Despite increasingly sophisticated antidiscrimination laws, dis- crimination and inequality have proved remarkably resilient. This prompts questions about the limits of law’s ability to achieve social change. One way forward is to fashion new legal tools, which impose duties to promote or achieve equality, rather than focusing on individual rights against specific perpetrators. In the past decade in Britain, such fourth generation equality laws have been developed in a distinctive format, requiring the decision-maker to “have due regard” to equality, rather than taking action to achieve such objectives. Thisstandard has triggered a spate of judicial review cases, particularly in response to austerity measures imposing deep budgetary cuts on disadvantaged groups. This Paper’s aims are two-fold. The first is to examine the judicial approach to the due regard standard in the light of recent regulatory theory. Do courts consider the due regard standard as a signal for deference, or can it be understood as an example of “reflexive law,” facilitating deliberative decision-making rather than imposing external standards likely to meet with resistance from the regulated body? The Paper concludes that courts have struggled to deal with the regulatory challenges presented by the “due regard” standard, wavering between appropriate and inappropriate intervention. The second aim is an analysis of whether a deliberative standard is appropriate in the equality context. The record of judicial review cases demonstrates that such a standard risks legitimating or simply reconfiguring existing inequalities.

ISBN: 0002-919x

DOI: 10.1093/icon/mor028

This article is a response to the contributions of Nick Barber and Trevor Allan found in this volume. It argues that an analysis of “sovereignty” does serve a useful purpose in U.K. constitutional law. More specifically, it argues that discussions of “sovereignty” should also include an analysis of constitutive rules, particularly aiming to understand which institutions are “sovereign” in the sense of having the power to define and modify these constitutive rules. When analysed in this manner, an argument can be made that Dicey's traditional theory that Parliament cannot bind its successors is still a valid rule of the English legal system. In addition, this rule is desirable. Its presence is necessary, although not sufficient, to ensure that both Parliament and the courts have a rule in defining and modifying constitutive rules. This dual role is desirable as it helps to maintain the legitimacy of the U.K.’s “political” constitution.

DOI: 10.1093/ojls/gqq028

This review article discusses the relationship between deference and the presumption of constitutionality, as discussed in Brian Foley’s book, Deference and the Presumption of Constitutionality. Foley argues for the rejection of the presumption of constitutionality as it operates in the Irish Constitution, proposing instead a ‘due deference’ approach. This approach would require courts to give varying degrees of weight to the legislature’s conclusions that particular legislative provisions are constitutional. The article praises Foley’s book, particularly its stronger justification of due deference which focuses on its ability to foster a culture of justification which, in turn, facilitates popular sovereignty. The review also provides a criticism of the argument made in the book and discusses its application to the UK constitution. First, the review argues that the focus on constitutional as opposed to institutional factors to determine deference may, in practice, undermine Foley’s justification of due deference. Second it argues that Foley’s justification of deference may be best served in the UK constitution by a theory of democratic dialogue as opposed to the application of due deference.

The doctrine of deference permeates human rights review. It plays a role in de¢ning Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justi¢ed for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and ismodest enough to play a role in a range of di¡erent justi¢cations and understandings of judicial review under theHuman Rights Act.The article then provides amore detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to performits constitutional function of protecting individual rights.

Article analysing recent reforms in the primary care sector in the NHS from a public law perspective.

ISBN: 0961-5768

After brief discussion of (1) the nature of constitutional principles and (2) the development and developed state of the law about the rights of aliens, the article argues extensively that A v Home Secretary [2004] UKHL 56, [2005] 2 AC 68 was wrongly decided and, indeed, per incuriam since all nine judges in the Lords overlooked their duty to interpet the statutory provision so far as possible as compatible with the Human Rights Act 1998 before declaring it incompatible.Even apart from that duty under HRA s. 3, there was available but unconsidered a reasonable interpretation such that the power to detain alien terrorist suspects had as its ongoing precondition a purpose, manifested in bona fide efforts, to deport them and to secure whatever arrangements with foreign governments might be necessary to make deportation lawful under the Chahal doctrine about real risk of torture or degrading treatment.The judgments all overlook also the constitutional principle that risk to the public good which must be accepted from the presence of a national need not be accepted from the presence of an alien and may be obviated by the alien's exclusion or expulsion.The majority's arguments from irrationality and discrimination are manifestly unsound once the statute is interpreted as it should have been.

Discussion of some of the problems with the English law of government contracts, for a French audience.

ISBN: 0763-1219

Questions whether the government's proposals to create NHS Foundation Trusts will succeed in their aim of giving hospitals greater autonomy from Department of Health control.

ISBN: 0033-3565

Article discussing the closing stages of a series of judgments given by the Court of Final Appeal in Hong Kong concerning the interpretation of Article 24 of the Basic Law on the right of residence in Hong Kong. The piece argues that the Hong Kong executive, Legal Aid Board and Court system all found the technique of informal communication useful in managing claims for residence, but that the usefulness of this technique on future occasions is dependent on full protection being given to the expectations it creates so that trust in the administration can be maintained. The article also discusses some of the general background theory and doctrine concerning legitimate expectations in administrative law more generally and argues that although the courts are often concerned with the numbers of people claiming legitimate expectations, in fact there may be more subtle issues to consider such as whether the class of persons is finite and identifiable.

ISBN: 1019-2557

Delegating Rights Protection explores bill-of-rights outcomes in four "Westminster" countries - Australia, Canada, New Zealand, and the United Kingdom - whose development exhibit an interesting combination of both commonality and difference. Comparative analysis of some thirty-six democracies demonstrates that the historic absence of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, their strong British constitutional heritage. Detailed chapters then explore recent and much more diversified developments. In all the countries, postmaterialist socio-economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (1960), New Zealand Bill of Rights Act (1990), and the Human Rights Act (UK) (1998) were prompted politically by a relatively weak and backward-looking 'aversive' reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self-interested and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).

This book analyses the law relating to government contracts from a public law perspective.

ISBN: 978-0-19-928739-0

The chapter explains and evaluates the different ways in which courts are bound to follow decisions of the ECtHR. It evaluates the role of section 2(1) HRA 1998, as well as analysing the extent to which courts should follow decisions of the ECtHR as opposed to a binding precedent from a concurrent or higher court.

ISBN: 9781107009325

Discussion of some of the ultra vires problems surrounding government contracts.

ISBN: 1-84113-635-2

Title in Halsbury's Laws of England, vol. 6 reissue.

ISBN: 406961662

The meaning of the term ‘people’ in the German Constitution and the position of the German Constitutional Court

ISBN: 3-7890-6262-6

Book review of Johan Steyn, Democracy through Law.

ISBN: 0033-3565