Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter first explains the open texture of law, which shows that there are, indeed, areas of conduct where much must be left to be developed by courts or officials, striking a balance between competing interests that vary in weight from case to case. It then discusses the varieties of rule-scepticism, finality and infallibility in judicial decision, and uncertainty in the rule of recognition.
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An interim application is any application made to the court that requires a judicial decision. This is usually in the time between a case being issued and the final trial or determination of the action. This chapter considers the nature of interim applications. It discusses the interim applications made with and without notice, and those made with and without a hearing. It also explains common procedure and time estimates.
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This chapter discusses the grounds upon which it is possible to challenge administrative decisions by way of judicial review, and shows that there are many and varied grounds on which courts may review decisions taken by public bodies. A notable theme in this area concerns the deepening, in recent years, of judicial scrutiny of the executive. New grounds of review—such as legitimate expectation and proportionality—have emerged, often involving a greater degree of judicial oversight of executive decisions than has traditionally existed.
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This chapter focuses on the administrative justice system. Administrative justice refers to the systems that enable individuals to resolve complaints, grievances, and disputes about administrative or executive decisions of public bodies, and to obtain redress. Grievance mechanisms exist to achieve redress and to ensure accountability and improved public administration. They include formal court action through judicial review, but range well beyond the courts to informal, non-legal mechanisms. Whereas a public inquiry may concern a grievance of a larger section of the public and can raise political issues, an inquiry by an Ombudsman concerns a grievance of an individual or small group, with a different fact-finding process. Meanwhile, tribunals determine rights and entitlements in disputes between citizens and state in specific areas of law, such as social security, immigration and asylum, and tax.
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This chapter discusses the sources of international law, as reflected in Article 38 of the Statute of the International Court of Justice, and covers international custom, treaties, general principles of law, and judicial decisions. It also describes other material sources: the conclusions of international conferences, resolutions of the UN General Assembly, the writings of publicists, and codification and the work of the International Law Commission, concluding with other considerations applicable in judicial reasoning.
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This chapter focuses on legal reasoning more conceptually. It aims to develop a deeper understanding of what is involved in legal reasoning within the process of adjudication, focusing on how legal arguments seek to provide justification for specific decisions, and to help to predict the form of argument that judges may prefer. Legal reasoning is presented first as a theoretical construction, on which there is much debate, then as a specific process. The chapter explores the philosophical territory of legal theory or jurisprudence, examining the theories that underpin legal reasoning and the way that reasoning techniques are employed in legal contexts.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords. This case explored whether a decision-maker acting in a quasi-judicial capacity was bound by the same decision-making standards as the courts including, for example, whether retrospective decision-making was permitted. As well as these rule of law considerations, it also raises questions as regards the division or separation of functions within the constitution. The document also includes supporting commentary from author Thomas Webb.
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This chapter focuses on the concept of locus standi, perhaps the most important way in which administrative law deals with the question of how to balance the protection of individual citizens’ rights and interests with the desire to ensure that government decision-making remains within legal limits and that government bodies (including the courts) are protected from vexatious litigants. It is organised as follows. The first section addresses the law that existed prior to the introduction of the Order 53 reforms in 1977 whilst the second covers the short period between the introduction of those reforms and the House of Lords’ decision in IRC v National Federation of Self-Employed and Small Businesses. The third section runs from the mid-1980s to the present day. The pervasive analytical concerns are to explore the way the law of locus standi interacts with the question of the choice of procedure issues which were addressed in chapter fifteen, and—more broadly—to assess how those two matters both singly and in combination structure in a practical sense the way our constitution gives effect to the various values inherent in theories relating to the rule of law and sovereignty of Parliament.
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This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.
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This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.
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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 examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed in depth. In addition, the public-sector equality duty in section 149 of the Equality Act 2010 is explained. The concept of jurisdiction and the distinction between error of law and error of fact are also included under this ground of review.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords. This case explored whether a decision-maker acting in a quasi-judicial capacity was bound by the same decision-making standards as the courts including, for example, whether retrospective decision-making was permitted. As well as these rule of law considerations, it also raises questions as regards the division or separation of functions within the constitution. The document also includes supporting commentary and questions from author Thomas Webb.
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This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.
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This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords. This case explored whether a decision-maker acting in a quasi-judicial capacity was bound by the same decision-making standards as the courts including, for example, whether retrospective decision-making was permitted. As well as these rule of law considerations, it also raises questions as regards the division or separation of functions within the constitution. The document also includes supporting commentary and questions from author Thomas Webb.
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This chapter introduces legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.
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Christine Chinkin
This chapter discusses the sources of international human rights law set out in Article 38(1) of the Statute of the International Court of Justice: treaties, custom, general principles of law, and, as subsidiary means for determining the law, judicial decisions and the teachings of publicists. It then considers the role of ‘soft law’ instruments, such as resolutions of the UN General Assembly and the work of human rights expert bodies.
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Christine Chinkin
This chapter discusses the sources of international human rights law set out in Article 38(1) of the Statute of the International Court of Justice: treaties, custom, general principles of law, and, as subsidiary means for determining the law, judicial decisions and the teachings of publicists. It then considers the role of ‘soft law’ instruments, such as resolutions of the UN General Assembly and the work of human rights expert bodies.
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This chapter assesses judicial review and the rule of law, the three traditional grounds of judicial review, proportionality, the modern approach to judicial review, and remedies. Judicial review is the rule of law in action. Through judicial review, the courts place constraints on executive power by upholding and projecting rule of law principles on to executive actions. Indeed, it ensures that administrative decisions are taken rationally, in accordance with a fair procedure, and within the powers conferred by Parliament. As such, the traditional judicial review grounds of illegality, irrationality, and procedural impropriety are applied flexibly to protect individuals against the unreasonable, arbitrary, procedurally unfair, or unlawful use of power. Judicial review has unique remedies known as prerogative orders which comprise mandatory orders, prohibiting orders, and quashing orders.
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This chapter begins with a discussion of the importance of the sources of international law. It then discusses the Statute of the International Court of Justice 1945; treaties; customary international law; general principles of law; judicial decisions and the writings of publicists; resolutions of international organisations; soft law.Finally, it looks at whether there exists a hierarchy of international law sources.
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