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Chapter

Cover Administrative Law

2. The rule of law and the rule of judges  

At common law, the judges will hold administrative conduct to be unlawful on any of three grounds: error of law (and certain sorts of error of fact), lack of due process, and the improper exercise of discretionary power. This chapter discusses how (and to what extent) the three grounds of judicial review are supported by constitutional principle. Each ground must be controlled by the principle of comity. The principle of comity requires judges to defer to administrative authorities on some issues, to some extent; the chapter explains the limits of deference and the difference—and the connections—between the rule of law and the rule of judges.

Book

Cover Public Law

John Stanton and Craig Prescott

With its fresh, modern approach and unique combination of practical application and theoretically critical discussion, Public Law guides students to a clear understanding of not only the fundamental principles of constitutional and administrative law, but how they are relevant in everyday life. Topics include: the UK Constitution; the institutions of government and the separation of powers; the rule of law; parliamentary sovereignty; the European Union; and Brexit. It also looks at the Crown and the royal prerogative; central government; Parliament; and devolution and local government. Next it presents a number of judicial reviews in the following: illegality, irrationality and proportionality, and procedural impropriety. Finally, it considers administrative justice, the European Convention on Human Rights and the Human Rights Act, and human rights in the UK.

Chapter

Cover Public Law

1. Public Law—An Introduction  

This chapter provides an overview of public law, introducing the key institutions, principles, and practices that characterise the constitutional arrangements of the United Kingdom.

Chapter

Cover Business Law

2. The English Legal system, Constitution, and Human Rights  

This chapter, in discussing the English legal system and its features, begins by outlining what the law is and some important constitutional principles. The discussion is primarily based on the institutions and personnel involved in the practice and administration of justice. It therefore involves a description and evaluation of the courts, tribunals, and the judiciary, including their powers and the rationale for such authority, as well as the mechanisms of control and accountability. The aim of this chapter is to demonstrate how the mechanisms of the justice system work. The English legal system exists to determine the institutions and bodies that create and administer a just system of law. It should be noted here that the UK does, in fact, possess a written constitution, it is merely uncodified.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

3. The Rule of Law  

This chapter discusses the constitutional principle of the rule of law. First the concept of the rule of law is introduced, including discussion and criticisms of Dicey’s understanding of the principle. The difference between formal and substantive understandings of the rule of law is explored, then the chapter examines the rule of law as a broad political doctrine requiring law to be clear and prospective. Finally, the chapter uses in depth analysis of case law to explain the idea of government according to law in the UK: it examines the need for legal authority for official acts, the principle of legality, and the rule of law as a substantive constitutional principle.

Chapter

Cover Introduction to the English Legal System

3. Sources of law: Authority and process  

This chapter considers how law is made in the UK, who makes it, and the constitutional principles which give them the authority for making it and imposing it on society. There is a detailed account of the legislative procedure of the UK Parliament, and the different types of legislation enacted by Parliament. The legislative functions of the devolved administrations are mentioned. The law-making functions of judges, particularly through case law and the interpretation of statutes, are also considered, as is the impact of the Council of Europe on human rights. Finally, an outline of the law-making processes of the European Union is given.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

3. The Rule of Law and the Separation of Powers  

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The chapter suggests that the idea of the ‘rule of law’ may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. The first relates to the substance of the relationship between citizens and government. The second is concerned with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. This chapter analyses both the way in which the courts have addressed these issues in a series of seminal judgments, and also explores various critiques of the idea of the rule of law and the role it plays in the modern British constitution offered by legal theorists from the left, right, and centre of the mainstream political spectrum.