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Chapter

Cover The Changing Constitution

5. The Internationalization of Public Law and its Impact on the UK  

David Feldman

Municipal public law (by which is meant the public law of national or sub-national polities, including but not limited to local government) is always influenced by events taking place elsewhere in the world and the activities and norms of other polities. For example, the existence of a state depends at least partly on its recognition by other states, and political theories and legal ideas have always flowed across and between regions of the world even if they provoked opposition rather than adoption or adaptation. Yet despite, or perhaps because of, this, any state has good reasons for controlling the introduction of foreign legal and constitutional norms to its own legal order. It is important to check that the norms are compatible with one’s own national values and interests before allowing them to operate within one’s own system. A state which values a commitment to the rule of law, human rights, or democratic accountability is entitled to place national controls over potentially disruptive foreign influences. This chapter considers the nature and legitimacy of those national controls, particularly as they apply in the UK, in the light of general public law standards, bearing in mind that influences operate in both directions, not only between states but also between municipal legal standards and public international law.

Chapter

Cover Public Law

2. Constitutions and Constitutional Law  

This chapter examines the specific functions and characteristics of constitutions in general terms—thinking of what the constitutions of Western democratic countries are typically like—rather than with particular reference to the UK, and then considers how the UK’s constitutional arrangements measure up. This is followed by three case studies that illustrate how the different topics considered in this book relate to one another, and which also provide an overview of the type—and importance—of the issues with which public law is concerned.

Chapter

Cover Public Law

21. Freedom of Assembly  

This chapter is concerned with the right to freedom of assembly and, in particular, the right to protest. The chapter begins with a discussion of the importance of the right to protest, and then considers the prohibition of certain types of behaviour, statutory powers to regulate protests, and common law powers to regulate protests.

Chapter

Cover Public Law Concentrate

10. Introduction to administrative lawThe foundations and extent of judicial review  

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. This chapter discusses the concept of judicial review. Judicial review allows a High Court judge to examine the lawfulness of decisions made by public bodies carrying out their public functions and enactments where there is no right of appeal or where all avenues of appeal have been exhausted. The defendant must be a public body, the subject matter of a claim must be a public law matter, and the claimant must have the right to claim. This chapter also looks at the basis procedure for judicial review.

Chapter

Cover Wade & Forsyth's Administrative Law

18. Procedure of Judicial Review  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

This chapter discusses the application for judicial review. The development of the application is complicated and intertwined with the historical deficiencies and peculiarities of the remedies themselves. Thus, the chapter begins with an account of the defects in the prerogative remedies that spurred the creation of the application. It then discusses the creation of the application for judicial review and subsequent developments; and the divorce of public and private law.

Chapter

Cover Public Law Concentrate

10. Introduction to administrative law  

The foundations and extent of judicial review

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. This chapter discusses the concept of judicial review. Judicial review allows a High Court judge to examine the lawfulness of decisions made by public bodies carrying out their public functions and enactments where there is no right of appeal or where all avenues of appeal have been exhausted. The defendant must be a public body, the subject matter of a claim must be a public law matter, and the claimant must have the right to claim. This chapter also looks at the basis procedure for judicial review.

Book

Cover Constitutional and Administrative Law
The purpose of this book is to introduce the reader to the fundamental principles and concepts of constitutional and administrative law. It is highly popular with undergraduates for its clear writing style and the ease with which it guides the reader through key principles of public law. This twelfth edition incorporates the significant developments in this ever-changing area of the law. The book also includes a range of useful features to help students get to grips with the subject matter. These include further reading suggestions to support deeper research, a large number of self-test questions to help reinforce knowledge, and chapter summaries and numbered paragraphs to aid navigation and revision. This new edition has been fully updated to cover all the latest reforms in constitutional and administrative law, including those relating to devolution and Brexit.

Chapter

Cover Public Law

2. Constitutions and Constitutional Law  

This chapter examines the specific functions and characteristics of constitutions in general terms—thinking of what the constitutions of western democratic countries are typically like—rather than with particular reference to the UK, and then considers how the UK’s constitutional arrangements measure up. The fact that important principles in the UK are not written into laws that have special, higher constitutional status does not mean that there are no such principles. The chapter then outlines lessons learnt from two periods in recent constitutional history: the ‘New Labour’ governments and the Brexit era; both of which, in constitutional terms, were characterised by far-reaching reforms. These topics provide an overview of the type—and importance—of the issues with which public law is concerned.

Chapter

Cover Public Law

20. The Right to Protest  

This chapter is concerned with the right to freedom of assembly and, in particular, the right to protest. The chapter begins with a discussion of the importance of the right to protest, since having the right to say what a person wants amounts to little in practice if he or she lacks the opportunity to do so effectively. The chapter then considers UK domestic law which draws a distinction between conduct that is always unacceptable and that which is potentially acceptable. Finally, the chapter considers the prohibition of certain types of behaviour, the statutory powers to regulate protests, and the common law powers to regulate protests.

Chapter

Cover Administrative Law

13. The Judicial Review Procedure  

Mark Elliott and Jason Varuhas

This chapter examines the judicial review procedure, with particular emphasis on two issues: first, what judicial review procedure which claimants seeking a prerogative remedy are required to use; second, the extent to which a claimant seeking to raise a public law matter may avoid having to use the judicial review procedure by issuing a claim for an injunction or declaration. After providing a background on the origins of today's judicial review procedure, the chapter discusses the nature of the judicial review procedure and the impact of human rights claims on judicial review procedure. It also considers when the judicial review procedure must be used, focusing on procedural exclusivity, waiver of exclusivity, defensive use of public law arguments, and the connection between private law rights and public law.

Chapter

Cover Environmental Law

4. Public Law  

This chapter explains the important role that public law, particularly administrative law, plays in environmental law. This role comes about because much of environmental law requires vesting decision-making and regulatory power in the hands of public decision-makers at all levels of government. This chapter begins by providing an overview of the different constituent elements of public law: constitutional law, administrative law, the role of the EU and international law, as well the complexities of this area of law. The chapter then moves on to consider the way in which the different types of interests involved in environmental problems and the need for information and expertise provide challenges for public law. The chapter then provides an overview of four major features of public law that are particularly relevant to environmental lawyers: the Aarhus Convention, accountability mechanisms, judicial review, and human rights.

Chapter

Cover Sealy and Hooley's Commercial Law

1. An introduction to commercial law  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter introduces the reader to commercial law. It first considers the nature of commercial law by focusing on the definitions offered by previous scholars of note. It then examines its function and historical development, and discusses various sources of commercial law such as contracts and national legislation. In addition it refers importantly to the role of equity and trusts in commercial law, to public law in the commercial arena, and to the philosophy and concepts of commercial law. Possible codification of commercial law is discussed. Finally, the chapter assesses the challenges for commercial law in the twenty-first century and briefly discusses the impact of Brexit on English commercial law.

Chapter

Cover Public Law

22. Policing—Powers, Accountability, and Governance  

This chapter is concerned with three key constitutional issues relating to policing. First, it considers the extent and limits of the powers of the police—and, correlatively, the relevant rights of individuals. Second, it examines the arrangements for overseeing the police and holding it to account. Third, it addresses police governance, including the recent introduction of Police and Crime Commissioners and the balance between political direction and police independence.

Chapter

Cover Public Law

5. UK Central Government  

This chapter discusses what the executive branch of government is and what it does (with particular reference to the UK central government); how it relates to other branches of government (with particular reference to its relationship with Parliament); how it is held accountable, both politically and legally; the institutions and constitutional actors that make up the modern UK executive; and the considerable powers which it has at its disposal. It shows that the executive plays a pivotal role in the British constitution today, and that there are real concerns about whether it enjoys too much power—and about whether that power is subject to adequate oversight and control.

Chapter

Cover Family Law

10. Public Law Protection  

Penelope Russell

Public law protection of children challenges one of the fundamental principles of England and Wales that children are best brought up by their parents. Unlimited state intervention in the family is not permitted and the courts have to strike a balance between maintaining stability for children within their family, and protecting them from harm. This chapter considers the statutory duties of the local authority towards children as well as emergency action to protect a child. It examines what has to be proven to obtain a care order and the evidential difficulties connected with this; in particular, the difficulties posed for the courts where harm is caused to a child by an unknown perpetrator. The chapter ends by exploring the options available to the court at the welfare assessment once the threshold criteria have been met.

Chapter

Cover Constitutional and Administrative Law

13. The nature of judicial review  

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) Pt 54 is outlined, and the prospect of further reform is noted.

Chapter

Cover Administrative Law

6. Reasons: process and substance  

This chapter illustrates the principle of relativity by explaining why public authorities may or may not be required to give reasons for their decisions, depending on the type of decision and its context. The reasons why public authorities should sometimes explain their reasons for a decision reflect the process values explained in Chapter 4: requiring reasons may improve decisions, it may be unfair (to a person affected by the decision) for the decision to be unexplained, and reasons may support judicial review, and may improve transparency and accountability in government in other ways. The discussions cover the deprivation principle, the duty of respect, trigger factors for reasons, the Padfield practicality principle, the content of reasons, how to remedy inadequate reasons, process danger, and the difference between process and substance, and why the difference matters.

Chapter

Cover Wade & Forsyth's Administrative Law

19. Restriction of Remedies  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

Remedies are awarded only to litigants who have sufficient locus standi, or standing. The law starts from the position that remedies are correlative with rights, and that only those whose own rights are at stake are eligible to be awarded remedies. No one else will have the necessary standing before the court. This chapter discusses the old and new law of standing; discretionary power of the court to withhold remedies; exhaustion of remedies; protective and preclusive (ouster) clauses; exclusive statutory remedies; and ‘default powers’, i.e. special powers under which ministers may take steps to compel local authorities to carry out their functions properly.

Chapter

Cover Wade & Forsyth's Administrative Law

16. Prerogative Remedies  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

This chapter focuses on prerogative remedies. It first discusses the remedies of habeas corpus (together with its human rights counterpart), certiorari (the quashing order) and prohibition (the prohibiting order). These are grouped together since they are all remedies for the control of powers. Mandamus (the mandatory order) then follows, being the primary remedy for enforcing public duties.

Chapter

Cover Public Law

21. Policing—Powers, Accountability, and Governance  

This chapter is concerned with three key constitutional issues relating to policing—the roles, functions, and powers of which are multifarious and complex meaning that, inevitably, so are public law’s responses. First, the chapter considers the extent and limits of the powers of the police—and, correlatively, the relevant rights of individuals. Second, the chapter examines the arrangements for overseeing the police and holding them to account. Third, the chapter addresses police governance, including the introduction of Police and Crime Commissioners and the balance between political direction and police independence.