elections for ‘the legislature’, which do not include local elections or referendums. The controversy over prisoners’ voting rights is discussed in this chapter.

Chapter

Cover Jacobs, White, and Ovey: The European Convention on Human Rights

22. The Right to Free Elections  

This chapter examines the protection of the right to free elections in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of Protocol 1 and highlights the increasing number of complaints of violations of this Article, which indicates that the Strasbourg Court is giving fresh emphasis to this provision as essential to the foundations of democratic legitimacy of the State. The chapter also discusses case-law on the nature of the legislature, the requirements of Article 3 in relation to the choice of electoral systems, the right to vote, and the right to stand for election.

Chapter

Cover Trusts & Equity

16. Equitable maxims, doctrines, and remedies  

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.

Chapter

Cover Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights

22. Article 3, First Protocol: The Right to Free Elections  

David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green

This chapter discusses Article 3 of the First Protocol of the European Convention on Human Rights, which imposes a positive obligation on states to secure free elections. The Court has read into this text individual rights to vote and to stand for election, reversing its technique of deriving positive obligations from the expressly articulated guarantees of individual rights contained in other Articles of the Convention. The right of prisoners to vote is included.

Chapter

Cover Trusts & Equity

16. Equitable maxims, doctrines, and remedies  

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers particular principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.

Chapter

Cover Essential Cases: Equity & Trusts

Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights

22. Article 3, First Protocol: The right to free elections  

David Harris, Michael O’Boyle, Ed Bates, Carla Buckley, and Heather Green

This chapter discusses Article 3 of the First Protocol of the European Convention on Human Rights, which imposes a positive obligation on states to secure free elections. The Court has read into this text individual rights to vote and to stand for election, reversing its technique of deriving positive obligations from the expressly articulated guarantees of individual rights contained in other Articles of the Convention. The right of prisoners to vote is included.

Chapter

Cover Complete Public Law

2. Constitutional Organisations, Institutions, and Roles  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter describes the UK’s main constitutional bodies or offices and their roles. The state’s institutions and offices are linked to the three main powers at work within it: executive power, legislative power, and judicial power. The Queen is the head of state for the United Kingdom of Great Britain and Northern Ireland and heads the three branches of the state, although she is a constitutional monarch and her power is subject to constitutional limits. The executive is an umbrella term that describes two different entities: the political executive and the wider machinery of the government. The political executive contains the Prime Minister and government ministers. The wider machinery of government involves the collection of people who keep the country running, which includes the civil service, the police, the armed forces, members of executive agencies such as the Prison Service, and the welfare benefits system. Parliament is the body tasked with law-making, the scrutiny of Bills, and holding the executive accountable. The courts oversee the operation of the rule of law by reviewing actions, omissions, and decisions taken by the executive to ensure that they are legal, rational, and procedurally proper and that they comply with the terms of the Human Rights Act 1998. The chapter concludes with a discussion of elections to the Westminster Parliament—the mechanism through which MPs are elected and other ways in which those elections could be run.

Chapter

Cover Essential Cases: Equity & Trusts

Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Poole's Textbook on Contract Law

13. Breach of contract  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. There are four ways to discharge a contract: by performance, agreement, frustration, or breach. The standard of performance required in relation to each contractual obligation needs to be identified because a failure to perform to the required standard constitutes a breach. In the absence of lawful excuse, a breach of contract arises if a party either fails or refuses to perform a contractual obligation imposed on that party by the terms of the contract or performs a contractual obligation in a defective manner. While every breach of contract will give rise to a right to claim damages, the contract will remain in force unless the breach constitutes a repudiatory breach. The chapter examines the types of repudiatory breaches and the election to terminate or affirm, together with an assessment of the law governing the identification of a repudiatory breach and the consequences of terminating when the breach is not in fact repudiatory. It also examines the options available to the non-breaching party when an anticipatory breach occurs.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

15. Discharge of a contract for breach  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the circumstances in which a contract can be terminated or discharged by one party following breach or incomplete performance by the other party, covering entire obligations. It explains that breach of contract does not automatically bring a contract to an end and that termination of a contract for breach is not the same as rescission. This chapter also discusses the two sorts of situation in which the innocent party can terminate the contract for the other party’s breach, namely breach of condition or serious breach of an innominate term, and following repudiation, and considers the innocent party’s option to elect whether to terminate the contract or keep it alive.

Chapter

Cover Poole's Casebook on Contract Law

13. Breach of contract  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach; termination or affirmation of a contract; the classification of terms: conditions, warranties, and innominate or intermediate terms; the ‘entire obligation rule’; and anticipatory breach.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

22. A Revolution by Due Process of Law?  

Leaving the European Union

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Chapter

Cover Poole's Casebook on Contract Law

13. Breach of contract  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach; termination or affirmation of a contract; the classification of terms: conditions, warranties, and innominate or intermediate terms; the ‘entire obligation rule’; and anticipatory breach.

Chapter

Cover Human Rights Law Directions

17. Article 10: freedom of expression  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.