bluuebunny/crossref_metadata_2025 huggingface dataset:
3. The Nature of the British Constitution
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

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. This chapter outlines the characteristics of the UK constitution, which is not a traditional written constitution and thus is defined as an ‘unwritten’ constitution. It is not hierarchically superior to all other law in the country, which means that Acts of Parliament cannot be compared with it by judges and be declared as unconstitutional and invalid. Neither can the UK constitution be enforced against the legislature as a result, nor is it entrenched and protected, because it can always be changed by Act of Parliament. However, it can be legally enforced by the mechanism of judicial review against the executive, meaning that the executive may legally act only within its legal power. The chapter also considers the sources that make up the UK constitution and proposed constitutional reforms.
7. Parliamentary Supremacy: the theory
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

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. Parliamentary supremacy means that the Westminster Parliament is legally entitled to pass, amend, or repeal any law it wishes. Consequently, if the House of Commons and the House of Lords pass the legislation and the monarch gives her royal assent, then no court or other body has the legal power to declare the legislation invalid. This explains why the term ‘parliamentary supremacy’ has been coined: (the Queen in) Parliament holds the supreme lawmaking power in the UK. This chapter sketches the history leading to parliamentary supremacy. It discusses the theories behind the doctrine of parliamentary supremacy; restrictions on the power of Parliament; how parliamentary supremacy compares with constitutional supremacy; and how parliamentary supremacy fits with the separation of powers and the rule of law.
9. Parliamentary Supremacy and Human Rights
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

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. This chapter examines the legislative supremacy of the UK Parliament and its impact on human rights protection (and vice versa), discussing the history of the European Convention on Human Rights (ECHR) in a UK context and the ECHR’s legal standing. It considers the Human Rights Act 1998 (HRA 1998) and its operation in the UK. The chapter addresses how the ECHR and the HRA 1998 affect parliamentary supremacy, and how the human rights context differs from the EU context as regards parliamentary supremacy. Finally, it analyses whether parliamentary supremacy provides adequate protection of human rights.
12. The Role of Constitutional Conventions
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

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. This chapter discusses the nature and extent of constitutional conventions, which are political rules that are binding upon those to whom they apply. They apply to the relationships between the Crown, Parliament, the judiciary, the civil service, and the executive, and play a key role in limiting the powers granted to institutions of government by unwritten rules or sources. Constitutional conventions also regulate key parts of the relationship between the institutions of government. The doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. There are two main branches of ministerial responsibility. One is individual ministerial responsibility-that is, a minister’s obligation to account to Parliament for his or her words and actions, and for those of his or her civil servants. The second branch of ministerial responsibility is collective ministerial responsibility. Amongst other things, collective ministerial responsibility prescribes that decisions reached by the Cabinet or other ministerial committees are binding on all members of the government, regardless of whether or not the individual ministers agree with them.
20. Judicial Review: Putting it all Together in Problem Answers
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

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. This chapter ties together the loose strands of judicial review to provide a checklist of issues that must be considered in order to diagnose a judicial review problem and to provide a legal opinion for clients. The following questions are addressed: What are judicial review problem questions designed to test? How does one approach a judicial review problem question? How does one approach whether the body may be judicially reviewed? How does one approach whether the client has standing or may intervene in an action? How does one approach whether the other preconditions are met? How does one approach the grounds for review? How does one deal with issues of remedy? How does one provide a final assessment to the client?
Complete Criminal Law
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

Complete Criminal Law offers a student-centred approach to the criminal law syllabus. Clear explanation of general legal principles is combined with fully integrated extracts from the leading cases and a wide range of academic materials. This text aims to engage the reader in an active approach to learning and to stimulate reflection about the role of criminal law, offering a complete guide to the LLB/CPE criminal law syllabus with extracts from key cases, academic materials, and explanatory text integrated into a clear narrative. It provides a range of pedagogical features, including concise summaries, diagrams, and examples. Thinking points are included to facilitate and reinforce understanding. Students are referred to the social and moral context of the law, wherever relevant, to encourage them to engage fully with the topical subject matter. This new edition includes coverage of several recent cases of importance including: a more detailed consideration than was possible in the 5th edition of Jogee; Johnson (Lewis) (secondary participation); Johnson (Wayne) (knowledge, strict liability); Golds, Joyce & Kay, Squelch, Wilcocks (diminished responsibility); Meanza (loss of control); Bowler (unlawful act manslaughter); Brandford (duress); Ray (self-defence); the Law Commission report Reform of Offences Against the Person (November 2015).
1. Introduction and general principles
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This introductory chapter discusses the theme of this volume, which is about the principles and structure of criminal law. It begins with a discussion on the definition of crime and explains the fundamental principles of criminal law such as Actus Reus and mens rea, the source of criminal law in general, and procedures involved in a criminal trial as distinct from civil proceedings. The chapter explores the four main reasons for criminalising conduct, the burden of proof in criminal proceedings and the classification of crimes and courts. It discusses four theories concerning criminal punishment, reviews several recent cases, and evaluates the criminal justice system in Great Britain based on statistics and public perception.
2. Actus reus: acts, omissions and causation
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

A crime consists of conduct (actus reus or AR) and a mental element (mens rea or MR). This chapter focuses on actus reus (AR), the external elements of a criminal offence. It discusses the key components of AR. These key components are omissions or the liability for failing to act and causation, which represents the connection between the conduct and the result of an act. The chapter explains that AR must be proved, must be voluntary and can also include a mental element. It also considers several examples of cases relevant to AR and analyses the bases of the court decisions.
3. Mens rea: intention, recklessness, negligence and gross negligence
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter focuses on Mens Rea (MR), the mental element of a criminal offence, and discusses some of the components of MR, which include intention, recklessness, negligence and gross negligence. It explains that intention can either be direct or oblique and that recklessness may be defined as the conscious taking of an unjustified risk. It also explains how to distinguish between negligence and gross negligence: negligence is unreasonable conduct that creates risk while gross negligence is a high degree of negligence deserving criminal punishment. The chapter also considers several examples of cases relevant to MR and analyses the court decisions in each of them.
6. Homicide 1: murder
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter, which examines homicide law in Great Britain, focusing on murder, explains that the term homicide includes the offences of murder and manslaughter and can also be used to refer to other forms of statutory offences of killing. It clarifies that murder refers to intentional killings while manslaughter concerns unintentional killings, and discusses actus reus and mens rea elements of murder. The chapter discusses the sentence for murder under the Criminal Justice Act 2003 and comments on the justification for mandatory life sentence. It also reviews the most recent proposals for reform of murder and the mandatory sentence, and analyses court decisions in relevant cases.
12. Property offences 1
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines property offences in Great Britain, focusing on theft, robbery, and handling. It explains that these three are in the top ten list of the most frequently occurring property offences in Britain. The chapter outlines the general principles of these offences and discusses their actus reus and mens rea elements. It looks at the key provisions of the Theft Act 1968 including the s1 definition of theft in the Act and analyses the bases of court decisions in several examples of relevant cases. It discusses recent changes to the definition of dishonesty and how juries are asked to assess dishonesty after the recent civil case of Ivey v Genting Casinos (UK) Limited (Crockfords).
13. Property offences 2
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines property offences in Great Britain, focusing on fraud and making off without payment. It explains the key provisions of the Fraud Act 2006 for different types of fraud, which include fraud by false representation, fraud by failing to disclose information, fraud by abuse of position, and obtaining services dishonestly. It clarifies the distinction between fraud and the previous offences of deception. In particular, the fact that there is no longer a requirement for causation is discussed. The chapter discusses the actus reus and mens rea elements of the offences of fraud, and provides several examples of relevant cases, and analyses court decisions in each of them, including changes to judicial directions on dishonesty.
2. Parliamentary Sovereignty
Authors: Loveland Ian
Published: August 2018

This chapter examines the ways in which parliamentary sovereignty has been both criticised and vindicated in more recent times, first discussing A V Dicey’s theory of parliamentary sovereignty, which has two parts—a positive limb and negative limb. The principle articulated in the positive limb of the theory is that Parliament can make or unmake any law whatsoever. The proposition advanced in the negative limb is that the legality of an Act of Parliament cannot be challenged in a court. The negative and positive limbs of Dicey’s theory offer a simple principle upon which to base an analysis of the constitution. The chapter then discusses the legal authority for the principle of parliamentary sovereignty and reviews challenges to Dicey’s theory.
4. The Royal Prerogative
Authors: Loveland Ian
Published: August 2018

This chapter considers the fate of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and its erosion; Council of Civil Service Unions v Minister for the Civil Service (GCHG) as the pivotal case in the development of judicial review of the prerogative; post-GCHG developments; and the notion of justiciability. The chapter concludes that the courts supervise the government’s use of prerogative powers more closely now than in the pre-revolutionary era. There has been an increase in the theoretical reach of the courts’ power of review since the 1967 decision in Lain. Administrative law also seems to treat prerogative and statutory powers in the same way.
5. The House of Commons
Authors: Loveland Ian
Published: August 2018

This chapter examines the relationship between the government and the legislature, in order to develop arguments concerning the doctrines of parliamentary sovereignty and the separation of powers within the contemporary constitution. It 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. The house is manifestly now a factional rather than national assembly for most purposes. But 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.
8. Parliamentary Privilege
Authors: Loveland Ian
Published: August 2018

This chapter, which examines the privileges of Parliament, begins by discussing Article 9 of the Bill of Rights. It then explores over three hundred years of the history of parliamentary privilege in five general areas: (i) the houses’ power to regulate their own composition through the admission, retention, and expulsion of their members; (ii) the publication of details of house business; (iii) the admissibility before the courts of such published material; (iv) the concept of ‘contempt of the house’; and (v) the regulation of MPs’ ethical standards.
12. The Governance of Scotland and Wales
Authors: Loveland Ian
Published: August 2018

This chapter examines how the constitution has addressed the question of the geographical separation of government power in the United Kingdom of England, Scotland, and Wales, and discusses the Scotland Act 1998 and the Government of Wales Acts of 1998 and 2006. It argues that although the Scotland Act 1998 and Government of Wales Act 2006 fall short of creating a ‘federal’ UK constitution similar to how the notion is understood in the United States, the constitutional significance of the devolution legislation should not be underestimated. The chapter also discusses the conduct and outcome of the 2014 independence referendum in Scotland. Consideration is given to the leading Supreme Court judgments on the nature and extent of the Scots Parliament’s legislative powers, and to the contents and implications of the Scotland Act 2016.
17. Human Rights I: Traditional Perspectives
Authors: Loveland Ian
Published: August 2018

The organising principle in respect of civil liberties in Britain is that individuals may engage in any activity not prohibited by statute or common law. In addition, neither other individuals nor government officials may interfere with an individual’s legal entitlements unless they can identify a statutory or common law justification for so doing. This chapter discusses the traditional approach taken by Parliament and the courts to the regulation of public protest, the protection of personal privacy, and to certain aspects of freedom of expression
18. Human Rights II: Emergent Principles
Authors: Loveland Ian
Published: August 2018

This chapter presents an overview of the European Convention on Human Rights, an International treaty originating in the reconstruction of Europe’s political order following World War II. The chapter is organised as follows. Section I discusses the main procedural and substantive features of the Convention itself, whilst Section II assesses its status and use in English law up until (approximately) the early-1990s. Sections III and IV examine the leading judgments of the European Court on Human Rights in the areas of privacy and freedom of expression.
21. Human Rights V: The Impact of the Human Rights Act 1998
Authors: Loveland Ian
Published: August 2018

This chapter analyses some leading cases wherein the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.
3. Trusts created expressly
Authors: Watt Gary
Published: August 2018

A person can make a conditional gift or make a gift subject to a charge. One example of an expressly created trust is a transfer of property to one person on trust for another. That property owners can dispose of their property as they choose can be a source of great uncertainty. ‘Three certainties’ must be satisfied before a court will acknowledge that a settlor or testator has created a private express trust: certainty of intention to create a trust, certainty as to the subject (property) of the trust, and certainty as to the object (beneficiaries or purposes) of the trust. This chapter, which deals with expressly created trusts, first considers the capacity to create a trust before turning to trusts established for private purposes, donations to unincorporated associations, and the construction of dispositions.
10. The fiduciary duty
Authors: Watt Gary
Published: August 2018

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.
14. Tracing and recovering trust property
Authors: Watt Gary
Published: August 2018

There are situations where trust property passes into the hands of a third party ‘stranger’—a person other than a trustee or beneficiary of the trust. Personal and proprietary remedies against strangers are particularly valuable where the claimant cannot be satisfied with actions against the original trustee. The claimant has to make choices not only in relation to the final remedy, but also when required to ‘elect’ between evidential alternatives. The tracing process, which supplies the evidence that a stranger has received trust property, may require the claimant to make such a choice. This chapter deals with tracing and ‘remedies’, focusing on how a claimant, typically a beneficiary of the trust, is able to trace trust property into the hands of a stranger and recover it by means of a proprietary remedy.
4. The requirements of an express trust
Authors: Virgo Graham
Published: August 2018

This chapter examines some of the requirements for the creation of an express trust. These include certainty of intention to create a trust, certainty of identifiable subject matter, certainty of objects, the beneficiary principle, and the perpetuity rule. This chapter explains that the creator of the trust, whether an inter vivos or testamentary trust, is given a great deal of flexibility as to the terms and operation of the trust. The chapter examines when a trust may be invalid, particularly for failure to comply with the certainty requirements, why the certainty requirements have been recognized, and how the operation of these requirements may be satisfied through careful construction of the trust instrument.
6. Charitable trusts
Authors: Virgo Graham
Published: August 2018

This chapter examines charitable trusts in England. It discusses the advantages and disadvantages of being a charitable trust and explains the conditions that must be met in order for a trust to be considered charitable. The chapter considers the different meaning of a charitable purpose as it has been defined in cases and by statute, such as for the advancement of education or religion and the relief of poverty. It examines the meaning of the public benefit requirement and also considers the requirements that purposes must be exclusively charitable. This chapter also considers the cy-près doctrine which applies where a charitable purpose has failed initially or subsequently.
8. Resulting trusts
Authors: Virgo Graham
Published: August 2018

This chapter examines the nature of the resulting trust. It explains that a trust is called resulting when the beneficial interest in the property returns to the person who transferred the property in the first place. It discusses the theoretical foundation of the resulting trust and its categories, which include presumed and automatic resulting trusts. This chapter examines the consequences of a total or partial failure of express trust and the Quistclose trust which arises where property is transferred for a purpose which has failed, and suggests that there is no need to expand the resulting trust to encompass claims in unjust enrichment and following the rescission of a contract.
9. Constructive trusts
Authors: Virgo Graham
Published: August 2018

This chapter examines the nature of the constructive trust. It explains that a trust is considered constructive when it arises by operation of law, typically as a result of the defendant’s unconscionable conduct. The chapter discusses the theoretical foundations of constructive trusts and describes different interpretations of the constructive trust, which include institutional and remedial constructive trusts. This chapter also considers the conditions under which institutional constructive trusts will be recognized and explains that, though a constructive trust is a real trust, it does not follow that a constructive trustee is under the same obligations as any other type of trustee. The chapter also examines whether the remedial constructive trust should be recognized in English law or whether a different interpretation of the trust should be recognized involving a modified institutional constructive trust.
10. Informal arrangements relating to property
Authors: Virgo Graham
Published: August 2018

This chapter considers the situations where the parties have entered into informal arrangements relating to property. It examines three different scenarios where the trust may be applicable. The first concerns the so-called common intention constructive trust, which is especially significant where the relationship of a cohabiting couple breaks down. This raises difficult issues of property ownership where the couple’s home is registered in the name of one party or of both. The rights of the parties may be modified by virtue of their common intention, whether implied or imputed. Secondly, the chapter considers the so-called joint venture constructive trust and also the relevance of the constructive trust where the doctrine of proprietary estoppel is engaged.
14. Dispositive powers and duties
Authors: Virgo Graham
Published: August 2018

This chapter examines the powers and duties of trustees relating to the distribution of trust property to beneficiaries or objects. It explains that dispositive powers enable the trustees to exercise a discretion relating to the distribution of trust assets and dispositive duties requires them to act in a particular way or to make a particular decision. This chapter also discusses the underlying principles of the duty to distribute and the powers of appointment, maintenance, and advancement. The chapter further considers a variety of principles which are applicable to determine how powers of appointment should be exercised, what happens when the power is not exercised properly, and mechanisms to assist trustees in the exercise of these powers.
15. Fiduciary duties
Authors: Virgo Graham
Published: August 2018

This chapter examines the nature of fiduciary duties and how a fiduciary relationship can be identified. It emphasizes that trustees are fiduciaries, and so are subject to fiduciary duties, but also considers other fiduciary relationships. The chapter analyses the nature and function of fiduciary obligations. It examines in detail the two core fiduciary duties of ensuring that there is no conflict between a fiduciary’s personal interest and their duty to the principal and also that a fiduciary should not profit from his or her fiduciary position. The chapter discusses the consequences of a breach of fiduciary duty and the available remedies for such a breach. In particular, the chapter considers when and why profits obtained by a fiduciary in breach of a fiduciary duty should be held on constructive trust for the principal, with particular reference to the receipt of bribes and secret commissions.
17. Liability for Breach of Trust and Fiduciary Duty
Authors: Virgo Graham
Published: August 2018

This chapter examines the nature of the liabilities of trustees for a breach of trust and fiduciary duty. The chapter particularly focuses on the operation of particular doctrines which may be engaged when a trustee or fiduciary may have breached their duty. The extent to which the liability of a trustee or fiduciary can be excluded is considered. The extent to which the court may, in the exercise of judicial discretion, determine that it is not appropriate to hold a trustee liable is also examined. The law on the limitation of liability is also examined as regards different claims relating to breach of trust and breach of fiduciary duty. This chapter also explores issues concerning liabilities between trustees, liability of trustees to creditors, and their liabilities for breach of trust before appointment and after retirement.
18. Personal Liability for Breach of Trust and Fiduciary Duty
Authors: Virgo Graham
Published: August 2018

This chapter examines the personal liability of a trustee or fiduciary in cases of a breach of trust or fiduciary duty. It analyses the personal remedies that may be available where the defendant has breached the trust or breached fiduciary duties and discusses the advantages and disadvantages in claiming personal or proprietary remedies. The chapter focuses on the nature and function of personal remedies to reconstitute the trust following breach of trust, by means of falsification of the account. It also considers the remedies of surcharging the account, account of profits and equitable compensation. The role of the equitable allowance is also considered.
21. Equitable Orders
Authors: Virgo Graham
Published: August 2018

This chapter examines various other equitable remedies to illustrate the significant impacts of Equity on the remedial landscape of English law, particularly in a commercial context. It discusses the key principles that influence the equitable jurisdiction to make orders. These remedies include various types of injunction, including freezing orders, search orders, specific performance, rescission, and rectification. In each case the nature and function of the order is examined and the requirements for obtaining each order is identified. The chapter particularly focuses on the remedy of rescission to determine when the remedy should be available and how it operates. The chapter identifies various principles relating to the award of equitable orders and makes connections to other fundamental equitable principles which have been recognized throughout the book.
Administrative Law
Authors: Endicott Timothy
Published: August 2018

Administrative Law explains the constitutional principles of the subject. It brings clarity to this complex field of public law. The common law courts, government agencies, and Parliament have developed a wide variety of techniques for controlling the enormously diverse activities of twenty-first-century government. Underlying all that variety is a set of constitutional principles. This book uses the law of judicial review to identify and to explain these principles, and then shows how they ought to be worked out in the private law of tort and contract, in the tribunals system, and in non-judicial techniques such as investigations by ombudsmen, auditors, and other government agencies. The aim is to equip the reader to take a principled approach to the controversial problems of administrative law.
4. Due process
Authors: Endicott Timothy
Published: August 2018

This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process, and of the potential dangers involved in administrative processes.
5. Impartiality and independence
Authors: Endicott Timothy
Published: August 2018

This chapter examines impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful), and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process, and also as a flaw in the substance of a decision maker’s reasoning.
6. Reasons: process and substance
Authors: Endicott Timothy
Published: August 2018

This chapter illustrates the principle of relativity by explaining why public authorities may or may not be required to give reasons for their decisions, depending on the type of decision and its context. The reasons why public authorities should sometimes explain their reasons for a decision reflect the three process values explained in Chapter 4: requiring reasons may improve decisions, it may be unfair (to a person affected by the decision) for the decision to be unexplained, and reasons may support judicial review, and may improve transparency and accountability in government in other ways. The discussions cover the deprivation principle, the duty of respect, trigger factors for reasons, the Padfield practicality principle, the content of reasons, how to remedy inadequate reasons, process danger, and the difference between process and substance, and why it matters.
10. How to sue the government: judicial processes and judicial remedies
Authors: Endicott Timothy
Published: August 2018

This chapter addresses the extraordinary process of judicial review and the remedies available to the court. The process and remedies are compared to the process and remedies in ordinary claims (which can also be used to control administrative action). In their self-regulation in developing these complex processes, the challenge for judges is to keep things in proportion: the attempt to achieve due process in judicial control of administrative action is essential to the administration of justice. The chapter explains the irony of process, which was introduced in Chapter 4: the courts may need to provide forms of process that are excessive and wasteful in some cases, in order to protect the administration of justice.
11. Standing: litigation and the public interest
Authors: Endicott Timothy
Published: August 2018

This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not assert a right to a remedy, but must have a ‘sufficient interest’ in the matter. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing before the European Court of Justice, standing for public authorities, and standing to intervene.
13. Ombudsmen
Authors: Endicott Timothy
Published: August 2018

This chapter examines ombudsmen and other forms of investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, the effects of ombudsmen’s reports, judicial review of ombudsmen, the European Ombudsman, the Equality and Human Rights Commission, and the Inquiries Act 2005. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes.
15. Contracts
Authors: Endicott Timothy
Published: August 2018

Contracts are used to structure the legal relationship between government and private service providers. Besides this, contract also forms a new model both for relationships between public agencies, and for the relationship between the government and the people it serves. The challenge for the government is to deliver services with integrity, with equity, and with efficiency. The challenge for administrative law is to provide forms of accountability that do what the law can do to promote those goals. This chapter discusses government by contract and proportionate administration, accountability and efficiency, capacity to contract, and how the law controls government contracts.
1. Introduction
Authors: Smith Rhona K. M.
Published: August 2018

This introductory chapter introduces the theme of this book, which is modern international human rights law. The book traces the unprecedented expansion in the internationally recognized rights of all people with acceptance of a human rights dimension to the quest for international peace and security following the formation of the United Nations in 1945. It examines the International Bill of Rights and the regional protection of human rights, and describes several human rights organizations including the Organization of American States and the African Union. The book discusses different types of rights, including the right to life, the right of liberty to persons, and the right to work, and also evaluates the monitoring, implementation, and enforcement of human rights laws.
10. Monitoring, implementing, and enforcing human rights
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the monitoring, implementation, and enforcement mechanisms of the United Nations, and discusses the reports system, the inter-State complaints system, and the individual complaints system. It describes the use of rapporteurs and special investigators; ancillary bodies; and some of the problems of the international human rights system.
15. The right to liberty of person
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines international human rights laws on the right to liberty. It first considers slavery, the most serious threat to an individual’s right to liberty, and then discusses the application of the general rights of liberty and security of person, and the detention of individuals.
23. Current issues
Authors: Smith Rhona K. M.
Published: August 2018

This chapter outlines the future agenda for international human rights and provides an overview of some issues that are likely to characterize the evolution of international human rights in the future. These include non-State actors, including businesses. Environmental rights are also considered. The chapter also suggests that State responses to the threat of terrorism must be proportionate to said threat and must be in accordance with the law, respecting fundamental rights and freedoms.
3. Negligence:
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Trespass, one of the oldest torts, takes three forms that are all actionable per se: trespass to the person, trespass to land, and trespass to goods. In each case, a claimant is not required to prove damage to bring an action in trespass. Many modern cases of trespass to the person are taken against the police or other public officials, mainly to vindicate the claimant’s rights rather than to obtain an award of damages in compensation. This chapter focuses on trespass to the person and trespass to land, the former of which involves an intentional infliction of harm without a direct interference.
6. Negligence: duty of care problem areas
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. In addition to duty of care and breach of that duty, the third essential element to bring a successful action in negligence is causation of damage. In other words, the claimant must prove on the balance of probabilities that the breach caused his damage. The defendant cannot be made liable for the harm suffered by the claimant if he is not responsible, or partly responsible, for such harm — even if he has been negligent. The question of causation can be divided into two issues: causation in fact and causation in law (also known as remoteness). The primary means of establishing factual causation is the ‘but for’ test. Reasonable foreseeability of damage of the relevant type (Wagon Mound) is required to establish that the claimant’s injury is not too remote. The chain of causation may be broken by unreasonable or unforeseeable acts or events (novus actus interveniens).
7. General defences
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.
8. Negligence: occupiers’ liability
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The claimant has the burden of establishing liability for the tort while the defendant has the burden of establishing the defence. If the claimant establishes a successful cause of action in tort, the defendant must plead one (or more) of the defences available to him. If the defendant establishes a successful defence, either his liability for the damage may be reduced or he may be totally absolved from liability. This chapter examines general defences applicable to all torts but which have particular relevance to claims in negligence, focusing on contributory negligence, volenti non fit injuria, and ex turpi causa non oritur actio.
9. Employers’ liability and non-delegable duties
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.
11. Product liability
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, liability is based on the personal fault of the wrongdoer himself. A person is liable only for his own acts, and a defendant will usually be free of any liability unless he has negligently or intentionally caused the harm or damage to the claimant. However, a person who has no fault or personal blame may also be held liable for the damage caused by the tort of another. This is known as vicarious liability, which is most common in the workplace and imposes liability without the need to prove that the defendant is at fault.
14. Elements of defamation
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Rylands v Fletcher was an 1868 case that gave birth to a rule imposing strict liability for damage caused by the escape of dangerous things from land. The tort in Rylands v Fletcher differs from nuisance because it does not consider the involvement of the defendant in a continuous activity or an ongoing state of affairs. What distinguishes Rylands v Fletcher from actions in negligence is that there is no need for the existence of a duty of care and its breach, along with the questionable place of personal injury as an actionable type of damage. This chapter examines the tort in Rylands v Fletcher and the nature of the rule that arose from it. It also considers recent case law developments concerning Rylands v Fletcher and their impact on the current state of the law. Finally, the chapter evaluates the defences pertaining to Rylands v Fletcher.
15. Defences to defamation
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Defamation differs from other aspects of tort law because it is concerned with protecting against harm caused by words. The law of defamation is intended to provide compensation for people whose reputations have been damaged by untrue statements and it also allows one to obtain an interim injunction to stop a potentially defamatory statement from being published. This chapter discusses the human rights dimension in defamation and the procedural and substantive changes to defamation law introduced by the Defamation Act 2013. It also explores how to strike a balance between the competing rights of freedom of expression and protection of reputation.
1. What’s it all about?
Authors: Wacks Raymond
Published: August 2018

This introductory chapter sets out the book’s scope and primary goals, and outlines some useful works on jurisprudence recommended by instructors in American law schools. It distinguishes between descriptive legal theory, normative legal theory, and critical legal theory, and describes Lon Fuller’s entertaining hypothetical ‘Case of the Speluncean Explorers’, a popular launching pad for the comprehension of legal ideas. The chapter concludes with an explanation of the point of legal theory, suggesting that analytical clarity is paramount in times of turmoil when the voice of the demagogue is loudest. Careful consideration of the most fundamental questions of law, justice, and the meaning of legal concepts is particularly important. Legal theory has a central function in defining, shaping, and safeguarding the values that underpin our society.