Constitutional and Administrative Law

Many government bodies relate to each other through contracts: government departments and agencies; government departments and the Treasury; National Health Service (NHS) purchasers and NHS Trusts. These ‘internal contracts’ are not, in general, regulated or enforced by the law. This book explores the practical problems encountered by the parties to internal contracts, drawing on evidence from an empirical case study of NHS contracts. It uncovers difficulties in defining the parties' roles; in maintaining good working relationships; and in securing compliance with contractual terms. It then examines the possibility of solving these problems through law. Some commentators, particularly public lawyers, have condemned the law's failure to keep pace with the rise of ‘government by contract’, but few have made specific proposals for reform. The book develops an original public law analysis of internal contracts, interpreting them as mechanisms of accountability from service providers to purchasers. It proposes norms which would help the parties to use their contracts as fair and effective mechanisms of accountability. It also suggests reforms to the institutional framework for internal contracts.

This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.

This book provides a way to understand church–state conflict and the relationship between religion and liberal democracy in a contemporary era. It is argued that the fundamental reason for the church–state conflict is our aversion to questions of religious truth. By trying to avoid the question of religious truth, law and religion have ultimately reached a state of incoherence. It asserts that the answer to this dilemma is to take “the agnostic turn”—that is, to take an empathetic and imaginative approach to questions of religious truth, one that actually confronts rather than avoids these questions, but without reaching a final judgment about what that truth is.

This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, this book has chosen to do so by looking at the Indian Supreme Court judgments. This is not intended to be a comprehensive account of the Supreme Court's understanding of religion and secularism, but a discussion of judicial interventions in areas which are important to the life of the Indian nation and Indian secularism. Several public events have shaped the argument of this book, even though it might not be apparent from the text itself: the riots following the assassination of Indira Gandhi; the terrorist bombing of the World Trade Center in New York City on September 11, 2001; and the Mumbai terror attacks. One reaction to these acts of terrible violence, where religion or religious extremism could be seen to be central, might have been to argue for banishing religion from the public sphere. This book traverses an opposite path because it believes that religion and religiosity were not at the heart of these violent events. It argues that religious pluralism and religious tolerance are critical for the survival of the Indian nation, and it seeks to bring this view back to centre stage in the context of the courts in particular and public policy in general.

This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals’ autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going ‘beyond constitutionalism’ towards a pluralist order may be the better option.

This book analyzes the British Government's radical change in policy during the late 1950s on the use of bills of rights in colonial territories nearing independence. More broadly it explores the political dimensions of securing the protection of human rights at independence and the peaceful transfer of power through constitutional means. This book fills a major gap in the literature on British and Commonwealth law, history, and politics by documenting how bills of rights became commonplace in Britain' s former overseas territories. It provides a detailed empirical account of the origins of the bills of rights in Britain's former colonial territories in Africa, the West Indies, and South East Asia as well as in the Atlantic and Pacific Oceans. It sheds light on the development of legal systems at the point of gaining independence and raises questions about the colonial influence on the British legal establishment's change in attitude towards bills of rights in the late 20th century. It presents an alternative perspective on the end of Empire by focusing upon one aspect of constitutional decolonization and the importance of the local legal culture in determining each dependency's constitutional settlement and provides a series of empirical case studies on the incorporation of human rights instruments into domestic constitutions when negotiated between a state and its dependencies. More generally, this book highlights Britain's human rights legacy to its former Empire, and traces the genesis of the bills of rights of over thirty nations from the Commonwealth.

There is no recognized corpus of binding law globally applicable to all churches in the Anglican Communion. Ostensibly, each church is autonomous, free to make rules to facilitate and to order its internal life. This book, which is global in scope, makes available a comparative study of the constitutions, canons, and other forms of law of churches in the worldwide Anglican Communion. The book's analysis draws out the similarities and differences between them and, from the coincidence of actual laws and from global ecclesiastical conventions enunciated by the Lambeth Conference, it elucidates the global principles of Anglican canon law that may apply to all churches in the Communion. The subjects examined include: government; ministry; doctrine and liturgy; rites; property; inter-church relations; and ecumenism. Thorough and practical analysis of a hitherto under-explored subject is placed squarely within its jurisprudential and theological context.

The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.