This chapter provides an overview of the themes covered in Part II of the book, consisting of Chapters 8-11. It addresses the following questions: What is executive function? What is the role of a constitution in relation to executive functions? It then summarizes the basic constitutional and legal aspects of the various executive bodies considered in Chapter.
Chapter
8. Introduction to Executive Functions
Chapter
2. Constitutions and Constitutional Law
This chapter examines the specific functions and characteristics of constitutions in general terms—thinking of what the constitutions of Western democratic countries are typically like—rather than with particular reference to the UK, and then considers how the UK’s constitutional arrangements measure up. This is followed by three case studies that illustrate how the different topics considered in this book relate to one another, and which also provide an overview of the type—and importance—of the issues with which public law is concerned.
Chapter
1. Administration and the principles of the constitution
Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include the core principle of administrative law: opposition to arbitrary use of power. That principle is introduced through the story of habeas corpus from the middle ages to the twenty-first century. The constitutional principles of administrative law also include parliamentary sovereignty, the separation of powers, the rule of law, comity among constitutional authorities, accountability, and a newly emerging principle of open government. The chapter shows how the common law and legislation can achieve adherence to these principles of administrative law.
Chapter
R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, Supreme Court (also known as R (on the application of Buckinghamshire CC))
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, Supreme Court (also known as R (on the application of Buckinghamshire CC)). This case note is concerned primarily with the distinction between ordinary and constitutional statutes, and what happens where two constitutional statutes are in conflict. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, Supreme Court (also known as R (on the application of Buckinghamshire CC))
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, Supreme Court (also known as R (on the application of Buckinghamshire CC)). This case note is concerned primarily with the distinction between ordinary and constitutional statutes, and what happens where two constitutional statutes are in conflict. The document also includes supporting commentary and questions from author Thomas Webb.
Book
Neil Parpworth
The purpose of this book is to introduce the reader to the fundamental principles and concepts of constitutional and administrative law. It is highly popular with undergraduates for its clear writing style and the ease with which it guides the reader through key principles of public law. This twelfth edition incorporates the significant developments in this ever-changing area of the law. The book also includes a range of useful features to help students get to grips with the subject matter. These include further reading suggestions to support deeper research, a large number of self-test questions to help reinforce knowledge, and chapter summaries and numbered paragraphs to aid navigation and revision. This new edition has been fully updated to cover all the latest reforms in constitutional and administrative law, including those relating to devolution and Brexit.
Chapter
2. Constitutions and Constitutional Law
This chapter examines the specific functions and characteristics of constitutions in general terms—thinking of what the constitutions of western democratic countries are typically like—rather than with particular reference to the UK, and then considers how the UK’s constitutional arrangements measure up. The fact that important principles in the UK are not written into laws that have special, higher constitutional status does not mean that there are no such principles. The chapter then outlines lessons learnt from two periods in recent constitutional history: the ‘New Labour’ governments and the Brexit era; both of which, in constitutional terms, were characterised by far-reaching reforms. These topics provide an overview of the type—and importance—of the issues with which public law is concerned.
Chapter
7. Introduction to Executive Functions
This chapter provides an overview of the themes covered in Part II of the book, consisting of Chapters 8–10. It addresses the following questions: What is the executive function? Broadly, this can be defined as the powers of government to decide issues of policy, to raise and spend public money, and to implement decisions. What is the role of a constitution in relation to executive functions? Generally, we can say that constitutions have a dual role: they enable executive action (by providing institutional and procedural frameworks for decision-making) and they also constrain it (to ensure that it stays within what is permitted by law and to make governments accountable for their actions). It then summarizes the basic constitutional and legal aspects of the various executive bodies considered in the Chapter.
Chapter
14. Delegated Legislation
This chapter is about delegated legislation, also called ‘subordinate’ and ‘secondary’ legislation. It considers why the constitution allows ministers (part of the executive) to make such legislation and the process by which it is made. It examines a case study on a controversial attempt by the government to abolish numerous institutions through powers conferred by the Public Bodies Act 2011.
Chapter
12. Coursework
The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter contains some advice on writing coursework. The contents range from the mechanics of how coursework fits into the assessment of the module to the rules on presentation and referencing. The standard referencing system used for law is OSCOLA, the Oxford University Standard for the Citation of Legal Authorities. There is advice on researching coursework, such as the use of primary legal materials and articles, an explanation about how the coursework might be marked, and some straightforward advice on plagiarism is given. A coursework example question, with accompanying answer guidance, is also available.
Chapter
4. Articles of association
This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.
Chapter
4. Effective disposition of benefit: constitution of trusts
This chapter explains the reasons why a trust must be completely constituted in order to be valid and discusses the steps that must be taken in order to constitute a trust. Constitution matters because the beneficiaries of an incompletely constituted trust are ‘mere volunteers’ and therefore will not be assisted by equity. In other words, they do not have any rights in the trust property and thus cannot enforce the trust in court. Following the law, equity ‘will not assist a volunteer’ and ‘will not perfect an imperfected gift’. In order to have a ‘perfect’ gift, the donor must actually complete the disposition of the subject matter in favour of the intended donee or execute a formal ‘deed of gift’. The chapter also considers various modes of constitution of trusts, the court ruling in Strong v. Bird, and gifts made in contemplation of death.
Chapter
5. The House of Commons
This chapter examines the relationship between the government and the House of Commons, in order further to develop arguments concerning the doctrines of parliamentary sovereignty and the separation of powers within the contemporary constitution. Consideration is given both to the role played by the House of Commons within the legislative process and its effectiveness as a means to provide scrutiny of and challenges to the ways in which the government exercises its statutory and prerogative powers. The chapter argues that, for most of the modern era, the House of Commons has been a body in which party politics is the dominant determinant both in the legislative process and in respect of executive accountability and asks if we should accept that the Commons is manifestly now a factional rather than national assembly for most purposes. But it is also suggested that it would be premature to conclude that the constitution permits factional concerns to determine both the content of legislation and the parliamentary accountability of government behaviour.
Chapter
4. Articles of association
This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.
Chapter
11. The Availability of Judicial Review
This chapter deals with the availability of judicial review and its significance in the constitution. First, it considers the claim for judicial review and the exclusivity principle. It determines who can apply for judicial review and against whom and in respect of what activities judicial review may be sought. Next, it examines the discretionary nature of the remedies available in judicial review proceedings, including how the courts exercise this discretion. The chapter concludes with an examination of the courts’ response to legislative attempts to exclude or oust judicial review.
Chapter
Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case). On its face, this case concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significnatly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from author, Thomas Webb.
Chapter
Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also referred to as the Incorporation References Case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court. On its face, this case (also known as the Incorporate References case) concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significantly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from the author, Thomas Webb.
Chapter
4. Effective disposition of benefit: constitution of trusts
This chapter explains the reasons why a trust must be completely constituted in order to be valid and discusses the steps that must be taken in order to constitute a trust. Constitution matters because the beneficiaries of an incompletely constituted trust are ‘mere volunteers’ and therefore will not be assisted by equity. In other words, they do not have any rights in the trust property and thus cannot enforce the trust in court. Following the law, equity ‘will not assist a volunteer’ and ‘will not perfect an imperfected gift’. In order to have a ‘perfect’ gift, the donor must actually complete the disposition of the subject matter in favour of the intended donee or execute a formal ‘deed of gift’. The chapter also considers various modes of constitution of trusts, the court ruling in Strong v. Bird, and gifts made in contemplation of death.
Chapter
1. Introductory Matters
Mark Elliott and Jason Varuhas
This introduction provides an overview of administrative law and administrative power in the UK. It begins with a discussion of the ‘red light’ and ‘green light’ theories of administrative law, along with judicial review. In particular, it considers the scope and intensity of judicial review, why judicial review is expanding, and whether (more) judicial review is a good thing. It then examines the debate about the constitutional basis of judicial review, focusing on the ultra vires doctrine and its modified version, and whether judicial review must be related to legislative intention. It also explains administrative power in the modern UK constitution, paying attention to the main features of the devolution systems, the powers and nature of the devolved institutions, the political and legal accountability of devolved administrations, and the powers of the local government.
Chapter
27. Brexit: the legal dimension
Steve Peers and Darren Harvey
The UK left the EU on 31 January 2020, following the results of the Brexit referendum of June 2016. This chapter examines how the process for leaving the EU works and considers some of the key legal issues raised by the withdrawal of a Member State from the Union. Having first considered withdrawal from the EU prior to the entry into force of the Treaty of Lisbon, the chapter turns to Article 50 of the Treaty on European Union and the legal requirements imposed by that provision on the process of leaving the EU. This is followed by an examination of the UK–EU Withdrawal Agreement and the rules that govern the UK’s post-Brexit trading relationship with the EU.
