Elliott & Thomas: Public Law

Written by Mark Elliott and Robert Thomas, Public Law is the UK’s best-selling textbook in the field. The following post is based on the preface to the third edition, which was published by Oxford University Press in 2017.

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Screen Shot 2017-07-20 at 16.58.20To say that public law in the United Kingdom is a fast-moving subject would be an understatement. We were putting the finishing touches to the first edition of this book as the Coalition Government, which was in office from 2010 to 2015, was formed. At its inception, the Coalition Government endorsed a substantial programme of constitutional reform, although key elements of it — including the possibility of changing the voting system for UK general elections, investigating the replacement of the Human Rights Act 1998 with a ‘Bill of Rights’, and the replacement of the current House of Lords with a wholly or mainly elected second chamber — ultimately did not come to fruition.

The second edition of Public Law was published in 2014, shortly before the referendum on Scottish independence that took place in September of that year. Although the referendum delivered a majority against independence, the political and constitutional significance of the referendum — thanks not least to how close the ‘Yes’ campaign came to securing a majority in favour of independence — would be difficult to exaggerate. As the referendum approached and the break-up of the country appeared to be in prospect, the leaders of the major political parties made a ‘vow’ to the people of Scotland promising greater autonomy within the UK if independence was averted. That promise was subsequently reflected in the devolution of additional powers to Scotland via the Scotland Act 2016, and forms part of the backdrop to the new Welsh devolution legislation that is making its way through the UK Parliament at the time of writing.

The third edition of Public Law was completed in the aftermath of the referendum held on 23 June 2016 concerning the UK’s membership of the European Union. The result of that referendum, in which just over half of those who voted favoured the UK’s departure from the EU, sent political and economic shockwaves across the globe, and is an event of historic significance. The implications of ‘Brexit’ will extend far beyond its consequences for the UK’s constitutional arrangements — but its impact upon those arrangements will nevertheless be profound. We explore the likely constitutional significance of Brexit in detail in Chapter 8. However, reference is also made in many other parts of the book to the possible consequences of Brexit. Developments in this area are likely to be particularly fast-moving over the coming months and years, and updates will be posted to the Online Resource Centre that accompanies Public Law.

Elliott and Thomas’ Public Law has quickly established itself as a modern classic. It delivers depth and breadth while remaining accessible to those coming to public law for the first time — Professor Jeff King, University College London

To the student attempting to get to grips with UK public law, the speed and frequency with which substantial elements of the constitution change may seem bewildering and disorientating, and such phenomena can certainly be an obstacle to understanding. In writing this new edition, we have attempted to be sensitive to guard against that risk. In doing so, we have not sought to disguise the significance or complexity of the changes that the UK’s constitutional arrangements have undergone in recent years and will undergo in the years to come. However, we have attempted to examine such developments in a way that is grounded in a clear exposition of the fundamental, and more enduring, elements of the constitutional order. As in past editions, therefore, we place the three fundamental principles of the UK constitution — the rule of law, the separation of powers, and the sovereignty of Parliament — front and centre, using them as anchor points by reference to which the changing nature of the constitution falls to be understood, calibrated, and evaluated. For similar reasons, we have also retained our three key themes — the importance of accountability, the relationship between legal and political constitutionalism, and the multi-layered nature of the constitution. Those themes are used as vehicles for exploring and making sense of the modern UK constitution, and form a means by which the often disparate parts of the subject can be understood in a more cohesive way.

New to the third edition

Every chapter in this edition has been thoroughly updated, and many parts of the text have been fundamentally rewritten. As explained above, we have attempted to reflect the richness and diversity of the constitutional developments that have taken place since the previous edition was written, while placing those developments in context by reference to the constitution’s fundamental principles and the book’s key themes. The new material and developments found in this edition are far too numerous to list exhaustively, but the following are worth emphasising.

Chapter 7 has been rewritten and its focus has been reoriented, as the new title — Devolution and the Territorial Constitution — indicates. The chapter fully reflects existing and pending changes to the UK’s territorial constitution, including those reflected in the Scotland Act 2016, the Wales Bill 2016–17 and the Cities and Local Government Devolution Act 2016. Chapter 8 — now entitled The European Union and Brexit — has been extensively rewritten in the light of the outcome of the referendum on the UK’s membership of the EU. The chapter continues to examine the implications of EU membership, not least because the UK remains a member of the EU for the time being, the referendum outcome notwithstanding. However, the orientation of the chapter has been changed, with the focus now being on understanding the implications of EU membership in order that the constitutional significance and impact of Brexit can properly be understood.

This is an excellent book which our students enjoy using. It explains issues well without dumbing down and engages with debate in a way which encourages students to form their own views — Chloe Wallace, Associate Professor, University of Leeds

The chapters on judicial review have been thoroughly updated, and the discussion of substantive judicial review in Chapter 11 has been rewritten in order to take account of recent key UK Supreme Court decisions including Pham v Secretary of State for the Home Department and Keyu v Secretary of State for Foreign and Commonwealth Affairs. The chapters have also been updated to take account of important statutory changes to judicial review introduced by the Criminal Justice and Courts Act 2015. Meanwhile, the chapters on administrative justice have been thoroughly updated. For instance, the discussion of Ombudsmen in Chapter 15 has been revised to include important developments, such as the UK Government’s proposals to create a Public Service Ombudsman which will encompass the existing jurisdictions of Parliamentary and Health Service Ombudsman and the Local Government Ombudsman. Similarly, Chapter 17 on inquiries has been updated to include key developments such as: the publication of the Iraq Inquiry; and the establishment of the Independent Inquiry into Child Sexual Abuse.

The chapters on human rights have been extensively updated in order to reflect recent developments in that area. For instance, Chapter 18, on the UK’s human rights framework, contains an expanded discussion of the notion of common law constitutional rights following UK Supreme Court judgments such as R (Osborn) v Parole Board and Kennedy v Charity Commission. Chapter 19, on freedom of expression, takes account of recent developments in relation to such matters as media regulation — including the creation of the Press Recognition Panel and the Independent Press Standards Organisation, as well as the abolition of the BBC Trust — and the Law Commission’s recommendations in relation to contempt of court. Chapter 19 also reflects recent Supreme Court judgments such as PJS v News Group Newspapers Ltd and In re JR38. Chapter 20, on freedom of assembly, examines the implications for the right to protest of Public Spaces Protection Orders, introduced by the Anti-social Behaviour, Crime and Policing Act 2014, while Chapter 21, on police powers, governance and accountability, examines changes to the police complaints system under the Policing and Crime Act 2017.

In addition to the new material and developments reflected in this edition, two other changes are worth highlighting. First, we have increased the amount of material presented in this edition in the form of tables, figures, and diagrams. We have drawn extensively from sources of empirical and statistical data in order to provide an additional perspective on the practical workings of the constitution and to deepen readers’ understanding. Our intention is that this will enable appropriate information to be conveyed in ways that are both economical and visually stimulating. Second, we added expert commentaries to some chapters in the second edition. Such commentaries are now to be found at the end of nearly every chapter. They are intended to add a further dimension to the book by exposing readers to a particular point of view or way of looking at a topic that adds to what is said in the chapter itself. In this way, we seek to demonstrate to students — and to encourage readers to reflect upon — the contestable and contested nature of public law as a subject.

The third edition of Public Law is published by Oxford University Press. Further information about the book can be found on the OUP website.

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