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Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

23. Regulation and control of charitable trusts  

This chapter discusses the regulatory system of charitable trusts. In the case of private trusts, the primary task of supervising the trustees and ensuring that they do not abuse their position falls to the beneficiaries. Charitable trusts do not have beneficiaries as such since, by their very nature, they are purpose trusts and an exception to the beneficiary principle, although there may obviously be persons, for example, donors, who are interested in seeing that assets held on trust for charity are properly applied. Historically, charities were supervised and controlled by the Attorney-General, acting on behalf of the Crown. However, this function has largely been replaced by a regulatory system with a statutory footing. The law was revised by the Charities Acts 1993 and 2006, and is further revised by the consolidating Charities Act 2011.

Chapter

Cover The Modern Law of Evidence

3. The burden and standard of proof  

This chapter discusses the rules governing which party bears the legal and evidential burdens on which facts in issue. These rules can determine the eventual outcome of proceedings; determine which party has the right to begin adducing evidence in court; in what circumstances a defendant, at the end of the case for the prosecution, or claimant, may make a successful submission of no case to answer; and how the trial judge should direct the jury. The chapter begins by defining and distinguishing the legal, evidential, and other burdens, and then considers in detail which burden is borne by each of the parties on the various facts in issue in any given case. The chapter also considers the standard of proof in criminal proceedings where the burden is on the prosecution and on the accused. The standard of proof in civil proceedings is also considered.

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 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 Partnership and LLP Law

9. Limited Partnerships  

This chapter concerns the rapidly development of the law relating to limited partnerships under the Limited Partnerships Act 1907 (as amended).. It follows the recent rapid rise in the number of such firms on both sides of the border and the recent reform of the law, including the creation of the private fund limited partnerships(PFLPs). For non PFLPs it details the rules relating to formation, the liability of a limited partner and the modifications of partnership law, including non-interference in management and financial constraints. The relationship between the general and limited partners as to provision of information and derivative actions are set out. With regard to PFLPs, the differences from non PFLPs as to registration, interference in management (the white list), capital contributions, duties of limited partners and winding up are covered. Finally, the chapter considers the proposed (2019) further reforms to counter abuse of the limited partnership form in financial frauds.

Chapter

Cover Banking Law and Regulation

10. Structural regulation  

Iris Chiu and Joanna Wilson

This chapter examines structural regulation and reform in the UK. Structural reforms refer to direct regulatory intervention into a bank’s business structure. This applies particularly to large banking groups in the UK. In brief, large banking groups in the UK may be compelled by regulation to restructure themselves for the purposes of preserving key economic functions that are socially important while maintaining their competitive edge. Although structural reforms are aimed first and foremost at containing systemic risk and improving the resolvability of banks, these reforms may also go some way towards changing the culture of banks, especially retail banks, so that the conduct of retail banks may be more aligned with the public interest in their social utility functions. The chapter then considers other options in structural reforms, which include the Volcker Rule implemented in the US as well as the superseded Glass–Steagall Act.

Chapter

Cover Essential Cases: EU Law

Inuit Tapiriit Kanatami and others v European Parliament and Council of the European Union (Cases T-18/10 and C-583/11 P ‘Inuit I’), EU:T:2011:419, 6 September 2011/ EU:C:2013:625, 3 October 2013  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Inuit Tapiriit Kanatami and others v European Parliament and Council of the European Union (Cases T-18/10 and C-583/11 P ‘Inuit I’), EU:T:2011:419, 6 September 2011/ EU:C:2013:625, 3 October 2013. The document also includes supporting commentary from author Noreen O'Meara.

Chapter

Cover Essential Cases: EU Law

Inuit Tapiriit Kanatami and others v European Parliament and Council of the European Union (Cases T-18/10 and C-583/11 P ‘Inuit I’), EU:T:2011:419, 6 September 2011/ EU:C:2013:625, 3 October 2013  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Inuit Tapiriit Kanatami and others v European Parliament and Council of the European Union (Cases T-18/00 and C-583/11 P ‘Inuit I’), EU:T:2011:419, 6 September 2011/ EU:C:2013:625, 3 October 2013. The document also includes supporting commentary from author Noreen O’Meara.

Chapter

Cover Birnie, Boyle, and Redgwell's International Law and the Environment

6. Climate Change and Atmospheric Pollution  

This chapter looks, inter alia, at how international law has been used or could be used to help tackle the most significant environmental challenge of our time. This challenge is global climate change. Not many topics provide a good illustration of the importance of a globally inclusive regulatory regime focused on preventive and precautionary approaches to environmental harm—or of the problems of negotiating one on such a complex subject. Solutions to global climate change have not been easily forthcoming. The chapter looks at the efforts of the international regulatory regime to address these challenges by recourse to novel ‘market based’ mechanisms and differential treatment. An example is the post-Kyoto scheme for reducing greenhouse gas emissions through ‘nationally determined contributions’. In the end, the chapter argues, it is likely to be technology that enables us to grapple with the causes of climate change, not law, but law can drive technological change, as it has with ozone depletion and acid rain.

Chapter

Cover Birnie, Boyle, and Redgwell's International Law and the Environment

7. Nuclear Energy and the Environment  

This chapter gives the example of the Chernobyl reactor accident in 1986 to show that nuclear power creates risks for all states, irrespective of whether they choose this type of energy. Every state, and the global environment, is potentially affected by the possibility of radioactive contamination, the spread of toxic substances derived from nuclear energy, and the long-term health hazards consequent on exposure to radiation. Whether the nuclear power industry has now attained acceptable levels of risk to international society cannot be answered in the abstract, the chapter argues, or solely by reference to regulatory standards and technical capabilities, but must take into account public perceptions of risk, as well as the alternatives and the competing risks, such as climate change. The chapter notes that for all governments there are inevitably difficult policy choices in which there are few electoral advantages.

Chapter

Cover Environmental Law

9. Regulatory Strategy  

This chapter discusses the meaning and role of regulatory strategy in English and EU environmental law. Regulatory strategy is often thought of as an instrument to achieve certain environmental protection ends but the chapter argues that, despite the availability of a plethora of regulatory tools to implement them, regulators often face significant challenges to act in a strategic manner and to turn environmental regulatory strategy into an effective instrument of behavioural change. Against this background the chapter outlines the strengths and weaknesses of the key regulatory strategies currently adopted by both public and private regulators in a range of jurisdictions.

Chapter

Cover Environmental Law

4. The form, function, and administration of environmental law  

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter focuses on national law, while also introducing international and European sources. Environmental law emerges at international, European, and national levels partly because the complex, interconnected nature of environmental problems requires a range of solutions at all of these levels. Some of the key characteristics of environmental laws that help to explain both the form and function of UK environmental law are examined here. The chapter also considers the institutions that are involved in the administration of environmental law and policy. The administration of environmental law and policy is carried out by a diversity of bodies, including government departments, regulatory agencies such as the Environment Agency, and a range of quasi-governmental bodies. The focus here is almost exclusively on UK structures and institutions. An underlying theme of the chapter is the way in which administrative structures are used to encourage the integration of environmental law and policy both internally—for example, through the creation of the Environment Agency as a unified regulatory agency—and externally; for example, through various methods of scrutinizing environmental policy across government departments.

Chapter

Cover Criminal Law Directions

4. Strict liability  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter discusses a special form of criminal liability: strict liability (including absolute liability). A strict liability offence is an offence which does not require proof of a fault element (i.e., where the prosecution need not prove at least one mens rea element). An absolute liability offence does not require proof of any mens rea elements. This chapter also evaluates the arguments for and against strict liability and discusses regulatory offences.

Chapter

Cover Banking Law and Regulation

7. European banking supervision and regulatory architecture  

Iris Chiu and Joanna Wilson

This chapter explores the European banking supervision and regulatory architecture. The aim of the introduction of European policy and law in bank regulation is was to build a single market in financial services and to give effect to the freedom of movement of capital. In the midst of the global financial crisis in 2008, the European Commission established a high-level group of experts chaired by Jacques de Larosière to recommend a blueprint for financial supervision in the EU going forward. The de Larosière Report provided a comprehensive analysis of the weaknesses in the financial sector in the EU and recommended stronger regulatory governance in many areas. The chapter then considers the Banking Union, a policy that introduces a new supervisory architecture for euro-area banks.

Chapter

Cover European Union Law

13. Free Movement of Goods I  

Negative Integration

This chapter analyses the constitutional regime of ‘negative integration’ in the context of the free movement of goods. The free movement of goods has traditionally been the most progressive fundamental freedom within the internal market. The negative integration regime for goods is split over two sites within Part III of the Treaty on the Functioning of the European Union (TFEU). And with regard to goods, the EU Treaties further distinguish between fiscal restrictions and regulatory restrictions. The fiscal restrictions include pecuniary charges that are imposed on imports or exports (customs duties and discriminatory taxation), while the regulatory restrictions include non-tariff measures that limit market access by ‘regulatory’ means. The chapter then looks at possible justifications for such regulatory restrictions.

Chapter

Cover Steiner and Woods EU Law

12. Direct Action for Annulment  

This chapter focuses on the Treaty provisions providing for judicial review of European Union (EU) law in Article 263 of the Treaty on the Functioning of the European Union (TFEU). It explains the grounds for challenge and the consequences of a successful challenge to EU regulations. The chapter also highlights criticisms of Article 263 TFEU concerning restrictive tests for the admissibility of actions by individuals, and the restrictive attitude to the locus standi of trade associations and pressure groups. The implications of the case law after the Treaty of Lisbon, particularly regarding the term ‘regulatory act’, are explained. It considers the scope of indirect review under Article 277 TFEU. Finally, this chapter examines the provisions of Article 265 TFEU concerning action for failure to act. It discusses the notion of ‘reviewable omissions’, the scope of the EU institutions’ duty to act and the consequences of a successful action.

Chapter

Cover An Introduction to European Law

9. Internal Market: Goods  

This chapter explores the European Union’s market integration tools in the context of the free movement of goods. In order to create an internal market in goods, the EU insists that illegal barriers to intra-Union trade must be removed. This form of negative integration will be looked at through the lens of two prohibitions. The first is the prohibition on customs duties and concerns tariff barriers. The second type of prohibition relates to regulatory barriers to trade. The chapter then investigates the legality of and possible justifications for regulatory restrictions to trade in goods. A final section studies the constitutional principles and limits governing positive integration in the context of the free movement of goods. It analyses the scope and nature of the general internal market competence: Articles 114 TFEU.

Chapter

Cover Banking Law and Regulation

6. UK banking supervision and regulatory architecture  

Iris Chiu and Joanna Wilson

This chapter addresses the UK bank supervision and regulatory architecture. Although banking business has existed in England since the seventeenth century, banks enjoyed no formal system of regulation until the introduction of the Banking Act of 1979. Over the years, the scope and intensity of regulation increased. After the global financial crisis, further changes were made to bank regulation as well as the regulatory architecture in the UK for bank regulation. The regulatory architecture introduced in April 2013 is characterised as ‘twin peaks’, that is, having two main agencies that are responsible for different regulatory objectives. The Prudential Regulation Authority (PRA) is responsible for ‘prudential’ objectives—that is, the solvency and financial soundness of financial institutions—while the Financial Conduct Authority (FCA) is responsible for conduct of business and market regulation, including promoting competition. The PRA and FCA enjoy a wide berth of rule-making and enforcement powers.

Chapter

Cover Steiner & Woods EU Law

12. Direct action for annulment  

This chapter focuses on the Treaty provisions providing for judicial review of European Union (EU) law in Article 263 of the Treaty on the Functioning of the European Union (TFEU). It explains the grounds for challenge and the consequences of a successful challenge to EU regulations. The chapter also highlights criticisms of Article 263 TFEU concerning restrictive tests for the admissibility of actions by individuals, and the restrictive attitude to the locus standi of trade associations and pressure groups. The implications of the case law after the Treaty of Lisbon, particularly regarding the term ‘regulatory act’, are explained. It considers the scope of indirect review under Article 277 TFEU. Finally, this chapter examines the provisions of Article 265 TFEU concerning action for failure to act. It discusses the notion of ‘reviewable omissions’, the scope of the EU institutions’ duty to act and the consequences of a successful action.

Chapter

Cover Steiner & Woods EU Law

20. Economic rights: workers, establishment and services  

This chapter examines the provisions of European Union (EU) law concerning economic rights provided by Articles 45, 49 and 56 of the Treaty on the Functioning of the European Union (TFEU), concerning workers, establishment and services respectively. It discusses the Court of Justice’s (CJ) interpretation and its impact on Member States’ ability to regulate the right to trade within their own territory, as well as regulatory competition between Member States. The chapter discusses the harmonization of qualifications (including the Qualifications Directive), the free movement of lawyers and the Services Directive.