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Vol 21 No 11 Nov/Dec 2016

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Soft Law and Public Authorities: Remedies and Reform


ISBN13: 9781782256885
Published: February 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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This book considers the phenomenon of soft law employed by domestic public authorities. Lawyers have long understood that public authorities are able to issue certain communications in a way that causes them to be treated like law, even though these are neither legislation nor subordinate legislation.

Importantly for soft law as a regulatory tool, people tend to treat soft law as binding even though public authorities know that it is not. It follows that soft law's 'binding' effects do not apply equally between the public authority and those to whom it is directed.

Consequently, soft law is both highly effective as a means of regulation, and inherently risky for those who are regulated by it.

Rather than considering soft law as a form of regulation, this book examines the possible remedies when a public authority breaches its own soft law upon which people have relied, thereby suffering loss.

It considers judicial review remedies, modes of compensation which are not based upon a finding of invalidity, namely tort and equity, and 'soft' challenges outside the scope of the courts, such as through the Ombudsman or by seeking an ex gratia payment.

Subjects:
Constitutional and Administrative Law, Judicial Review
Contents:
1. Introduction

PART I: THE RISE OF SOFT LAW: DEFINITIONS AND ISSUES
2. Defining Soft Law
3. The Regulatory Purpose of Soft Law
4. The Regulatory Effect of Soft Law

PART II: COURT-BASED REMEDIES
5. Remedies Premised on Invalidity: The Province of Judicial Review
6. Procedural Judicial Review Remedies
7. Substantive Judicial Review Remedies
8. Court-based Remedies: Compensation not Premised on Invalidity
9. Private Law Liability: Example 1
10. Private Law Liability and Remedies: Example 2

PART III: NON-JUDICIAL REMEDIES
11. The Ombudsman
12. Discretionary Payments
13. Conclusions