This chapter explores the scope and nature of the European Union's legislative competences. Based on the principle of conferral, the EU must act within the scope of competences conferred upon it by the Member States. Three legal developments have significantly undermined the principle of conferral in the past. First, there has been a rise of teleological interpretation. The EU's competences are here interpreted in such a way that they potentially ‘spill over’ into other policy areas. The second development is the rise of the EU's general competences. The EU enjoys two very general legislative competences that horizontally cut across the various policy titles within the EU Treaties: Articles 114 and 352 TFEU, which concern internal market competence and residual competence, respectively. The third development is the doctrine of implied external powers. The chapter then studies the different categories of EU competences: exclusive, shared, coordinating, and complementary.
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This chapter explores the scope and nature of the European Union’s competences. Based on the principle of conferral, the EU must act within the scope of competences conferred upon it by the Member States. Three legal developments have significantly undermined the principle of conferral in the past. First, there has been a rise of teleological interpretation. The EU’s competences are here interpreted in such a way that they potentially ‘spill over’ into other policy areas. The second development is the rise of the EU’s general competences. The EU enjoys two very general legislative competences that horizontally cut across the various policy titles within the EU Treaties: Articles 114 and 352 TFEU, which concern internal market competence and residual competence, respectively. The third development is the doctrine of implied external powers. The chapter then finally studies the different categories of EU competences: exclusive, shared, coordinating, and complementary.
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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 discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Where parents cannot agree with each other about serious medical treatment, or where the treatment is especially controversial, decisions might also need to go before a court. Cases involving withdrawing or withholding life-prolonging treatment are also covered. In relation to mature minors, it discusses the concept of Gillick-competence and the difference that has arisen between the child’s right to consent to medical treatment and her much more limited right to refuse.
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Chapter 13 examines three broad issues pertaining to witnesses. First, it considers whether certain categories of persons may be incompetent to testify, or, even if competent to testify, may not be compellable to do so. It then examines the relaxation of the rules on corroboration, and the emergence of a more contemporary approach to possibly unreliable witnesses. Finally, it investigates the availability and adequacy of any special measures or procedures for easing the burden on testifying witnesses.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter covers witnesses, who are a principal source of evidence, and the rules relating to their attendance. All witnesses with relevant information are assumed to be competent to give evidence and usually compellable to give evidence, as the court may summon them to attend. Interests of the witness are secondary to the need of the court to have all necessary information. Some witnesses who are competent may claim a privilege not to give evidence, including defendants on their own behalf. Other exceptions comprise spouses or civil partners testifying for the prosecution. This is based on the concept that compulsion may lead to marital discord. The chapter also includes a review of Special Measures Directions for vulnerable witnesses.
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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 Council ('Environmental crimes') (Case C-176/03), EU:C:2005:542, [2005] ECR I-7879, 13 September 2005. The document also includes supporting commentary from author Noreen O’Meara.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Germany v Parliament and Council (‘Tobacco Advertising I’) (Case C-376/98), EU:C:2000:544, [2000] ECR I-8419, 5 October 2000. The document also includes supporting commentary from author Noreen O’Meara.
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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. The existence and scope of EU competence are outlined in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action. This chapter examines these three principal categories of EU competence, and their implications for the divide between EU and Member State power. It also considers certain areas of EU competence that do not fall within these categories, and the extent to which the new regime clarifies the scope of EU competence and contains EU power. The UK version contains a further section analysing issues of EU competence in relation to the UK post-Brexit.
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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. The existence and scope of EU competence are outlined in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action. This chapter examines these three principal categories of EU competence, and their implications for the divide between EU and Member State power. It also considers certain areas of EU competence that do not fall within these categories, and the extent to which the new regime clarifies the scope of EU competence and contains EU power. The UK version contains a further section analysing issues of EU competence in relation to the UK post-Brexit.
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6. Witnesses
Competence and compellability; oaths and affirmations
This chapter is divided into two parts. The first part discusses the law on witness competence and compatibility. The general rule of law in England and Wales is that all witnesses, including children, are competent (able to give evidence) and witnesses are also compellable (liable to be required to give evidence subject to sanction for contempt). Particular rules apply to children and persons under disability, the accused in a criminal case, and spouses and civil partners. The second part deals with oaths and affirmations, covering the requirement of sworn evidence; the effect of oaths and affirmations; and exceptions to the requirement of sworn evidence.
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This chapter discusses the following: (i) the competence and compellability of witnesses (including the special rules that apply in the case of the accused, the spouse or civil partner of an accused, persons with a disorder or disability of the mind, the Sovereign, diplomats, and bankers); (ii) oaths and affirmations; (iii) the use of live links; (iv) the time at which evidence should be adduced; (v) witnesses in civil cases (including the witnesses to be called and the use of witness statements); (vi) witnesses in criminal cases (including the witnesses to be called, the order of witnesses, evidence-in-chief by video recording and special measures directions for vulnerable and intimidated witnesses); (vii) witness anonymity; and (viii) witness training and familiarization.
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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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This chapter discusses the following: (i) the competence and compellability of witnesses (including the special rules that apply in the case of the accused, the spouse or civil partner of an accused, persons with a disorder or disability of the mind, the Sovereign, diplomats, and bankers); (ii) oaths and affirmations; (iii) the use of live links; (iv) the time at which evidence should be adduced; (v) witnesses in civil cases (including the witnesses to be called and the use of witness statements); (vi) witnesses in criminal cases (including the witnesses to be called, the order of witnesses, evidence-in-chief by video recording and special measures directions for vulnerable and intimidated witnesses); (vii) witness anonymity; and (viii) witness training and familiarization.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Germany v Parliament and Council (‘Tobacco Advertising I’) (Case C-376/98), EU:C:2000:544, [2000] ECR I-8419, 5 October 2000. The document also includes supporting commentary from author Noreen O’Meara.
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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 Council (‘Environmental crimes’) (Case C-176/03), EU:C:2005:542, [2005] ECR I-7879, 13 September 2005. The document also includes supporting commentary from author Noreen O’Meara.
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This chapter discusses children’s medical treatment. It looks at the limits of parental decision-making, and cases in which the courts have overruled parental wishes in order to protect the child’s best interests. Courts may also be asked to resolve disputes between parents, or to make decisions about particularly controversial treatments. If a mature minor is Gillick-competent, she can give consent to medical treatment, but her right to refuse life-saving treatment may be more limited.
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Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Germany v Parliament and Council (‘Tobacco Advertising I’) (Case C-376/98), EU:C:2000:544, [2000] ECR I-8419, 5 October 2000. The document also includes supporting commentary from author Noreen O'Meara.
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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 Council (‘Environmental crimes’) (Case C-176/03), EU:C:2005:542, [2005] ECR I-7879, 13 September 2005. The document also includes supporting commentary from author Noreen O'Meara.
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This chapter examines the lawmaking powers of the European Union (EU) in the context of its Treaties. It explains that the EU has the competence to make law of various types (including secondary legislation, soft law, delegated acts and implementing acts) in a broad range of areas and that the amendments to the lawmaking procedures have affected the institutional balance, giving an increased role to the European Parliament. It discusses the changes made to improve the level of democracy at EU level, to address concerns that EU law-making has a ‘democratic deficit’ and lacks transparency and proportionality. The chapter also considers the different aspects of EU competence, describes the lawmaking process and sources of EU law and also addresses questions concerning the determination of exclusive, shared and concurrent competence, particularly in the context of subsidiarity. Furthermore, it examines the rules on the EU adopting legislation without all Member States participating (closer cooperation).
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This chapter examines the effectiveness and impact of judicial review in terms of the accessibility of judicial review, the competence and capacity of the courts to review administrative action, and the impact of judicial review on government. Access to judicial review is constrained in various ways. Legal costs, restrictions on legal aid, uneven access to legal advice and services, the variable operation by the court of the permission to proceed requirement, and delays within the court can all limit the accessibility and effectiveness of the judicial review procedure.
