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Chapter

Cover Land Law

12. Concepts and Contexts  

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

Chapter

Cover The Changing Constitution

15. The Democratic Case for a Written Constitution  

Jeff King

Written constitutions have often been viewed as the bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than a form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions—which are broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialization critique—are misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution will be enacted, and how rigidly entrenched it should be. Answers to these questions are presented in Parts III and IV of the article. In the former, it is argued for a constituent assembly consisting of party and direct citizen representation. In the latter, defence of a model of entrenchment is discussed that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for a liberal egalitarian constitutional order that takes both rights and democracy seriously.

Chapter

Cover Constitutional and Administrative Law

12. The royal prerogative  

This chapter begins by discussing the origins and meaning of the term ‘royal prerogative’. It identifies some examples of prerogative powers and considers how certain personal or reserve powers of the monarch might be exercised in practice. The chapter also explores the relationship between prerogative power and statutes and focuses on how the courts have dealt with the prerogative. The chapter also discusses the adaptation of prerogative powers, the relationship between the prerogative and the courts, and the courts’ recent willingness to review the exercise of certain prerogative powers. The chapter concludes by looking at several ways in which the prerogative could be reformed.

Chapter

Cover The Oxford Handbook of Criminology

37. Sentencing  

Andrew Ashworth and Julian V. Roberts

Sentencing represents the apex of the criminal process and is the most public stage of the criminal justice system. Controversial sentences attract widespread media coverage, intense public interest, and much public and political criticism. This chapter explores sentencing in the United Kingdom, and draws some conclusions with relevance to other common law jurisdictions. Sentencing has changed greatly in recent years, notably through the introduction of sentencing guidelines in England and Wales, and more recently, Scotland. However, there are still doubts about the fairness and consistency of sentencing practice, not least in the use of imprisonment. Among the key issues to be examined in this chapter are the tendency towards net-widening, the effects of race and gender, the impact of pleading guilty, the use of indeterminate sentences, the rise of mandatory sentences, and the role of the victim in the sentencing process. The chapter begins by outlining the methods by which cases come before the courts for sentencing. It then summarizes the specific sentences available to courts and examines current sentencing patterns, before turning to a more detailed exploration of sentencing guidelines, and of the key issues identified above. The chapter addresses two critical questions: What is sentencing (namely who exerts the power to punish)? Does sentencing in the UK measure up to appropriate standards of fairness and consistency?

Chapter

Cover Public Law

16. Ombudsmen  

This chapter discusses the role and work of the Parliamentary Ombudsman (‘Ombudsman’). The Ombudsman investigates complaints of maladministration that members of the public allege they have received from government departments. The chapter beings by considering the constitutional position of the Ombudsman, explaining how originally the Ombudsman was seen as a servant of the House of Commons, filling a gap left by traditional forms of government accountability provided by MPs who taken together lack the capability to investigate thousands of individual cases. The chapter outlines the procedures of the Ombudsman as provided for the Parliamentary Commissioner Act 1967, including the MPs filter, and how meaning of maladministration has developed in recent decades into ‘principles of good administration’. If the Ombudsman finds that maladministration has occurred in a particular case, then they can make a recommendation as to what the relevant government department can do to remedy the situation. If the government department does not accept the Ombudsman’s recommendation, then the Ombudsman can bring the matter to the attention of the House of Commons by laying a special report. This reflects how ultimately, the Ombudsman is part of the political, rather than legal process.

Chapter

Cover The Oxford Handbook of Criminology

43. Criminological engagements  

Alison Liebling, Fergus McNeill, and Bethany E. Schmidt

This chapter considers the relationships between criminology and the worlds of penal policy, practice, and activism. It focuses, in particular, on the day-to-day interactions the authors of the chapter forge in their research lives and on their effects and failures as engaged criminologists. The chapter supports forms of criminological engagement that are subtle, long term, and relational rather than occasional, mechanical, linear, or instrumental, and proposes that these forms of engagement improve understanding but require constant reflection and negotiation. This chapter argues that knowledge-generation is slow and cumulative; it takes time to ‘read a situation’ in complex human and social environments and it should be an iterative process with those in research, in practice, or with lived experience teaching and learning from each other every step of the way. For knowledge to ‘do good’, it needs to be (qualitatively) ‘good’. It should be produced through patient, honest, rigorous, and disciplined, but also deeply engaged, forms of enquiry. This chapter suggests that our institutional structures often fail to support this model of research.

Chapter

Cover The Oxford Handbook of Criminology

8. Drug use, drug problems, drug control: A political economy perspective  

Toby Seddon and Alex Stevens

This chapter presents an overview of the phenomenon of illicit drugs and their control. We show that drugs are not just a matter of crime, morality, or health but rather are also a global commodity the use and control of which continue to run along lines shaped by inequalities of geography, wealth and power. Viewing the drug problem through the lens of political economy, and in global and historical perspective, provides a clearer view of the issue. It allows us to see how some facets of the problem are exaggerated (e.g. crime and health harms) whilst others are under-stated (e.g. pleasure, harms to producer countries in the Global South). It also sheds new light on why some policy approaches and interventions continue to fail and why others may be more promising. Lastly, the prospects for radical alternatives to prohibition through drug law reform are considered.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

15. Family homes: Postscript  

In this chapter, there is a recognition that the intervention of equity in the family home represents a pragmatic response to a real problem, but it is not a perfect solution. It considers some of a number of grounds of critique of the current approach, including attempts at legislative reform to provide a solution. It can be criticized on a number of grounds, quite apart from the issue as to whether it constitutes a usurpation of a legislative function. There is also a consideration of whether the approach we have now has moved away from traditional assertion of property principles to a sense of redistributive justice more familiar to family lawyers.

Chapter

Cover The Changing Constitution

14. Federalism  

John McEldowney

Federalism, to date, has proved unattractive to the United Kingdom. The United Kingdom is commonly described as a unitary state, whereby governmental power is primarily exercised through a sovereign Parliament at Westminster. The UK may be distinguished from Federal countries, notably the United States or Germany. In federal systems, sovereign power is shared between the federal government and the states. However, the description of the United Kingdom as a unitary state is an oversimplification as there are many instances of devolved, shared and autonomous powers that do not easily fit under a centralized view of the state. These ‘quasi-federal’ elements of the constitution arise through the UK Parliament delegating to regional and local communities a variety of powers and responsibilities through elected local and municipal authorities as well as devolved ‘deals’. Since 1989, powers have been distributed to the four nations of the United Kingdom: England, Scotland, Wales and Northern Ireland through extensive, and increasing, devolved powers (devolution) including a variety of tax-raising powers. There is also a London Assembly with devolved powers. The future of the UK after Brexit is uncertain and there are deep divisions of opinion. England and Wales voted for Brexit while London, Northern Ireland and Scotland voted to remain within the EU. Different constitutional configurations were suggested for the four nations, during the nineteenth century, including federalism, Irish home rule and independence as well as strengthening local government. No exact definition of federalism emerged from the different variations supported at one time or another during this period. Consequently supporters of federalism have struggled to have a single configuration to make their case. Overall federalism was rejected as inconsistent with the orthodoxy of a unitary state formed from an incorporating union centred around a sovereign Parliament. Has the extent of substantial devolved and delegated powers reached a tipping point that places a form of divisible federalism as a way of addressing current concerns and controversies including Brexit? Any formal adoption of federalism would alter the role of the UK Supreme Court as well as future relations with the EU after Brexit. Federalism might provide a mechanism for a changing unitary state to address 21st-century challenges amidst a perceptible shift to a ‘quasi-federal’ state with devolved governments and many shared or delegated powers.

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 Mason and McCall Smith's Law and Medical Ethics

4. The Regulation of Health and Social Care Professionals  

A. M. Farrell and E. S. Dove

This chapter provides an overview of the regulation of health and social care professionals in the UK, with a focus on the work of the statutory professional regulators and the concept of fitness to practice. The chapter addresses different elements of the fitness to practise process, looking at case law in this area, including aspects of sexual misconduct and dishonesty. The chapter then considers the operation of the professional duty of candour, looking at barriers to embedding candour. It concludes with some reflections on the future of professional regulation, including the impact of longstanding calls for reform in this area.

Chapter

Cover Family Law

3. Ending a Marriage or Civil Partnership  

This chapter starts with a brief history of divorce. The chapter then considers the current law on divorce, its historical origins and strengths, and its weaknesses. It then turns to the new law on divorce which is due to come into effect in the autumn of 2021. The chapter asks: Why was reform needed? What role does divorce play in our society? What does divorce say about marriage as an institution? The chapter uses a real-life scenario to answer these questions.

Chapter

Cover Cross & Tapper on Evidence

XII. Hearsay in general  

This chapter takes a look at the hearsay rule. Though it is one of the most complex and confusing of the exclusionary rules of evidence, the hearsay rule can be used as the background and foundation to understand the new statutory provisions for civil and criminal proceedings. The chapter first discusses the hearsay rule at the common law level, explaining why such an exclusionary rule was thought necessary. It also indicates the tenor of this rule's development and reform. Next, the chapter more closely examines the scope of the rule, implied assertions, res gestae, the rule against narrative, and the extent to which admissions constitute an exception to the rule.

Chapter

Cover Administrative Law

24. Statutory and other Inquiries  

Sir William Wade and Christopher Forsyth

This chapter begins with a discussion of statutory inquiry, which is the standard technique for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens' rights or interests. It then turns to complaints and reforms; law and practice today in statutory inquiries; and other inquiry procedures.

Chapter

Cover Wade & Forsyth's Administrative Law

24. Statutory and Other Inquiries  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

This chapter begins with a discussion of statutory inquiry, which is the standard technique for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens’ rights or interests. It then turns to complaints and reforms; law and practice today in statutory inquiries; and other inquiry procedures.

Chapter

Cover The Criminal Process

1. Introduction to the English criminal process  

This chapter starts by presenting a brief sketch of the key stages and decisions of the criminal process which forms part of the English criminal justice system. The significance of those stages and decisions is discussed before they are then classified according to their nature and consequence. This is followed in the next section by differentiating between the criminal process and the system before moving on to orient the reader by outlining significant reforms that have shaped the criminal process in the past decades. There is a final concluding section.

Chapter

Cover Introduction to the English Legal System

11. Transformation or transition? The English legal system in flux  

The final chapter of this book reflects further on how the legal system has changed and will continue to develop going forwards. The dramatic changes that have been made over the past 20+ years are grouped under two broad headings: modernization and austerity. Looking to the future, the immediate challenge is to finish the Transformation Programme and to deal with the impact of the COVID-19 pandemic. Other issues include: dealing with the criminal justice system; increasing support for legal advice services; and improving public legal education. The chapter argues that lawyers should not fear change, but exploit the opportunities that arise.

Chapter

Cover The Changing Constitution

8. The Foundations of Justice  

Andrew Le Sueur

Everybody agrees there is broad consensus that the constitutional principle of judicial independence is important. In relation to the core judicial functions of hearing cases and writing judgments, the central meaning and application of the principle is fairly straightforward: people holding public office (politicians, parliamentarians, and officials) must refrain from interfering with judicial decision-making in individual cases; and judges should be protected from illegitimate pressure from the news media and other organizations. But hearings and judgments do not ‘just happen’; they have to be facilitated by a wide array of institutions and processes (the justice infrastructure), covering matters as diverse as court buildings, litigation procedures, judicial careers, and legal aid. In the absence of a codified constitution, in the United Kingdom the justice infrastructure is set out in Acts of Parliament, delegated legislation and ‘soft law’ (including the 2003 ‘Concordat’). The day-to-day running of the justice infrastructure can be understood in terms of who carries out functions related to the administration of justice—the judges, government (in particular, the Lord Chancellor), functions shared between judges and government, and functions given to arm’s length bodies. Periodically, the justice infrastructure is reshaped. This is a constitutionally significant activity that may take place in different settings—the political environment, expert environments, and blended environments. The day-to-day running of this infrastructure, along with its periodic reshaping, presents numerous and complex challenges for a legal system intent on respecting judicial independence and facilitating access to justice.

Chapter

Cover Tort Law

14. Breach of statutory duty  

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987, where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.

Chapter

Cover Contemporary Intellectual Property

2. Copyright 1: history, rationale, and policy context  

This chapter considers the evolution of modern copyright law against the background of its historical development in the UK and the international and European legal frameworks within which UK copyright law has been set since the nineteenth century. It examines the rationale and justifications for copyright and identifies the general policy context within which law and policy has developed in the UK and the EU. It also highlights the rapid development of new technologies which has brought copyright reform to the forefront in recent times, the difficulties which this new environment presents for the copyright framework, and how the framework has developed to meet such challenges.