Public Law

Approach to evaluation of regulatory laws developed by Government's Better Regulation Taskforce, analysis of 1991 Act using these evaluation methods and lessons that may be drawn for evaluation of other legislation.

Considers the scope of the Human Rights Act 1998 s.6(3)(b), which allows judicial review of "functions of a public nature" if exercised incompatibly with the European Convention on Human Rights 1950 and notes the consequences of interpreting the phrase broadly, including the risk of litigation between private parties. Reviews case law on its interpretation, including the Court of Appeal ruling in R. (on the application of Heather) v Leonard Cheshire Foundation and the House of Lords' decision in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and comments on the distinctions between s.6(3)(b) of the 1998 Act and the public function test under CPR Part 54. Discusses the difficulties posed for many broad interpretations of s.6 by misleading terminology and the advantages of the approach adopted by the Queens Bench Division in R. (on the application of A) v Partnerships in Care Ltd.

Considers the options for imposing liability on the state for losses incurred by citizens through official action and for obtaining compensation, questioning the extent to which the state is protected by Crown immunity. Comments on academic writings, including those of H. Street, and compares this to other legal systems. Suggests how compensation could be administered and paid, and how discretionary ex gratia payments work, highlighting examples of public scandals which led to compensation being paid. Notes the provisions of the Law Commission consultation paper on administrative redress and other public policy governing state compensation schemes

The definition of 'terrorism' has long been controversial in legal discourse, so much so that the Government has instituted a review by Lord Carlile. Attempts to date have often resulted in vague formulations which bring charges of uncertainty and excessive police and prosecutorial discretion. In United Kingdom law, examples include police powers to arrest and stop and search, as well as offences concerning the glorification of terrorism. This paper explores how the definition has been developed in United Kingdom law, set against a background of comparable jurisdictions and international law. It advocates the 'scheduled offence in context' approach as a way of ensuring certainty and proportionality, as well as better complying with international law expectations and the overwhelming requirement for law to aid a return to normality rather than to impede it.

Argues for the establishment of legislative scrutiny standard statements to improve the quality of the Bills presented to Parliament. Examines the range of scrutiny standards currently produced within Government, the benefits of developing objective standards for Parliamentary scrutiny of legislation, the main features of such a strategy and the proposals of the House of Lords Constitution Committee for a checklist to be used by parliamentary committees. Considers key elements of the standards and checklists used in the legislative processes of New Zealand and Australia, highlights the points of particular interest to the UK, including compatibility with human rights legislation, and explains how such a system might be implemented successfully.

Reflects on the degree to which the courts should approach public interest issues by way of deference to Parliament and other governmental bodies in the light of the Human Rights Act 1998. Examines Lord Hoffmann's approach to the meaning of the term "deference" in R. (on the application of Pro-Life Alliance) v British Broadcasting Corp and the distinction between the roles of the courts and Parliament drawn in R. (on the application of Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions. Discusses whether Lord Hoffmann's deliberations in Pro-Life Alliance help to clarify the necessary approach to the question of judicial deference. Considers the status of the democratic principle under the 1998 Act and the limits on the courts' institutional capacity. Notes the different judicial approaches to the issue of deference by Parliament and the broadcasting authorities revealed in Pro-Life Alliance.

This article centres on the position of children as 'democratic citizens'. Incorporating discussions of key aspects of democratic and citizenship theory, it considers the ways in which children may interact with, and contribute to, the exercise of political power in democratic societies. Having briefly discussed the position of children vis-à-vis democratic processes, the author focuses on that provision of the Convention on the Rights of the Child (CRC) which is arguably of greatest use in terms of serving as a springboard for children to input into democratic decision-making processes that affect them: Article 12 CRC. The author proceeds to consider the approach of the Committee on the Rights of that Child to children’s participation rights under the CRC, arguing that the Committee has failed to construe and apply Article 12 in such a way as to address effectively children’s exclusion from democracy. This gap in the Committee’s jurisprudence necessarily filters down into the practice of states. The article concludes by highlighting key points that should be borne in mind when arguing in favour of particular mechanisms and structures aimed at increasing child participation in democratic decision-making and hence strengthening their democratic citizenship.

The British Government is considering changing the rules of succession to the Crown to remove discrimination against women and Catholics. This article discusses the consequences of this proposal for the 'Realms', being the other fifteen countries of which the Queen is Sovereign. It discusses the relevance of the Statute of Westminster and whether parliamentary assent of the Realms is required. It also analyses the impact of such a change on a number of Realms, including Australia, New Zealand and Canada. It considers whether the British changes would automatically affect who becomes Sovereign in these Realms, or whether each Realm would have to change its own laws. In those Realms that are federations, consideration is also given to the source of constitutional power to make such legislative changes.

International tribunals including the European Court of Human Rights (“ECtHR”) face a substantial structural handicap: they operate in a system which lacks the coercive force to enforce their judgments. Thus, to at least some extent, the execution of their judgments depends on them issuing rulings that are considered legitimate by reference to the method of their reasoning. One of the methods of reasoning commonly applied by the ECtHR is that of “European consensus”; an argument based on comparative analysis. While “European consensus” is used by the court, the Convention itself does not contain any definition, criteria or regulation of the concept. Moreover, the ECtHR has not clearly defined what it means by European consensus and it has not been analysed systematically in academic work.This paper argues that European consensus as employed by the ECtHR is a legitimising tool, but that its potential can be unlocked only if the court clearly states its meaning and application. It is a legitimising method of reasoning because it brings clarity and foreseeability to case law in relation to almost all Convention rights, although it has never been the sole basis of a judgment and therefore plays a subsidiary, albeit important, legitimising role.Part one considers the general framework for the analysis of legitimacy. It addresses general concepts of legitimacy and considers the factors that are relevant in the assessment of the legitimacy of an argument the ECtHR incorporates in its reasoning. It is suggested that European consensus should be sufficiently persuasive and procedurally clear if it is to enhance legitimacy. Part two deals with the crisis of legitimacy relative to European consensus that has been articulated by some commentators. It identifies those weak points that can be mitigated through clarity and transparency of the court's reasoning. Part three defines the European consensus as it is used by the European Court. The logic that is used by the court in identification of consensus is used by national and international tribunals all over the World. This part outlines and analyses the different types of consensus considered by the ECtHR.

Questions whether Dicey's belief that the constitutional principle of parliamentary sovereignty took priority over the rule of law still holds true, or whether the courts are beginning to acquire, and exercise, the power to challenge Acts of Parliament. Considers the nature of an unwritten constitution, the concept of power and authority in a constitutional democracy, the challenge raised to the validity of the Parliament Act 1949 in R. (on the application of Jackson) v Attorney General, and dicta in Jackson challenging the absolute sovereign authority of Parliament. Identifies two possible justifications for limiting Parliamentary sovereignty: legitimacy and the changing hypothesis of constitutionalism, based primarily on the judicial review of administrative action.

Scottish Parliament's continuing reliance on Westminster legislation since devolution, whether consent process is working correctly and need for effective arrangement for scrutiny of legislation.

Hong Kong has recently enacted legislation to provide a framework for the screening of claims for non-refoulement protection under the Convention Against Torture. As the only jurisdiction to administer a screening mechanism solely focused on non-refoulement claims on the ground of torture, Hong Kong’s new statutory scheme commands attention. It is also significant for other reasons. The Legislative Council was prompted to act following fairly robust judicial review into the procedural deficiencies of the then non-statutory torture screening mechanism. The Hong Kong courts held that the torture screening mechanism must meet a “high standard of fairness” which in consequence required systemic changes and enhanced protection for torture claimants. This article will broadly examine aspects of the new statutory scheme, the instrumental role of judicial review in bringing it about and the need for the court to provide a clear and searching standard in future review of torture claim decisions.

Discusses the likelihood that, in the absence of official guidelines on the choice of short title for new Bills submitted to the Westminster Parliament, increasingly the US practice of giving Bills "sloganising" or personalised short titles will be emulated. Reports on the views of parliamentarians about the use of evocative language in Bill titles. Outlines the formal and informal rules and practices followed by Office of the Parliamentary Counsel in the naming of Bills, and suggests five guidance points for the selection of a short title.

Full text available at: http://ssrn.com/abstract=2244891 In October 2012, the British and Scottish governments formed an historic agreement for the holding of referendum on Scottish independence from the United Kingdom, to be held in 2014. The Scottish Government had previously asserted that the Scottish Parliament had the power under the Scotland Act 1998 to enact an enabling law for such a referendum, but the British Government rejected this view, insisting that an Order in Council would have to be made under section 30 of the Scotland Act in order to empower the Scottish Parliament to do so. The agreement between the two governments presupposes that the British Government’s view is correct. Although the question concerning the competence of the Scottish Parliament thus seems to have been politically resolved, the underlying constitutional issue remains an important one. The two competing views about the power of the Scottish Parliament shaped attempts by the Scottish and British governments to determine the political agenda surrounding the referendum. If the anticipated referendum law passed by the Scottish Parliament were to deviate from the conditions of the s 30 Order, the constitutionality of the law could be challenged before the courts. Moreover, referendums are an appeal to the ‘sovereign’ will of the people. The location of the authority to call a referendum – especially one about Scottish independence – is accordingly one of the most potent indicators of the current state of British devolution and of the powers of the Scottish Parliament that might be imagined. With this background in mind, this article examines the question whether the Scottish Parliament has the unilateral legislative competence to authorise a referendum on Scottish independence. To do this, the article undertakes a close reading of the Scotland Act, a critical consideration of the relevant British court decisions, and makes qualified use of the lessons that Canadian and Australian federalism jurisprudence can provide. It is shown that there are several analogies and dis-analogies between the British, Canadian and Australian systems which make comparison between the systems a complex but nonetheless potentially rewarding task. In the light of this comparison, it is concluded that, although the matter is not without doubt, it is most likely that a court would conclude that the Scottish Parliament does not have the unilateral competence to authorise an independence referendum apart from an appropriate s 30 Order or legislative amendment to the Scotland Act. It follows that the Scottish Government was probably wise to settle the agreement with the British Government on the basis that a s 30 Order would be necessary.

It is now common to speak of Northern Ireland as being "in transition." This label, however, along with that of human rights, while ubiquitous in the academic literature is in and of itself the subject of considerable debate. There are three key aspects of public law thrown into sharp focus by recent events in Northern Ireland. The first is the legitimacy of the state, and therefore the law making and enforcement processes. The second and third, not unrelated, issues, concern the relationship between law and politics, exemplified in the debate over the need for a bill of rights. This article suggests that there are deep and fundamental divisions between the parties that have their roots in firmly established theories of law state and society.

Jeremy Waldron has long argued that judicial review is inconsistent with the importance that democracies properly attach to political participation and to equality. This paper looks at those arguments as recently summarised in a paper called “The Core of the Case Against Judicial Review”. Waldron’s arguments highlight the apparent incongruity of a democracy giving a small group of unelected judges the last word on matters which concern citizens and legislators, and on which citizens and legislators may be at least as well-informed, and capable of reasoned decisions, as judges. In addition to a properly functioning judiciary, Waldron believes, democracies should normally be expected to have citizens and legislators who care about, and are capable of protecting, the basic rights of members. Hence, he claims, there is no compelling reason to prefer the decisions of judges to legislators where rights are at stake, and good reasons to believe that doing so detracts from important democratic values and rights. [First paragraph]

The quest for “better” regulation is one being driven forward with a new urgency within the United Kingdom, the European Union and by international bodies such as the OECD. In this country, regulatory improvement strategies have been applied by governments for nearly 20 years and it is now appropriate to consider whether the better regulation movement is founded on secure approaches and assumptions; whether it is heading in the right conceptual direction, and, more particularly, whether it conduces to “smarter” regulatory regimes--regimes that offer the best mixtures of regulatory instruments and institutions.1 This article outlines the development of the better regulation movement within government, it describes the regulatory improvement tools that governments have deployed in furthering that movement, and then it considers the capacity of the “better regulation” approach to deliver smarter regulation. It will be argued that there are a number of identifiable reasons--practical and theoretical--why the better regulation movement may not readily conduce to the production of “smarter” regulatory policies and regimes.