Selected Public Law Terms

Breach of confidence - 1. The disclosure of confidential information without permission. With the enactment of the Human Rights Act 1998 which gives effect to the provision of the European Convention on Human Rights (art 8) that "Everyone has the right to respect for his private and family life, his home and his correspondence", the courts have extended the tort of breach of confidence to protect certain aspects of personal privacy (Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, AC 457). A pre-existing confidential relationship is no longer required: a duty of confidence is imposed whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.
2. Failure to observe an injunction granted by the court to prevent this. The injunction is most commonly granted to protect commercial information or trade secrets, but may also be granted, for example, to protect the secrecy of communications made between husband and wife during marriage or, possibly, between cohabitants during their period of cohabitation. The laws protecting confidential information exist at common law and will only restrain the dissemination of truly confidential information. Information that has been disclosed anywhere in the world, unless it was disclosed under conditions (usually a contract) of confidence, cannot subsequently be prevented from disclosure by the courts, as such a prohibition would be pointless.

Breach of statutory duty - Breach of a duty imposed on some person or body by a statute. The person or body in breach of the statutory duty is liable to any criminal penalty imposed by the statute, but may also be liable to pay damages to the person injured by the breach if he belongs to the class for whose protection the statute was passed. Not all statutory duties give rise to civil actions for breach. If the statute does not deal with the matter expressly, the courts must decide whether or not Parliament intended to confer civil remedies. Many actions for breach of statutory duty arise out of statutes dealing with safety at work (X v Bedfordshire CC [1995] 2 AC 633 (HL)).

Breach of the peace - The state that occurs when harm is done or likely to be done to a person or (in his presence) to his property, or when a person is in fear of being harmed through an assault, affray, or other disturbance. At common law, anyone may lawfully arrest a person for a breach of the peace committed in his presence, or when he reasonably believes that a person is about to commit or renew such a breach. To breach the peace is a crime in Scotland; elsewhere, magistrates may bind over a person to keep the peace.

Cabinet - n. A body of ministers (normally about 20) consisting mostly of heads of chief government departments but also including some ministers with few or no departmental responsibilities; it is headed by the Prime Minister,0020in whose gift membership lies. As the principal executive body under the UK constitution, its function is to formulate government policy and to carry it into effect (particularly by the initiation of legislation). The Cabinet has no statutory foundation and exists entirely by convention, although it has been mentioned in statute from time to time, e.g. in the Ministers of the Crown Act 1937, which provided additional salaries to "Cabinet Ministers". The Cabinet is bound by the convention of collective responsibility, i.e. all members should fully support Cabinet decisions; a member who disagrees with a decision must resign. If the government loses a vote of confidence, or suffers any other major defeat in the House of Commons, the whole Cabinet must resign.

Civil Service - The body of Crown servants that are employed to put government policies into action and are paid wholly out of money voted annually by Parliament. Civil servants include the administrative and executive staff of central government departments (e.g. the Home Office and Treasury), including executive agencies (e.g. the Land Registry and the Prison Service). The Civil Service is politically impartial and permanent, thereby providing stable administration notwithstanding changes of government. The police (not being Crown servants), the armed forces (not being civil), government ministers, and those (e.g. judges) whose salaries are charged on the Consolidated Fund are not civil servants.

Constitution - n. The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. Most states have a written constitution, one of the fundamental provisions of which is that it can itself be amended only in accordance with a special procedure. The constitution of the UK is largely unwritten. It consists partly of statutes, for the amendment of which by subsequent statutes no special procedure is required, but also, to a very significant extent, of common law rules and constitutional conventions.

Contempt of court - 1. (civil contempt) Disobedience to a court order or process, such as breach of an injunction. If an injunction is served on a defendant with a penal notice attached, breach of the injunction can result in the defendant being imprisoned.
2. (criminal contempt) Conduct that obstructs or tends to obstruct the proper administration of justice. At common law criminal contempt includes the following:
• deliberately interfering with the outcome of legal proceedings, e.g. by bribing or intimidating witnesses, the jury, or a judge;
• contempt in the face of the court, e.g. using threatening language or creating a disturbance in court;
• scandalizing the court by "scurrilous abuse" of a judge going beyond reasonable criticism or attacking the integrity of the administration of justice;
• interfering with the general process of administration of justice, e.g. by disclosing the deliberations of a jury, even though no particular proceedings are pending. Under the Contempt of Court Act 1981 it is a statutory contempt to publish to the public, by any means, any communication that creates a substantial risk that the course of justice in particular legal proceedings will be seriously impeded or prejudiced, if the proceedings are active. It is also contempt under the Act to obtain or disclose any particulars of jury discussions and to bring into court or use a tape recorder without permission. Contempt of court is a criminal offence punishable by a jail sentence and/or a fine.

Delegated legislation (subordinate legislation) - Legislation made under powers conferred by an Act of Parliament (an enabling statute, often called the parent Act). The bulk of delegated legislation is governmental: it consists mainly of Orders in Council and instruments of various names (e.g. orders, regulations, rules, directions, and schemes) made by ministers (see also government circulars). Its primary use is to supplement Acts of Parliament by prescribing the detailed and technical rules required for their operation; unlike an Act, it has the advantage that it can be made (and later amended if necessary) without taking up parliamentary time. Delegated legislation is also made by a variety of bodies outside central government, examples being byelaws, the Rules of the Supreme Court, and the codes of conduct of certain professional bodies.
Most delegated legislation (byelaws are the main exception) is subject to some degree of parliamentary control, which may take any of three principal forms:
(1) a simple requirement that it be laid before Parliament after being made (thus ensuring that members become aware of its existence but affording them no special method or opportunity of questioning its substance);
(2) a provision that it be laid and, for a specified period, liable to annulment by a resolution of either House (negative resolution procedure);
(3) a provision that it be laid and either shall not take effect until approved by resolutions of both Houses or shall cease to have effect unless approved within a specified period (affirmative resolution procedure). In the case of purely financial instruments, any provision for a negative or affirmative resolution refers to the House of Commons alone.
All delegated legislation is subject to judicial control under the doctrine of ultra vires. Delegated legislation is interpreted in the light of the parent Act, so particular words are presumed to be used in the same sense as in that Act. This rule apart, it is governed by the same principles as those governing the interpretation of statutes.

Derogation - n. Lessening or restriction of the authority, strength, or power of a law, right, or obligation. Specifically:
1. (in the European Convention on Human Rights) A provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention. This procedure is provided by Article 15 of the Convention and is available in time of war or other public emergency threatening the life of the nation. Although Article 15 is not brought into domestic law by the Human Rights Act 1998, the Act exempts public authorities from compliance with any articles (or parts of articles) where a derogation is in place.
Following the terrorist attacks on the USA of 11 September 2001 and the passing of the Antiterrorism, Crime and Security Act 2001, the UK government derogated from Article 5 of the Convention. This derogation was necessary because that Act allowed the detention by the Secretary of State of certain foreign nationals on the basis that they were suspected of involvement in terrorism. That provision was declared to be in breach of the Convention by the House of Lords in December 2004 (A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68) and abandoned in March 2005.
2. (in EU law) An exemption clause that permits a member state of the EU to avoid a certain directive or regulation. Sometimes member states are allowed a longer than normal time to implement an EU directive.

Devolution - n. 1. The delegation by the central government to a regional authority of legislative or executive functions (or both) relating to domestic issues within the region. The word is most commonly used in the context of such functions in Scotland, Wales, and Northern Ireland. For example, the Scotland Act 1998 devolved power to the Scottish Parliament, enabling it to make certain Acts in some areas of policy and to alter income tax. However, the UK parliament reserved power to make laws for Scotland. The Government of Wales Act 1998 gave limited administrative powers to the Welsh Assembly with the UK parliament continuing to legislate for Wales. The Northern Ireland Act 1998 established an elected Northern Ireland Assembly with a powersharing executive and power was devolved in December 1999. However, the Northern Ireland Act 2000 enables power to revert to the UK parliament, suspending the Northern Ireland Assembly until the Secretary of State makes a restoration order. The Assembly has been in a state of suspension since October 2002.
2. The passing of property from one owner to another, which may occur on death or sale, as a gift, by operation of law, or in any other way.

Discrimination - n. Treating a person less favourably than others on grounds unrelated to merit, usually because he or she belongs to a particular group or category. As well as direct discrimination, this may involve indirect discrimination, victimization, or harassment. It is unlawful to discriminate on racial grounds, on grounds of sex, sexual orientation, religion or belief, or disability. From December 2006 age will be added to the list of prohibited grounds; until then, age discrimination is covered only by a voluntary code of practice. The law is contained in the Sex Discrimination Act 1975; the Race Relations Act 1976; the Disability Discrimination Act 1995; the Employment Equality (Religion or Belief) Regulations 2003; and the Employment Equality (Sexual Orientation) Regulations 2003. The field is heavily influenced by European law. The scope of the different pieces of legislation varies.

Freedom of association - A right set out in Article 11 of the European Convention on Human Rights and now part of UK law as a consequence of the Human Rights Act 1998. This right protects freedom of peaceful assembly, including the right to engage in peaceful protests and demonstrations and to form and join trade unions and similar bodies (Wilson v UK [2002] 1 IRLR 568 (ECHR)). It is a qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. The state has a duty to protect protesters from those who wish to prevent their assembly or attack them (Plattform Ärzte fur das Leben v Austria (1988) 13 EHRR 204).

House of Commons - The representative chamber of Parliament (also known as the Lower House), composed of 659 Members of Parliament (MPs) elected for 529 single-member constituencies in England, 72 in Scotland, 40 in Wales, and 18 in Northern Ireland. The total number of MPs may within certain limits be varied as a result of constituency changes proposed by the boundary commissions. Various Categories of people are disqualified from membership. They include those under 21, civil servants, the police and the regular armed forces, aliens, those declared bankrupt, convicted prisoners and people guilty of corrupt or illegal practices, the holders of most judicial offices (but not lay magistrates), and the holders of a large number of public offices listed in the House of Commons Disqualification Act 1975. Public offices that disqualify include stewardship of the Chiltern Hundreds and the Manor of Northstead. The number of members who may hold ministerial office is limited to 95. The House of Lords Act 1999 removed an earlier disqualification on hereditary peers from voting and from being elected members of the House of Commons. The Removal of Clergy Disqualification Act 2001 permits clergy of all denominations to be MPs. The House is presided over by the Speaker, who is elected from among themselves by the members at the beginning of each Parliament. The Speaker is responsible for the orderly conduct of proceedings, which must be supervised with complete impartiality, and is the person through whom the members may collectively communicate with the sovereign. The Leader of the House is a government minister responsible for arranging the business of the House in consultation with the Opposition.

House of Lords - The second chamber of Parliament (also known as the Upper House), which scrutinizes legislation and has judicial functions. The House of Lords Act 1999 substantially changed the constitution of the House by excluding hereditary peers from a place in the House as of right, although for a transitional period 92 were allowed to remain on merit. Of these, 75 were elected by their own political party or by cross-bench (usually non-party-political) groups. A further 15 hereditary peers were elected to act as Deputy Speakers or Committee chairmen. Two hereditary royal appointments were also retained: the Earl Marshal and the Lord Great Chamberlain. The other members of the Lords are (as at March 2006) life peers (604) or bishops (26), comprising the Archbishops of Canterbury and York, the Bishops of London, Durham, and Winchester, and 21 other Anglican bishops selected according to seniority of appointment. Long-term reform of the Lords is currently being debated; it is envisaged that the reformed chamber will have about 600 members but there is so far no agreement as to whether these should be elected, appointed, or some combination of the two. The House is presided over by the Lord Chancellor and its business is arranged, in consultation with the Opposition, by a government minister appointed Leader of the House. The Lords is the final court of appeal in the UK in both civil and criminal cases, although it refers some cases to the European Court of Justice for a ruling. In its judicial capacity the Lords formally adopts opinions delivered by an Appellate Committee (of which there are two), and it is a constitutional convention that the only peers who may participate in the proceedings of the committee are the Lord Chancellor, the Lords of Appeal in Ordinary, and others who have held high judicial office. Under the Constitutional Reform Act 2005 the law lords will be removed from the legislature to a new Supreme Court and the judicial functions of the Lord Chancellor will be transferred to the Lord Chief Justice.

Injunction - n. A remedy in the form of a court order addressed to a particular person that either prohibits him from doing or continuing to do a certain act (a prohibitory injunction) or orders him to carry out a certain act (a mandatory injunction). The remedy is discretionary and will be granted only if the court considers it just and convenient to do so; it will not be granted if damages would be a sufficient remedy.
Injunctions are often needed urgently. A temporary injunction (an interim injunction) may therefore be granted at a special hearing pending the outcome of the main hearing of the case. If it is granted, the claimant must undertake to compensate the defendant for any damage he has suffered by the grant of the injunction if the defendant is successful in the main action. If judgment is given for the claimant in the main action, a perpetual injunction may be granted. A person who fails to abide by the terms of an injunction may be guilty of contempt of court.

Judicial review - 1. The principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires. The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction. The mechanism for seeking judicial review is by making a claim under the procedure provided for in Rule 54 of the Civil Procedure Rules. Claims are made to the Administrative Court, which is part of the High Court. The common law grounds on which judicial review may be granted were defined in the case Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) as illegality, irrationality, and procedural impropriety. In terms of the Human Rights Act 1998, judicial review may also be used to challenge action by public authorities that is incompatible with the European Convention on Human Rights. If the claim for a judicial review is successful, the court may grant a quashing order, mandatory order, prohibiting order, declaration, or injunction; it may also award damages in certain circumstances.
2. In European Union law, the European Court of Justice has a judicial review function provided for under Article 230 of the EC Treaty. In terms of this provision, community acts (i.e. legally binding acts of the community institutions) are challengeable by means of judicial review on the grounds of lack of competence, infringement of an essential procedural requirement, or infringement of the Treaty or any rule of law relating to its application or misuse of powers. Action can be brought by an institution of the EU, a member state, or (in certain limited circumstances) an individual.

Local government - A form of government in which responsibility for the regulation of certain matters within particular localities (local government areas) is delegated by statute to locally elected councillors.

Locus standi - [Latin: a place to stand] The right to bring an action or challenge some decision. Questions of locus standi most often arise in proceedings for judicial review.

Magna Carta - The Great Charter of Runnymede, acceded to by King John in 1215 after armed rebellion by his barons. It guaranteed the freedom of the church, restricted taxes and fines, and promised justice to all. Confirmed frequently by subsequent feudal kings, it has since been largely repealed as having only symbolic significance.

Margin of appreciation - A concept created by the European Court of Human Rights to allow a certain amount of freedom for each signatory state to regulate its own activities and its application of the European Convention on Human Rights without being subject to review by the Court. This freedom is not available to national courts when considering Convention issues arising within their own countries. However, in some cases the domestic courts, when reviewing decisions of public authorities under the Convention, may defer on democratic grounds to those elected bodies

Ministerial responsibility - The responsibility to Parliament of the Cabinet collectively and of individual ministers for their own decisions and the conduct of their departments. A minister must defend his decisions without sheltering behind his civil servants; if he cannot, political pressure may force his resignation. Case: Carltona Ltd v Works Commissioners [1943] 2 All ER 560 (CA).

Misfeasance in public office - The only tort available solely against public authorities or persons holding public office. It consists of an abuse of power by a public authority or person holding public office that is affected by malice or bad faith and that deprives the plaintiff of some benefit or causes him some loss (Three Rivers DC v Governor and Company of the Bank of England (No 2) [2000] 2 WLR 1220 (HL)).

Natural justice - Rules of fair play, originally developed by the courts of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decisions of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person's status, rights, or liabilities. Any decision reached in contravention of natural justice is void as ultra vires. There are two principal rules. The first is the rule against bias, i.e. against departure from the standard of even-handed justice required of those who occupy judicial office – nemo judex in causa sua (or in propria causa): no man may be a judge in his own cause. This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality (R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 2 WLR 272 (HL); Porter v Magill [2001] UKHL 67, [2002] 2 AC 357; Davidson v Scottish Ministers [2004] UKHL 34, [2005] SC 7). The second rule is known as audi alteram partem: hear the other side. It states that a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case (R v Chief Constable of North Wales Police, ex p Evans [1982] 1 WLR 1155 (HL); R v Army Board of the Defence Council, ex p Anderson [1992] QB 169; R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 (HL)). The rules of natural justice provide a minimum standard of procedural fairness and the exact requirements will vary depending on the context.

Negligence - n. 1. Carelessness amounting to the culpable breach of a duty: failure to do or recognize something that a reasonable person (i.e. an average responsible citizen) would do or recognize, or doing something that a reasonable person would not do. In cases of professional negligence, involving someone with a special skill, that person is expected to show the skill of an average member of his profession (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (HL)). Negligence may be an element in a few crimes, e.g. careless and inconsiderate driving, and various regulatory offences, which are usually punished by fine. The main examples of serious crimes that may be committed by negligence are sexual offences under the Sexual Offences Act 2003 and manslaughter (in one of its forms).
2. A tort consisting of the breach of a duty of care resulting in damage to the claimant. Negligence in the sense of carelessness does not give rise to civil liability unless the defendant's failure to conform to the standards of the reasonable man was a breach of a duty of care owed to the claimant, which has caused damage to him. Negligence can be used to bring a civil action when there is no contract under which proceedings can be brought. Normally it is easier to sue for breach of contract, but this is only possible when a contract exists. Generally, fewer heads of damage can be claimed in negligence than in breach of contract, but the rules limiting the time within which actions can be brought may be more advantageous for actions in tort for negligence than for actions in contract.

Nuisance - n. An activity or state of affairs that interferes with the use or enjoyment of land or rights over land (private nuisance) or with the health, safety, or comfort of the public at large (public nuisance). Private nuisance is a tort, protecting occupiers of land from damage to the land, buildings, or vegetation or from unreasonable interference with their comfort or convenience by excessive noise, dust, fumes, smells, etc. An action is only available to persons who have property rights (e.g. owners, lessees) or exclusive occupation. Thus, for example, lodgers and members of a property owner's family cannot sue in private nuisance (Hunter v Canary Wharf Ltd [1997] 2 WLR 684 (HL)).
Physical damage is actionable when the damage is of a type that is reasonably foreseeable and provided it does not arise solely because the claimant has put his land to a hypersensitive use. Interference with comfort is actionable when it is considered unreasonable as judged by a number of factors, the most important of which is the nature of the locality. The main remedies are damages and an injunction. Alternatively there is a limited right to abate (i.e. remove) the nuisance. Where a statutory framework and remedy exist, there is no common-law action in nuisance and such a regulatory scheme is compliant with the Human Rights Act 1998 (Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42).
Public nuisance is a crime. At common law it includes such activities as obstruction of the highway, carrying on an offensive trade, and selling food unfit for human consumption. The Attorney General or a local authority may bring a civil action for an injunction on behalf of the public but a private citizen may obtain damages in tort only if he can prove some special damage over and above that suffered by the public at large.
Statutory nuisances are created by provisions dealing with noise, public health, and the prevention of pollution and permit a local authority to control neighbourhood nuisances by the issue of an abatement notice.
The Protection from Harassment Act 1997 enables individuals to be prevented from harassing their neighbours

Official secrets - For the purpose of the Official Secrets Acts 1911–89, information that is categorized as a secret code or password or that is intended to be (or might be) useful to an enemy. Under the Acts it is an offence for a Crown servant (or any other person subject to the provisions of the Acts) to disclose any information relating to UK security or intelligence matters without lawful authority.

Parliament - n. The legislature of the UK, consisting of the sovereign, the House of Lords, and the House of Commons. Under the Parliament Act 1911, the maximum duration of any particular Parliament is five years, after which its functions expire. In practice, a Parliament's life always ends by its earlier dissolution by the sovereign under the royal prerogative; this proclamation also summons its successor. The date of dissolution is chosen by the Prime Minister. The life of a Parliament is divided into sessions, normally of one year each, which are ended when Parliament is prorogued (also under the prerogative) by a royal commission. Each House divides a session into sittings, normally of a day's duration, which end when a motion for adjournment is passed. The functions of Parliament are the enactment of legislation, the sanctioning of taxation and public expenditure, and the scrutiny and criticism of government policy and administration.

Parliamentary Commissioner for Administraion – See Parliamentary Ombudsman - (Parliamentary Commissioner for Administration) An independent official appointed under the Parliamentary Commissioner Act 1967 (as amended by the Parliamentary and Health Service Commissioners Act 1987) to investigate complaints by individuals or corporate bodies of injustice arising from maladministration by a government department or by certain nondepartmental public bodies, such as the Arts Councils and the Housing Corporation. Appointment of the Ombudsman is by the Crown on the Prime Minister's advice. The Ombudsman may investigate complaints only if they are submitted to him in writing through a Member of Parliament; investigation is entirely at his discretion. If he upholds a complaint and it is not remedied, he reports this to Parliament. Complaints of maladministration by devolved bodies in Wales and Scotland are investigated by the Welsh Administration Ombudsman and the Scottish Parliamentary Commissioner for Administration, respectively.

Privacy - n. The right to be left alone. The right to a private life as set out in Article 8 of the European Convention on Human Rights is now part of UK law as a consequence of the Human Rights Act 1998. The right includes privacy of communications (telephone calls, correspondence, etc); privacy of the home and office; environmental protection (including freedom from excessive noise: Hatton v UK [2003] 37 EHRR 611); the protection of physical integrity; and protection from unjustified prosecution and conviction of those engaged in consensual nonviolent sexual activities. This right is a qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. Public authorities have a limited but positive duty to protect privacy from interference by third parties.

Private law - The part of the law that deals with such aspects of relationships between individuals that are of no direct concern to the state. It includes the law of property and of trusts, family law, the law of contract, mercantile law, and the law of tort.

Private members’ bill – See Bill - Bill n. A draft of a proposed Act of Parliament, which must (normally) be passed by both Houses before becoming an Act. Bills are either public or private, and the procedure governing their passing by Parliament depends basically on this distinction. In general, a public Bill is one relating to matters of general concern; it is introduced by the government or by a private member (private member's Bill). In the House of Commons the government sets aside certain Fridays for debate on private member's Bills, and a ballot at the beginning of each session of Parliament determines the members whose Bills are to have priority on those days. A private member's Bill that is not supported by the government stands little chance of successfully completing all stages and becoming an Act. The government sometimes prefers a private member to sponsor a particularly controversial Bill that they themselves support; for example, the Abortion Act 1967 was introduced by a private member (David Steel) and was successful because it had the support of the government of the day. A public Bill, unless predominantly financial, can be introduced in either House (less controversial Bills are introduced in the Lords first). The Bill is presented by the minister or other member in charge, passed by being read three times, and then sent to the other House. Its first reading is a formality, but it is debated on second and third readings, between which it goes through a Committee stage and a Report stage during which amendments may be made. A Bill that has not become an Act by the end of the session lapses; if reintroduced in a subsequent session, it must go through all stages again.
A private Bill is one designed to benefit a particular person, local authority, or other body, by whom it is presented. It is introduced on a petition by the promoter, which is preceded by public advertisement and by notice to those directly affected. Its Committee stage in the first House is conducted before a small group of members, and evidence for and against it is heard. Thereafter, it follows the procedure for public Bills.
A hybrid Bill is a government bill that is purely local or personal in character and affects only one of a number of interests in the same class. For example, a government Bill to nationalize one only of several private-sector airlines would be hybrid. A hybrid Bill proceeds as a public Bill until after second reading in the first House, after which it is treated similarly to a private Bill.

Proportionality - n. 1. A principle of European Union law requiring that action taken by the EU does not go beyond what is necessary to achieve the objectives of the EC Treaty. Originally developed by the European Court of Justice as a general principle of EC law, it is now incorporated into Article 5 of the EC Treaty, together with subsidiarity. It is a requirement for validity of EU legislation and breach of the principle of proportionality can thus be used as a ground for judicial review of acts of the EU institutions under Article 230 of the Treaty. In order to be proportionate, action must be appropriate, necessary, and not impose an excessive burden on those affected by it (Case C-84/94 UK v Council [1996] ECR I-5755).
2. A central provision of the European Convention on Human Rights. It applies particularly to the qualified rights and where the expression "necessary in a democratic society" is contained within the article. Whether or not such a right has been violated will depend on whether the interference with the right is proportionate to the legitimate aim pursued by that interference. Thus even if a policy that interferes with a Convention right might be aimed at securing a legitimate purpose (e.g. the prevention of crime), this will not in itself justify the violation if the means adopted to secure the purpose are excessive in the circumstances. The principle is applied in the UK courts in cases under the Human Rights Act.

Public interest immunity - A doctrine that authorizes the nondisclosure of information or documents relevant to litigation on the basis that disclosure of such evidence is against the public interest. According to the doctrine of Crown privilege, only the Crown could apply to the court to suppress evidence on this basis, it being accepted that a ministerial affidavit or certificate to the effect that the production of certain evidence would be contrary to the public interest was conclusive. Crown privilege has now been replaced by public interest immunity, which enables any party or witness in any proceedings to apply for nondisclosure (R v Lewes Justices, ex p Home Secretary [1973] AC 388). Where a claim of public interest immunity is made, it is for the court to weigh the interests of justice against the reasons for the claim of immunity. In the majority of cases this requires the court to inspect the documents. If, in the view of the court, the public interest would not be prejudiced by disclosure, production of the documents will be ordered (Conway v Rimmer [1968] AC 910 (HL); Burmah Oil v Bank of England [1980] AC 1090 (HL); Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 (HL); R v Chief Constable of West Midlands Police, ex p Wiley [1995] AC 274 (HL)).

Public law - The part of the law that deals with the constitution and functions of the organs of central and local government, the relationship between individuals and the state, and relationships between individuals that are of direct concern to the state. It includes constitutional law, administrative law, tax law, and criminal law.

Royal assent - The agreement of the Crown, given under the royal prerogative and signified either by the sovereign in person or by royal commissioners, that converts a Bill into an Act of Parliament or gives a Measure the force of an Act. It is the duty of the Clerk of the Parliaments to endorse the date on which it was given immediately after the long title.

Royal prerogative - The special rights, powers, and immunities to which the Crown alone is entitled under the common law. Most prerogative acts are now performed by the government on behalf of the Crown. Some, however, are performed by the sovereign in person on the advice of the government (e.g. the dissolution of Parliament) or as required by constitutional convention (e.g. the appointment of a Prime Minister). A few prerogative acts (e.g. the granting of certain honours, such as the Order of the Garter) are performed in accordance with the sovereign's personal wishes.
The Crown has limited powers of legislating under the prerogative, principally as respects the civil service and UK dependent territories. It does so by Order in Council, ordinance, letters patent, or royal warrant. The dissolution and prorogation of Parliament and the granting of the royal assent to Bills take place under the prerogative. Originally the fountain of justice from which the first courts of law sprang, the Crown still exercises (through the Home Secretary) the prerogative of mercy and retains the right (through the Attorney General) to stop a prosecution by entering a nolle prosequi. In foreign affairs, the sovereign declares war, makes peace and international treaties, and issues passports under the prerogative. Many appointments (e.g. the higher judiciary, archbishops, and diocesan bishops) are made under the prerogative, and a variety of honours, including new hereditary peerages, are conferred by the Crown as the fountain of honour. The sovereign is head of the armed forces, and, although much of the law governing these is now statutory, their disposition generally remains a matter for the prerogative. There is a prerogative power, subject to the payment of compensation, to expropriate or requisition private property in times of war or apprehended war. Miscellaneous prerogative rights include the rights to treasure trove and to bona vacantia. An important immunity of the sovereign is the prerogative of perfection. The common-law maxim that "the King can do no wrong" resulted in the complete immunity of the sovereign personally from all civil and criminal proceedings for anything that he or she might do. This personal immunity remains, but actions may now be brought against the Crown under the Crown Proceedings Act 1947.
If a statute confers on the Crown powers that duplicate prerogative powers, the latter are suspended during the existence of the statute unless it either abolishes them or preserves them as alternative powers.

Rule of law - 1. The supremacy of law.
2. A feature attributed to the UK constitution by Professor Dicey (Law of the Constitution, 1885). It embodied three concepts: the absolute predominance of regular law, so that the government has no arbitrary authority over the citizen; the equal subjection of all (including officials) to the ordinary law administered by the ordinary courts; and the fact that the citizen's personal freedoms are formulated and protected by the ordinary law rather than by abstract constitutional declarations.

Select committee - A committee appointed by either House of Parliament or both Houses jointly to investigate and report on a matter of interest to them in the performance of their functions. Examples are the committees of the Commons that examine government expenditure or the activities of government departments and the nationalized industries, and the Joint Committee on Statutory Instruments.

Separation of powers - The doctrine that the liberty of the individual is secure only if the three primary functions of the state (legislative, executive, and judicial) are exercised by distinct and independent organs. It was propounded by Montesquieu (De l'Esprit des Lois, 1748), who regarded it as a feature of the UK constitution. In fact, however, while the judiciary is largely independent, the legislature and the executive depend on one another and their members overlap. The doctrine had a great influence over the form adopted for the constitution of the USA and many other countries.

Statutory instrument - Any delegated legislation (not including subdelegated legislation) to which the Statutory Instruments Act 1946 applies. This includes both (1) delegation made under powers conferred by an Act passed after 1947, either on the Crown or on a government minister, and expressed by that Act to be exercisable by Order in Council in the former case or by statutory instrument in the latter; and (2) delegation made under powers conferred by pre-1947 legislation. The 1946 Act requires statutory instruments to be numbered, printed, and published by the Queen's printer. They are numbered consecutively for each calendar year in the order in which the printer receives them; for example, the first statutory instrument to be received in 1993 would be cited as "S.I. 1993 No. 1". Moreover, as a modification of the rule ignorantia juris non excusat (ignorance of the law is no excuse), the Act makes nonpublication a defence to proceedings for contravening a statutory instrument unless other adequate steps had been taken to bring it to the public notice. The Act is also concerned with certain aspects of parliamentary control. It standardizes negative resolution procedure for statutory instruments by providing that, if the enabling statute simply makes them subject to annulment by resolution of either House of Parliament, they are to be laid before Parliament for 40 days and liable to annulment during that period. It further provides that any statutory instrument required to be laid (either because of that rule or because the enabling statute expressly says so) must be laid before becoming operative unless there is good reason to the contrary (in which case, an explanation must be given to the Lord Chancellor and the Speaker).

Trespass - n. A wrongful direct interference with another person or with his possession of land or goods. In the middle ages, any wrongful act was called a trespass, but only some trespasses, such as trespass by force and arms (vi et armis), were dealt with in the King's Courts. The distinguishing feature of trespass in modern law is that it is a direct and immediate interference with person or property, such as striking a person, entering his land, or taking away his goods without his consent. Indirect or consequential injury, such as leaving an unlit hole into which someone falls, is not trespass. Trespass is actionable per se, i.e. the act of trespass is itself a tort and it is not necessary to prove that it has caused actual damage.
There are three kinds of trespass: to the person, to goods, and to land. Trespass to the person may be intentional or negligent, but since negligent physical injuries are remedied by an action for negligence, the action for trespass to the person is now only brought for intentional acts, in the form of actions for assault, battery, and false imprisonment. Trespass to goods includes touching, moving, or carrying them away (de bonis asportatis). It may be intentional or negligent, but inevitable accident is a defence. Trespass to land usually takes the form of entering it without permission. It is no defence to show that the trespass was innocent (e.g. that the trespasser honestly believed that the land belonged to him). Trespass to land or goods is a wrong to possession rather than to ownership. Thus a tenant of rented property, for example, has the right to sue for trespass to that property. Trespass to land is a tort but not normally a crime: the notice "Trespassers will be prosecuted" is therefore usually misleading.
However, trespass may sometimes constitute a crime. Thus squatters may be guilty of a crime; it is a crime to trespass on diplomatic or consular premises or premises similarly protected by immunity; and it is a crime to enter and remain on any premises as a trespasser with a weapon of offence for which one has no authority or reasonable excuse, or to be on any premises, land, or water as a trespasser with a firearm for which one has no reasonable excuse. The Criminal Justice and Public Order Act 1994 created the offences of aggravated trespass and collective trespass. The summary offence of aggravated trespass occurs when a trespasser in the open air seeks to intimidate, obstruct, or disrupt a lawful activity, such as hunting; an offender can be arrested and failure to leave the land on the direction of a senior police officer is also an offence. Collective trespass occurs when two or more people are trespassing with the purpose of residing on land belonging to another person. The police have powers to direct collective trespassers to leave if they have caused damage, used threatening or abusive words towards the occupier, or brought six or more vehicles (which may be caravans) onto the land. Failure to leave or re-entry within three months is a summary offence for which a uniformed police officer has a power of arrest. Both collective and aggravated trespass are punishable by a fine and/or three months' imprisonment.

Ultra vires - [Latin: beyond the powers] Describing an act by a public authority, company, or other body that goes beyond the limits of the powers conferred on it. Ultra vires acts are invalid. The ultra vires doctrine applies to all powers, whether created by statute or by a private document or agreement (such as a trust deed or contract of agency). In the field of public (especially administrative) law it governs the validity of all delegated and subdelegated legislation. This is ultra vires not only if it contains provisions not authorized by the enabling power but also if it does not comply with any procedural requirements regulating the exercise of the power. Subdelegated legislation that is within the terms of the delegated legislation authorizing it may still be invalid if the power to make that legislation did not include the power to subdelegate. The individual can normally establish the invalidity of delegated or subdelegated legislation by raising the point as a defence in proceedings against him for contravening it. The doctrine also governs the validity of decisions made by inferior courts or administrative or domestic tribunals and the validity of the exercise of any administrative power. The decision of a court or tribunal is ultra vires if it exceeds jurisdiction, contravenes procedural requirements, or disregards the rules of natural justice (the power conferring jurisdiction being construed as requiring the observance of these). The exercise of an administrative power is ultra vires not only if unauthorized in substance, but equally if (for example) it is procedurally irregular, improperly motivated, or in breach of the rules of natural justice. The remedies available for this second aspect of the doctrine are quashing orders, prohibiting orders, declaration, and injunction (the first two of these are public remedies, not available against decisions of domestic tribunals whose jurisdiction is based solely on contract).
Acts by a registered company are ultra vires if they exceed the objects clause of the memorandum of association. A company member can restrain such acts prior to performance; thereafter they are treated as valid (though they may be a breach of directors' duties). Section 35 of the Companies Act 1985 (as amended in 1989) made it much harder to challenge ultra vires acts of a company.

Oxford Dictionary of Law. Ed. Elizabeth A. Martin and Jonathan Law. Oxford University Press, 2006. Oxford Reference Online. Oxford University Press. 15 January 2007 www.oxfordreference.com

View print version

Oxford University Press, Online Resource Centre, Selected Public Law Terms.

Selected Public Law Terms