Soft Law and Public Authorities: Remedies and Reform (Hart Studies in Comparative Public Law Book 11)

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. Volume 11 in the series Hart Studies in Comparative Public Law Foreword Acknowledgements Contents Table of Cases Table of Legislation 1. Introduction Part I: The Rise of Soft Law: Definitions and Issues 2. Defining Soft Law A. TYPES OF SOFT LAW B. DISCRETIONARY POWER 3. The Regulatory Purpose of Soft Law 4. The Regulatory Effect of Soft Law A.THE 'HARDENING' OF SOFT LAW B. TWO EXAMPLES OF THE REGULATORY EFFECTS OF SOFT LAW C. CONCLUSION Part II: Court-based Remedies 5. Remedies Premised on Invalidity: The Province of Judicial Review A. JUDICIAL REVIEW AND THE RULE OF LAW B. DOES JUDICIAL REVIEW CIVILISE LAW OR POWER? C. THE CONSTITUTIONAL LIMITS TO AUSTRALIAN JUDICIAL REVIEW D. THE INFLUENCE OF SOFT LAW ON JUDICIAL REVIEW PROCEEDINGS 6. Procedural Judicial Review Remedies A. POSSIBLE GROUNDS OF JUDICIAL REVIEW B. JUDICIAL REVIEW'S TRADITIONAL REMEDIAL SCOPE 7. Substantive Judicial Review Remedies A. CONTRASTING REMEDIAL MECHANISMS B. SUBSTANTIVE ENFORCEMENT OF LEGITIMATE EXPECTATIONS C. MONEY REMEDIES FOR INVALIDITY 8. Court-based Remedies: Compensation not Premised on Invalidity A. CAN PUBLIC AUTHORITIES EVER BE LIABLE IN TORT? B. CAN PUBLIC AUTHORITIES EVER BE LIABLE IN TORT WHERE INDIVIDUALS WOULD NOT BE? C. CAN PUBLIC AUTHORITIES BE LIABLE FOR BOTH ACTS AND OMISSIONS IN BREACH OF COMMON LAW DUTY? D. CAN PUBLIC AUTHORITIES BE LIABLE IN EQUITY WHERE AN ESTOPPEL IS RAISED? 9. Private Law Liability: Example 1 A. WOULD A CLEAR STATUTORY DUTY TO ACT EXPOSE THE OFFICERS TO TORT LIABILITY? B. IS A MERE STATUTORY POWER TO ACT SUFFICIENT TO IMPOSE A DUTY OF CARE ON THE OFFICERS? C. CAN A PROVISION IN THE POLICE MANUAL ASSIST THE PLAINTIFF IN ESTABLISHING THAT THE OFFICERS OWED HIM A COMMON LAW DUTY OF CARE? D. WHAT WOULD BE THE RESULT IF THE POLICE MANUAL WERE AVAILABLE TO THE PUBLIC, AND THE PLAINTIFF WAS AWARE OF ITS TERMS? E. WHAT WOULD BE THE RESULT IF THE POLICE MANUAL WERE AVAILABLE TO THE PUBLIC, BUT THE PLAINTIFF HAD NO SUBJECTIVE KNOWLEDGE OF ITS TERMS? 10. Private Law Liability and Remedies: Example 2 A. PRELIMINARY COMMENTS ON PRIVATE LAW LIABILITY FOR RELIANCE-BASED LOSS B. TORT LIABILITY C. EQUITABLE REMEDIES D. CONCLUSION Part III: Non-judicial Remedies 11. The Ombudsman A. THE DUAL ROLES AND CONSTITUTIONAL LOCATION OF THE OMBUDSMAN B. THE OMBUDSMAN AND THE RULE OF LAW C.THE OMBUDSMAN'S FUNCTIONS AND REMEDIAL CAPABILITIES D. THE OMBUDSMAN'S CAPACITY TO REVIEW MALADMINISTRATION 12. Discretionary Payments A. PRACTICAL REMEDIES B. LEGAL BASIS OF DISCRETIONARY COMPENSATION SCHEMES C. CHALLENGING DECISIONS UNDER DISCRETIONARY COMPENSATION SCHEMES D. CONCLUSION 13. Conclusions A. THEMES B. FUTURE DIRECTIONS Index "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." --publisher's description La jacquette indique : "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." "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."--Bloomsbury Publishing