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Chapter

Cover Essential Cases: Public Law

Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, also known as the Patriation Reference, Supreme Court of Canada. This case considers the identification of constitutional conventions using the Jennings test, and the legal enforceability of conventions. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753 Supreme Court of Canada (also known as the Patriation Reference)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753, Supreme Court of Canada (also known as the Patriation Reference). This case considers the identification of constitutional conventions using the Jennings test, and the legal enforceability of conventions. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

4. The Royal Prerogative  

This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.

Chapter

Cover Public Law Concentrate

7. The monarchy and the Royal Prerogative  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The UK is a constitutional monarchy: the monarch exercises their legal powers as part of a system of government which is parliamentary and democratic. The chapter discusses the legal source of the monarch’s powers as head of state which is the Royal Prerogative exercised in accordance with binding political rules and practices. The chapter also covers the monarch’s role within the executive. This chapter discusses the special privileges and immunities of the monarch; the powers and duties of the monarch; and the monarch and the organs and functions of government.

Chapter

Cover Street on Torts

5. Duty of care IV: public authorities  

This chapter considers the liability in negligence of public authorities such as government departments and schools. It commences by examining typical features of public authorities, including their statutory and public dimensions. It then considers the tests that courts have used to determine whether they can claim jurisdiction to hear cases involving public authorities—ie, the issue of justiciability. If the court can exercise jurisdiction, then the next issue that arises is the application of the Caparo Industries v Dickman three-stage framework for duty which, in cases of public authorities, requires paying special attention to policy reasons for either recognising or excluding duties of care.

Chapter

Cover International Law Concentrate

12. Human rights and humanitarian law  

This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative, as well as its positive, dimension. The chapter examines the role of derogations and reservations to human rights treaties, as well as cardinal principles in such treaties, namely, the margin of appreciation and the scope of application. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.

Chapter

Cover Essential Cases: Public Law

R (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), Queen’s Bench Divisional Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), Queen’s Bench Divisional Court. This case concerned the justiciability of provisions in the Ministerial Code relating to bullying, harassment, and discrimination, and the decision of the Prime Minister in relation to an alleged breach of that Code by the Home Secretary. The document also includes supporting commentary and questions from the author, Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, Court of Appeal  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, before the Court of Appeal. This case concerned, among other things, whether foreign policy decisions made by the executive under the prerogative power could ever constitute justiciable matters arguable before the courts. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), Queen’s Bench Divisional Court  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of FDA) v Prime Minister [2021] EWHC 3279 (Admin), Queen’s Bench Divisional Court. This case concerned the justiciability of provisions in the Ministerial Code relating to bullying, harassment, and discrimination, and the decision of the Prime Minister in relation to an alleged breach of that Code by the Home Secretary. The document also includes supporting commentary and questions from author, Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, Court of Appeal  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, before the Court of Appeal. This case concerned, among other things, whether foreign policy decisions made by the executive under the prerogative power could ever constitute justiciable matters arguable before the courts. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover International Law

11. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States  

Philippa Webb

This chapter examines the methods by which States prevent their national courts from deciding disputes that relate to the internal affairs of another State. It considers three main ‘avoidance techniques’: State immunity, act of State, and non-justiciability. It discusses the arguments for and against the current prohibition on the determination of one State’s disputes in the national courts of another State, and identifies the challenges presented by the rule of law, an individual’s right of access to court, and the implementation of jus cogens norms to the maintenance of these avoidance techniques. It concludes with the observation that the pendulum continues to swing between prioritizing sovereignty by protecting the activities of States from judicial scrutiny and calling for greater accountability and remedies for violations of international law.

Chapter

Cover Administrative Law

4. The Scope of Public Law Principles  

Mark Elliott and Jason Varuhas

This chapter examines the scope of judicial review as it applies to the principles of public law. It first explains why discretionary powers conferred by legislation are not always subject to judicial review before discussing prerogative powers and their amenability to judicial review. It then considers justiciability as the limiting factor in the extent to which the in-principle reviewability of the prerogative is of any practical significance. It also examines issues regarding de facto powers, with particular emphasis on the scope of judicial review, the limits of review and its underlying rationale, and the extent to which contractual arrangements may displace the courts' willingness to review. Finally, it explores which public bodies must respect human rights under Section 6 of the Human Rights Act 1998. A number of relevant cases are cited throughout the chapter, including R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.

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).