1-17 of 17 Results  for:

  • Keyword: law-making x
  • Constitutional & Administrative x
Clear all

Chapter

Cover Public Law

21. Institutions of the European Union  

This chapter introduces the project of European integration and discusses the legal basis of the EU, which consists of treaties that authorize law-making. It will identify the principal executive institutions of the European Union and their functions. They will be classified under the headings of supranationalism and intergovernmentalism. The chapter will also examine the process of enacting legislation and the role of the European Parliament. Drawing on an understanding of similar institutions and processes in the UK, the discussion is particularly concerned with an assessment of the institutions in terms of public law values, such as legitimacy, accountability, and transparency.

Chapter

Cover Administrative Law

5. Retention of Discretion  

Mark Elliott and Jason Varuhas

This chapter discusses the principles of administrative law which require decision-makers to retain the discretion which they are granted. It first considers the question of delegation of discretionary powers as well as the non-delegation principle before explaining the nature of delegation. It then examines the courts' approach with respect to departmental decision-making in central government and how far the discretionary freedom of the decision-maker designated by statute may be constrained by delegation and the adoption of policies. It also shows why it is often desirable or even necessary for decision-makers to exercise their discretion in line with a policy or a set of criteria. Finally, it looks at judicial moves towards ensuring that exercise of discretion is structured and legally constrained by publicly available policy. A number of relevant cases are cited throughout the chapter, including Barnard v. National Dock Labour Board [1953] 2 QB 18.

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 Public Law Directions

8. Rule of law  

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

Chapter

Cover Public Law

22. Institutions of the European Union  

This chapter introduces the project of European integration and discusses the legal basis of the EU, which consists of treaties that authorize law-making. It will identify the principal executive institutions of the European Union and their functions. They will be classified under the headings of supranationalism and intergovernmentalism. The chapter will also examine the process of enacting legislation and the role of the European Parliament. Drawing on an understanding of similar institutions and processes in the UK, the discussion is particularly concerned with an assessment of the institutions in terms of public law values, such as legitimacy, accountability, and transparency.

Chapter

Cover Administrative Law

5. Impartiality and independence  

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.

Chapter

Cover Essential Cases: Public Law

R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords  

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.

Chapter

Cover Essential Cases: Public Law

R v Secretary for the Home Department, ex parte Pierson [1998] AC 539, House of Lords  

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.

Chapter

Cover Public Law

17. Tribunals  

This chapter considers the role and constitutional status of tribunals that determine appeals against initial decisions made by government agencies. It also examines the place of tribunals within the UK’s public law system and the reorganisation of the tribunals into a new, integrated, and unified tribunals system brought about by the Tribunals, Courts and Enforcement Act 2007. An overview of the tribunals system, tribunal procedures, and judicial oversight of tribunal decision-making is also provided.

Chapter

Cover Complete Public Law

16. Illegality  

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.

Chapter

Cover Public Law Directions

11. The key functions of Parliament  

This chapter identifies Parliament’s primary functions of making law and scrutinising government action. Parliament’s scrutiny of government has been defined as ‘the process of examining expenditure, administration, and policy in detail, on the public record, requiring the government of the day to explain itself to parliamentarians as representatives of the citizen and the taxpayer, and to justify its actions’. In the absence of a codified constitution and entrenched limits on executive power, the requirement for the government to answer to Parliament for its actions acts as a check and control. The chapter also considers the legislative process, particularly legislative scrutiny. Secondary legislation made by the government can often be subject to much less scrutiny and debate than primary legislation, and sometimes none at all. These scrutiny gaps increase the risk of arbitrary law-making and ‘governing from the shadows’, again raising rule of law concerns.

Chapter

Cover Complete Public Law

7. Parliamentary Supremacy  

The Theory

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. Parliamentary supremacy means that the Westminster Parliament is legally entitled to pass, amend, or repeal any law it wishes. Consequently, if the House of Commons and the House of Lords pass the legislation and the monarch gives her royal assent, then no court or other body has the legal power to declare the legislation invalid. This explains why the term ‘parliamentary supremacy’ has been coined: (the Queen in) Parliament holds the supreme law-making power in the UK. This chapter sketches the history leading to parliamentary supremacy. It discusses the theories behind the doctrine of parliamentary supremacy; restrictions on the power of Parliament; how parliamentary supremacy compares with constitutional supremacy; and how parliamentary supremacy fits with the separation of powers and the rule of law.

Book

Cover Cases and Materials on Constitutional and Administrative Law

Brian Thompson, Michael Gordon, and Adam Tucker

Cases & Materials on Constitutional and Administrative Law is an invaluable resource. Extracts have been chosen from a wide range of historical and contemporary cases and materials to illustrate the reasoning processes of the courts and to show how legal principles are developed. The extracts from the leading cases in the field are combined with legal, political, and philosophical materials and linked together with explanatory text, alongside extensive notes and questions for discussion. The book takes a critical look at the main doctrines of constitutional law as well as the principles of administrative law, examining the operation of the constitution in relation to Parliament, the government, and the citizen. Incisive commentary throughout the text provides explanation and analysis of the key issues and challenges in constitutional and administrative law. The thirteenth edition has been fully revised and updated to reflect the latest developments in legislation, case law, and politics, including the process and implications of exiting the EU, and the UK’s new post-Brexit legal arrangements; continuing change and challenges to the devolution settlement in Scotland, Wales and Northern Ireland; major Supreme Court decisions in Miller (No.2) / Cherry, UNISON, the Scottish Continuity Bill Reference, and Privacy International; new developments in relation to ministerial responsibility and parliamentary accountability (including the impact of the coronavirus pandemic); proposed repeal of the Fixed-term Parliaments Act 2011; and discussion of proposals for reforms of judicial review and tribunal appeal processes, as well as proposed reform of ombudsmen. This text continues to provide instant access to an unrivalled collection of up-to-date judgments, statutory provisions, official publications, and other policy materials.

Chapter

Cover Essential Cases: Public Law

Porter v Magill [2001] UKHL 67, House of Lords  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Porter v Magill [2001] UKHL 67, House of Lords. This case note considers the introduction of a revised test for bias in public law decision-making. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Porter v Magill [2001] UKHL 67, House of Lords  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Porter v Magill [2001] UKHL 67, House of Lords. This case note considers the introduction of a revised test for bias in public law decision-making. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

7. Law-making  

This chapter discusses law-making. First, it considers the different types of legislative measures, including the special arrangements introduced for law-making in preparation for Brexit. It then examines the methods of control and influence used before and during the consideration of legislation by Parliament, including analysis of the recently abandoned experiment with ‘English Votes for English Laws’. It concludes by analysing the process of judicial review of delegated legislation.

Chapter

Cover Public Law Directions

6. Parliamentary sovereignty  

This chapter focuses on parliamentary sovereignty. The term ‘parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament’s legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament’s legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.