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Chapter

Cover Public Law

7. Protecting Rights  

This chapter examines the development and nature of constitutional rights. The discussions cover the European Convention on Human Rights (ECHR); the campaign to incorporate the ECHR into UK law; the Human Rights Act 1998 (HRA); a case study on prisoner voting Hirst v UK (No. 2); criticisms of the HRA; the European Union and human rights.

Book

Cover Public Law Directions
Public Law Directions provides a balance of depth, detail, context, and critique. The aim is to empower readers to evaluate the law, understand its practical application, and confidently approach assessments. The text offers scene-setting introductions and highlighted case extracts, making the practical importance of the law clear. It shows readers when and how to critically evaluate the law by introducing the key areas of debate and encourages a questioning attitude towards the law. Topics covered include: the UK constitution; constitutional principles and values; power in the UK including an examination of the three arms of state; an analysis of the relationship between the individual and the state; and a close examination of human rights, including a look at the Human Rights Act 1998.

Book

Cover Complete Public Law
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. Complete Public Law combines clear explanatory text and practical learning features with extracts from a wide range of primary and secondary materials. The book has been structured with the needs of undergraduate courses in mind. Opening with consideration of basic constitutional principles (in which no previous knowledge is assumed), the chapters move on to cover all other essential areas, before closing with consideration of the principles and procedures of judicial review. This edition includes substantial updates to address the UK’s withdrawal from the European Union and the constitutional implications these new arrangements have, including in the context of devolution.

Chapter

Cover Administrative Law

4. The Scope of Public Law Principles  

Mark Elliott and Jason Varuhas

This chapter examines the scope of judicial review as it applies to the principles of public law. It first explains why discretionary powers conferred by legislation are not always subject to judicial review before discussing prerogative powers and their amenability to judicial review. It then considers justiciability as the limiting factor in the extent to which the in-principle reviewability of the prerogative is of any practical significance. It also examines issues regarding de facto powers, with particular emphasis on the scope of judicial review, the limits of review and its underlying rationale, and the extent to which contractual arrangements may displace the courts' willingness to review. Finally, it explores which public bodies must respect human rights under Section 6 of the Human Rights Act 1998. A number of relevant cases are cited throughout the chapter, including R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.

Chapter

Cover Public Law

16. Introduction to Judicial and Dispute Resolution Functions  

This chapter provides an overview of the themes covered in Part 4 of the book, consisting of Chapters 16 to 20. Chapter 17 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 18 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapter 19 examines the grounds on which the courts will judicially review the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.

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 Administrative Law

15. Liability of Public Authorities  

Mark Elliott and Jason Varuhas

This chapter examines the nature and operation of the liability of public authorities, with particular emphasis on the tensions between the equality principle, a concern that authorities ought to be specially protected, and a concern that authorities ought to be subject to wider and more onerous obligations. The chapter first considers the relationship of public authority liability with judicial review and goes on to discuss the law of torts, especially the tort of negligence and what circumstances courts ought to impose negligence liability on public authorities for harm caused through exercises of statutory discretion. It then explores negligence liability in relation to omissions, human rights, and misfeasance in public office. It also reviews damages under the Human Rights Act 1998, contracts, restitution, and state liability in European Union law.

Book

Cover The Changing Constitution

Edited by Sir Jeffrey Jowell and Colm O'Cinneide

Since its first edition in 1985, The Changing Constitution has provided analysis of the key issues surrounding the UK’s constitutional development, and debates around reform. The ninth edition of this volume is published at a time of constitutional turbulence, with Brexit putting pressure on key aspects of the UK’s unwritten constitutional system. Other aspects of the UK constitution are also in a state of flux, and continue to generate political and legal controversy: the legal protection of human rights, understanding of parliamentary sovereignty and the rule of law, separation of powers, restructuring of the system of justice, the regulation of access to information and data privacy, and pressures for increased devolution to Scotland, Wales and Northern Ireland. These issues and more are covered in this latest edition of one of the UK’s leading texts on the constitution, which includes contributions from a range of leading public law scholars.

Book

Cover Essential Cases: Public Law
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. Essential Cases provides you with succinct summaries of some of the most influential, landmark cases in public law. Each summary begins with a review of the main case facts and decision. The summary is then concluded with expert commentary on the case from the author, Thomas Webb, including the wider questions raised by the decision for you to consider.

Book

Cover Essential Cases: Public Law
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. Essential Cases provides you with succinct summaries of some of the landmark and most influential cases in public law. Each summary begins with a review of the main case facts and decision. The summary is then concluded with expert commentary on the case from the author, Thomas Webb, including his assessment of the wider questions raised by the decision for you to consider.

Chapter

Cover Public Law

20. Using Human Rights in the United Kingdom Courts  

This chapter examines the use of human rights in the domestic courts of the UK. The chapter is organized as follows. Section 2 considers the main features of the Human Rights Act 1998 (HRA). Section 3 looks at the issue of judicial deference to the executive and Parliament in human rights situations. Sections 4 and 5 examine two case studies. The first of these is the litigation brought by Shabina Begum challenging her school’s decision preventing her from wearing a jilbab to school. The second case study considers the litigation that followed the enactment of Pt IV of the Anti-terrorism, Crime, and Security Act 2001, and the challenges to control orders imposed under the Prevention of Terrorism Act 2005.

Chapter

Cover Administrative Law

9. Bias, Impartiality, and Independence  

Mark Elliott and Jason Varuhas

This chapter examines the notions of impartiality (and bias) and independence. It first provides an overview of the scope and rationale of the rule against bias before discussing the connection between impartiality and procedural fairness. It then reviews the ‘automatic disqualification rule’ by which a decision-maker can be disqualified if he/she has a sufficient financial interest in the outcome of the decision-making process. It also explores the apprehension of bias and the ‘fair-minded observer rule’, along with the political dimensions of the rule against bias. Finally, it considers Article 6 of the European Convention on Human Rights in an administrative context and when Article 6(1) applies to administrative decision-making. A number of relevant cases are cited throughout the chapter, including R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256.

Chapter

Cover Constitutional and Administrative Law

17. Freedoms and liberties in the United Kingdom  

This chapter is concerned with how freedoms and liberties might be protected in the UK. It begins with an attempt to distinguish between human rights and civil liberties, whilst recognizing that this is by no means a straightforward task. It then covers political and social or economic rights, the traditional means of protecting civil liberties in the UK, the European Convention on Human Rights, the incorporation of the Convention into English law, and judicial deference/discretionary areas of judgment. The Human Rights Act 1998 is reviewed from a protection of rights perspective. Finally, the question of a Bill of Rights for the UK is considered, along with reform intentions relating to the 1998 Act.

Chapter

Cover Essential Cases: Public Law

Ireland v United Kingdom (1979-80) 2 EHRR 25, 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 Ireland v United Kingdom (1979-80) 2 EHRR 25, European Court of Human Rights. This case concerned whether interrogation techniques employed by the United Kingdom in Northern Ireland between 1971 and 1975 amounted to torture or inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights. More generally, the case note considers the differences between absolute, limited, and qualified rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Ireland v United Kingdom (1979-80) 2 EHRR 25, 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 Ireland v United Kingdom (1979-80) 2 EHRR 25, European Court of Human Rights. This case concerned whether interrogation techniques employed by the United Kingdom in Northern Ireland between 1971 and 1975 amounted to torture or inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights. More generally, the case note considers the differences between absolute, limited, and qualified rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Administrative Law

3. Human rights law  

The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.

Chapter

Cover Public Law

19. Human Rights and The UK Constitution  

This chapter examines human rights protection in the UK. It examines the reasons why the Human Rights Act 1998 (HRA) was enacted, the effects of the HRA, the principal mechanisms through which the HRA affords protection to human rights in UK law; the scope of the HRA; and the debate concerning the potential repeal, reform, or replacement of the HRA. The chapter also introduces the notion of human rights, including the practical and philosophical cases for their legal protection, and the European Convention on Human Rights, to which the HRA gives effect in UK law.

Chapter

Cover Public Law

18. The European Convention on Human Rights and the Human Rights Act 1998  

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts. This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts’ historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

Chapter

Cover Public Law

20. Protecting Rights: Using Human Rights in the United Kingdom Courts  

This and the next chapter examine how human rights are protected in the domestic courts of the UK. This chapter considers the background and main features of the Human Rights Act 1998 (HRA) and the relationship between the courts and the executive and Parliament in human rights situations. Chapter 21 examines three case studies. The first of these is the litigation brought by Shabina Begum challenging her school’s refusal to allow her to wear a jilbab to school. The second case study considers the application of the Human Rights Act in the context of anti-terrorism measures. The third considers prisoner voting.

Chapter

Cover The Changing Constitution

3. Human Rights and the UK Constitution  

Colm O’Cinneide

UK law relating to civil liberties and human rights has undergone radical transformation over the last few decades, in part because of the influence exerted by the European Convention on Human Rights (‘the ECHR’) on British law. The Human Rights Act 1998 (‘the HRA’), which incorporates the civil and political rights protected by the ECHR into national law, now plays a key role in the UK’s constitutional system. It complements legislative mechanisms for protecting individual rights—such as the Equality Act 2010 —and imposes significant constraints on the exercise of public power. However, the current state of UK human rights law is controversial. The HRA is regularly subject to political attack, while leading politicians bemoan the influence exerted by the ECHR over UK law: yet no consensus exists as to how human rights should best be protected within the framework of the British constitution. It remains to be seen whether Brexit will change the dynamics of this debate.