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Form of Legislation and the Rule of Law [Kõva köide]

Ronan Cormacain (Consultant legislative counsel, UK)

Formaat: Hardback, 328 pages, kõrgus x laius x paksus: 236x160x26 mm, kaal: 640 g
Ilmumisaeg: 22-Dec-2022
Kirjastus: Hart Publishing
ISBN-10: 1509938052
ISBN-13: 9781509938056

Teised raamatud teemal:

Primary sources of law
Constitutional & administrative law - (Hetkel poes: 1 nimetust)

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Formaat: Hardback, 328 pages, kõrgus x laius x paksus: 236x160x26 mm, kaal: 640 g
Ilmumisaeg: 22-Dec-2022
Kirjastus: Hart Publishing
ISBN-10: 1509938052
ISBN-13: 9781509938056

Teised raamatud teemal:

Primary sources of law
Constitutional & administrative law - (Hetkel poes: 1 nimetust)

Püsilink: https://www.kriso.ee/db/9781509938056.html

Märksõnad:

What does the rule of law mean, in practical terms, for the way that legislation is prepared, drafted and presented? It is a cornerstone of the UK legal order and requires certain things from the legal system, such as that the law must be intelligible, predictable and accessible. This book examines what those requirements mean for the form that legislation must take. Using the rule of law as the starting point, the author uses deductive reasoning to determine what flows from this in terms of the form of legislation. Each element of the rule of law is analysed to establish principles about the form that legislation ought to take, and the book examines how each principle can be given concrete effect. The originality lies in the nexus between the rule of law and the form of legislation. Much has been written about the nature and content of the rule of law, but relatively little has been devoted to legisprudence, the theory and practice of legislation. This book now draws these two subjects together in a detailed and innovative way.

What does the rule of law mean, in practical terms, for the way that legislation is prepared, drafted and presented? It is a cornerstone of the UK legal order and requires certain things from the legal system, such as that the law must be intelligible, predictable and accessible. This book examines what those requirements mean for the form that legislation must take.

Using the rule of law as the starting point, the author uses deductive reasoning to determine what flows from this in terms of the form of legislation. Each element of the rule of law is analysed to establish principles about the form that legislation ought to take, and the book examines how each principle can be given concrete effect.

The originality lies in the nexus between the rule of law and the form of legislation. Much has been written about the nature and content of the rule of law, but relatively little has been devoted to legisprudence, the theory and practice of legislation. This book now draws these two subjects together in a detailed and innovative way.

Arvustused

The focus of this book is the form of legislation (how it is structured, organised and expressed). As such it is highly relevant to legislative counsel. I have no hesitation in recommending it to them as not only an interesting read but a valuable source of guidance and advice. -- Eamonn Moran * The Loophole * An Intellectually stimulating monograph with deep theoretical insight combined with great potential for application. * Helen Xanthaki, University College London, UK *

Muu info

Taking an academic lens to the problem of legislative drafting, this book considers what the rule of law means, in practical terms, for the way that legislation is prepared, drafted and presented.

Foreword

vii

Acknowledgements

1 Introduction

(20)

1.1 The Problem with Legislation

(1)

1.2 Giving Effect to the Rule of Law in the Form of Legislation

(2)

1.3 Methodology

(2)

1.4 The Rule of Law

(5)

1.5 The Form of Legislation

(4)

1.6 Principles for the Form of Legislation as Contained in Legislative Drafting Principles

(6)

1.7 To Whom is this Book Addressed?

(1)

2 Accessibility of Legislation

(1)

Introduction

(1)

Part 1 The Theory of Accessibility

(12)

2.1 Accessibility

(3)

2.2 Accessibility of Legislation in the UK

(5)

2.3 Difficulties with Providing (Electronic) Access to Legislation

(4)

Part 2 Promoting Accessibility in the Form of Legislation

(40)

2.4 Availability

(18)

2.5 Navigability

(17)

2.6 Inclusivity

(4)

Conclusion

(1)

3 Prospectivity of Legislation

(1)

Introduction

(1)

Part 1 The Theory of Prospectivity

(8)

3.1 The Importance of Prospectivity

(2)

3.2 The Nature of Prospectivity

(1)

3.3 The Nature of Retrospectivity: Janus-faced Legislation

(5)

Part 2 Form of Legislation Principles for Promoting Prospectivity

(10)

3.4 Explicitness About the Time Period to Which the Legislation Applies

(2)

3.5 Transitional and Savings Provisions

(1)

3.6 Substantive Criteria for Determining Whether Janus-faced Legislation is Acceptable

(6)

Conclusion

(1)

4 Predictability of Legislation

(1)

Introduction

(1)

Part 1 The Theory of Predictability

(5)

4.1 The Nature and Importance of Predictability

(5)

Part 2 Promoting Predictability in the Form of Legislation

(45)

4.2 Determinacy

(12)

4.3 Stability

108

(8)

4.4 Clear Commencement

116

(3)

4.5 Consistency

119

(8)

4.6 Application in the Real World

127

(7)

4.7 Implementability

134

(5)

Conclusion

139

(2)

5 Intelligibility

141

(1)

Introduction

141

(1)

Part 1 The Theory of Intelligibility

141

(8)

5.1 The Importance of Intelligibility

141

(3)

5.2 Why is Legislation Sometimes Not Intelligible?

144

(5)

Part 2 Promoting Intelligibility in the Form of Legislation

149

(40)

5.3 Characteristics of the User

149

(11)

5.4 Intelligibility of Amending Legislation and of the Legislation as Amended

160

(7)

5.5 Excessive Interconnectedness of Legislation

167

(3)

5.6 Plain Language

170

(10)

5.7 Easification

180

(1)

5.8 Good Writing

181

(1)

5.9 Examples

182

(4)

Conclusion

186

(2)

6 Constraints on Discretion

188

(1)

Introduction

188

(1)

Part 1 The Theory of Constraints on Discretion

189

(4)

6.1 Law Not Discretion

189

(3)

6.2 But Not All Law and No Discretion

192

(1)

Part 2 Form of Legislation Principles for Constraining Discretion

193

(39)

6.3 Clear Demarcation between Law and Discretion

193

(1)

6.4 The Different Dimensions in Which Discretion Can be Constrained

194

(7)

6.5 Rejecting Ouster Clauses

201

(7)

6.6 Curtailing Powers for Officials to Create Exemptions from the Law

208

(3)

6.7 Purpose Clauses

211

(1)

6.8 Constraining the Power to Make Secondary Legislation

212

(4)

6.9 Constraining the Power to Make Secondary Legislation: Rejecting Super-Enabling Clauses

216

(2)

6.10 Constraining the Power to Make Secondary Legislation: Curtailing Framework Legislation

218

(9)

6.11 Constraining the Power to Make Secondary Legislation: Rejecting Henry VIII Clauses

227

(2)

Conclusion

229

(3)

7 Equality before the Law

232

(1)

Introduction

232

(1)

Part 1 The Theory of Equality before the Law

232

(6)

7.1 The Meaning of Equality before the Law

232

(2)

7.2 The Chequered History of Legislation and Equality

234

(4)

Part 2 Form of Legislation Principles for Equality before the Law

238

(49)

7.3 Non-gendered Legislation

238

(9)

7.4 Offensive or Discriminatory Language More Generally

247

(1)

7.5 Gender Impact Assessments and Equality Impact Assessments

248

(2)

7.6 Vindicability

250

(5)

7.7 Intelligibility and Equal Access to the Law

255

(1)

7.8 Legislation and the Crown

256

(8)

7.9 Legislation and the Armed Forces

264

(3)

Conclusion

267

(2)

8 Conclusion

269

(18)

8.1 The Rule of Law Matters

269

(3)

8.2 And the Form of Legislation Can Promote it

272

(3)

8.3 Principles for the Form of Legislation Derived from the Rule of Law

275

(5)

8.4 Justification: What Value Do these Principles Add to Society?

280

(5)

8.5 The Why, What and How of Legislation

285

(2)

Bibliography

287

(16)

Index

303

Ronan Cormacain is a consultant legislative counsel and an editor at the journal Theory and Practice of Legislation, UK.

Form of Legislation and the Rule of Law [Kõva köide]

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