Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Commission v Italy (‘Trailers’) (Case C-110/05), EU:C:2009:66, [2009] ECR I-519, 10 February 2009. The document also includes supporting commentary from author Noreen O'Meara.
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Commission v Italy (‘Trailers’) (Case C-110/05), EU:C:2009:66, [2009] ECR I-519, 10 February 2009
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Digital Rights Ireland and Seitlinger and others v Minister for Communications, Marine and Natural Resources and others (Joined cases C-293/12 and C-594/12), EU:C:2014:238, [2014] ECR I-238, 8 April 2014
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Digital Rights Ireland and Seitlinger and others v Minister for Communications, Marine and Natural Resources and others (Joined cases C-293/12 and C-594/12), EU:C:2014:238, [2014] ECR I-238, 8 April 2014. The document also includes supporting commentary from author Noreen O'Meara.
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Commission v Italy (‘Trailers’) (Case C-110/05), EU:C:2009:66, [2009] ECR I-519, 10 February 2009
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Commission v Italy (‘Trailers’) (Case C-110/05), EU:C:2009:66, [2009] ECR I-519, 10 February 2009. The document also includes supporting commentary from author Noreen O’Meara.
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Digital Rights Ireland and Seitlinger and others v Minister for Communications, Marine and Natural Resources and others (Joined cases C-293/12 and C-594/12), EU:C:2014:238, [2014] ECR I-238, 8 April 2014
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Digital Rights Ireland and Seitlinger and others v Minister for Communications, Marine and Natural Resources and others (Joined cases C-293/12 and C-594/12), EU:C:2014:238, [2014] ECR I-238, 8 April 2014. The document also includes supporting commentary from author Noreen O’Meara.
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16. Exceptions to the free movement rules
Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
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Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court. This case considers the introduction of proportionality as a ground of judicial review beyond human rights and European Union law in the United Kingdom. The relationship between proportionality and Wednesbury unreasonableness is also discussed. The document also includes supporting commentary and questions from author Thomas Webb.
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Smith and Grady v United Kingdom [1999] ECHR 72, European Court of Human Rights
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Smith and Grady v United Kingdom [1999] ECHR 72, European Court of Human Rights. This case examined the now-defunct provisions against gay people serving in the British military, and how using either unreasonableness or proportionality produced different outcomes. It also considers the contribution which a rights-based approach to legal questions, drawing on proportionality, can make to the development of law and policy. The document also includes supporting commentary and questions from author Thomas Webb.
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Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court. This case considers the introduction of proportionality as a ground of judicial review beyond human rights and European Union law in the United Kingdom. The relationship between proportionality and Wednesbury unreasonableness is also discussed. The document also includes supporting commentary and questions from author Thomas Webb.
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Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 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 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Court of Appeal. This case note considers the concept of unreasonableness as articulated in Wednesbury and reflects on its relationship to that of proportionality. The document also includes supporting commentary and questions from author Thomas Webb.
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Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 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 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Court of Appeal. This case note considers the concept of unreasonableness as articulated in Wednesbury and reflects on its relationship to that of proportionality. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
Smith and Grady v United Kingdom [1999] ECHR 72, European Court of Human Rights
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Smith and Grady v United Kingdom [1999] ECHR 72, European Court of Human Rights. This case examined the now-defunct provisions against gay people serving in the British military, and how using either unreasonableness or proportionality produced different outcomes. It also considers the contribution which a rights-based approach to legal questions, drawing on proportionality, can make to the development of law and policy. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
16. Exceptions to the free movement rules
Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test—that is, it is both appropriate and necessary for achieving the relevant public interest objective.
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13. Judicial review: unreasonableness and proportionality
This chapter explores irrationality, the second ground for judicial review identified by Lord Diplock in Council of Civil Service Unions and Others v Minister for the Civil Service. It examines the meaning of this principle, its foundation upon the test of unreasonableness, and the approach that the courts have adopted since that case. Irrationality, and the notion of unreasonableness upon which it is based, is a particularly vague and ambiguous term, with a range of possible interpretations and meanings. This has meant that the courts have often considered judicial review claims, brought on the basis of irrationality, with varying degrees of caution, often employing the necessary tests with notable stringency. In part as a result of this, and in part also due to the increasing influence of European legal practices on the UK system, the test of proportionality has developed as a substantive ground for judicial review, often overlapping and sometimes conflicting with application of the irrationality doctrine.
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8. Abuse of Discretion II
Mark Elliott and Jason Varuhas
This chapter examines grounds of judicial review that are substantive in two senses: it reduces the range of substantive options open to a decision-maker, or it involves judicial examination of the quality of the reasons for the decision itself, rather than the quality of the process adopted by the decision-maker. The chapter first considers the doctrine of reasonableness or rationality in administrative law before discussing the doctrine of proportionality and the notion of judicial deference in relation to variable intensity review. It also explores the role of the proportionality test in English law and the question of whether English courts are heading towards jettisoning the reasonableness doctrine in favour of utilizing proportionality in all relevant cases.
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3. The Transfer of Powers and Union Competences
This chapter examines the multifaceted and increasingly complex relationship between the European Union and its member states. The chapter begins with the transfer of sovereign powers and the democratic legitimacy of the Union and the establishment of constitutionalism within the Union. Section 3.4 considers the transfer of powers from the member states and the division and control of competences between the Union and the member states. In this context, the principles of subsidiarity and of proportionality are discussed, which are the political solutions to the very emotive questions about how power is shared between the Union and the member states.
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12. Grounds for judicial review Irrationality, proportionality, merits-based judicial review, and the Human Rights Act 1998
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 grounds for judicial review. These include irrationality—meaning unreasonableness—which is now linked to the principle of proportionality. In addition, the relevant case law and key principles concerning distinction between procedural and merits-based judicial review are fully explained. The impact of the Human Rights Act 1998 on judicial review is assessed generally. The emergence and development of the ‘outcomes is all’ approach to judicial review where breach of Convention rights is alleged is explored by examining a number of significant House of Lords cases.
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11. Abuse of Discretion
Sir William Wade and Christopher Forsyth
This chapter examines the sovereign principle that powers must be exercised reasonably and in good faith and on proper grounds — in other words, that they must not be abused. This is one of the twin pillars that uphold the structure of administrative law. Topics discussed include the justification for review on substantive grounds; the rule of reason; the principle of proportionality; categories of unreasonableness; mixed motives and good faith; and statutory reasonableness.
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7. Decision-Making and New Forms of Governance
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter introduces the debate over new modes of decision-making and governance in the EU, and provides an account of the apparent shift towards greater use of these over time. The language of ‘new’ forms of governance in the EU refers to the move away from reliance on hierarchical modes towards more flexible modes as the preferred method of governing. A number of examples of new governance instruments and methods are provided, in particular the ‘new approach to harmonization’ and the ‘open method of coordination’. A number of other EU governance reform initiatives related to the new governance debate are also discussed, such as the subsidiarity and proportionality principles, the ‘better regulation’ initiative, and the Commission White Paper on Governance and its follow-up. The UK version contains a further section analysing issues of new governance in relation to the UK post-Brexit.
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11. Abuse of Discretion
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter examines the sovereign principle that powers must be exercised reasonably and in good faith and on proper grounds—in other words, that they must not be abused. This is one of the twin pillars that uphold the structure of administrative law. Topics discussed include the justification for review on substantive grounds; the rule of reason; the principle of proportionality; categories of unreasonableness; good faith; and statutory reasonableness.
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10. Proprietary Estoppel
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter is concerned with proprietary estoppel. Proprietary estoppel is a means by which a party (B) can gain some protection against an owner of land (A), even if B has no contract with A and even if A has not formally given B a property right in relation to A’s land. Proprietary estoppel is therefore a means by which B can obtain an equitable interest in A’s land. It is noted that proprietary estoppel is very different from other forms of estoppel; so different that the term ‘estoppel’ is positively misleading. The chapter considers the requirements of a proprietary estoppel claim, including the role of unconscionability, how the courts determine the extent of any right arising through proprietary estoppel, and the impact of such rights on third parties.
