11. Giving Reasons for Decisions

2016 ◽  
Author(s):  
Mark Elliott ◽  
Jason Varuhas
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Procedural Fairness ◽  
Administrative Law ◽  
European Convention ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Reasons For Decisions

This chapter examines the content and scope of the duty to give reasons, suggesting that giving reasons for decisions should be treated as a central facet of procedural fairness in administrative law. It first differentiates the duty to give reasons from the duty to give notice, the possibility of inferring unreasonableness from an absence of reasons, the proportionality doctrine, and the duty of candour. It then considers why reasons are required and goes on to discuss the duty to give reasons at common law. It also describes statutory duties and other duties to give reasons, paying attention to the provisions of the Freedom of Information Act 2000 and Article 6 of the European Convention on Human Rights. Finally, it analyzes the question of whether a duty to give reasons has been discharged, and provides an overview of the remedial consequences of a breach of the duty to give reasons.

9. Freedom of Expression

2016 ◽  
Author(s):  
Richard Clements
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Common Law ◽  
Freedom Of Speech ◽  
European Convention ◽  
Free Expression ◽  
Freedom Of Information ◽  
Obscenity Law ◽  
Right Of Privacy ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; breach of confidence and whether there is a right of privacy in English law.

Secrecy

2016 ◽  
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
National Interest ◽  
European Convention ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
House Of Lords ◽  
The Right ◽  
Right Of Access

This chapter concerns the statutory prohibitions on unauthorized disclosures of information contained in the Official Secrets Act 1989, and their interrelationship with the provisions of the Freedom of Information Act 2000. It identifies the categories of information protected by, and the persons subject to, the 1989 Act. The elements of the various offences created by that Act are discussed, in particular the requirements for disclosures to be made without lawful authority and to be damaging to a specified national interest. The chapter examines the question of compatibility between the 1989 Act and the right to freedom of expression under Article 10 of the European Convention on Human Rights, focusing on the House of Lords’ decision in the case of David Shayler. It concludes by considering which of the exemptions from the right of access under the 2000 Act may apply to information within the scope of the 1989 Act.

THE LIMITS OF FREEDOM OF INFORMATION AND HUMAN RIGHTS, AND THE POSSIBILITIES OF THE COMMON LAW

2014 ◽  
Vol 73 (3) ◽  
pp. 471-474
Author(s):  
Kirsty Hughes
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
Veto Power ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Public Authorities ◽  
The Supreme Court ◽  
Charity Commission ◽  
The Common

ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

9. Freedom of expression

2018 ◽  
Author(s):  
Richard Clements
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Common Law ◽  
Freedom Of Speech ◽  
European Convention ◽  
Free Expression ◽  
Freedom Of Information ◽  
Obscenity Law ◽  
Right Of Privacy ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; breach of confidence and whether there is a right of privacy in English law.

9. Freedom of expression

2020 ◽  
pp. 161-182
Author(s):  
Richard Clements
Keyword(s):  
Human Rights ◽  
Data Protection ◽  
Freedom Of Expression ◽  
Common Law ◽  
Freedom Of Speech ◽  
European Convention ◽  
Freedom Of Information ◽  
Obscenity Law ◽  
Right Of Privacy ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; data protection; breach of confidence; and whether there is a right of privacy in English law.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

The Common Core of European Administrative Laws and the Pan-European General Principles of Good Administration

2021 ◽  
pp. 21-34
Author(s):  
Ulrich Stelkens
Keyword(s):  
Human Rights ◽  
Public Administration ◽  
Common Core ◽  
Methodological Approach ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
Institute Of Public Administration ◽  
German Research ◽  
The Common

This chapter examines a research project carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. This 'Speyer project' studies the development, content, and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE), i.e. on the basis of its Statute (SCoE) and the European Convention on Human Rights (ECHR), which is a sort of 'second pillar' of the CoE. These CoE standards are called 'pan-European principles of good administration'. This 'Speyer project' can be understood as a counterpart to the project carried out by Giacinto della Cananea and Mauro Bussani on the Common Core of European Administrative Law (CoCEAL) as it has a similar objective: to ascertain whether, despite many differences between European systems of administrative law, there are some connecting elements, or a 'common core', and, if so, whether such 'connecting elements' can be formulated in legal terms rather than as generic idealities. However, the methodological approach of the 'Speyer project' clearly differs from the 'factual approach' adopted in CoCEAL.

The Impact of the Pan-European General Principles of Good Administration on Swiss Law

2020 ◽  
pp. 353-374
Author(s):  
Nadja Braun Binder ◽  
Ardita Driza Maurer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Swiss Law ◽  
Written Law ◽  
The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

15. The European Convention on Human Rights and the Human Rights Act 1998

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Liberties ◽  
European Convention ◽  
Bill Of Rights ◽  
Rights Protection ◽  
Positive Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts' historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

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