The constitutional referendum is often conceptualised as the ultimate institutional expression of popular sovereignty. However, ‘direct democracy’ is viewed apprehensively by many political and legal theorists, particularly republican scholars. They argue that referendums risk engendering a dangerous ‘populism’ while detracting from the deliberative and moderating virtues of parliamentary democracy. In this paper, I defend the political value of the constitutional referendum from within republican theory, arguing that there is a misplaced focus on parliamentary supremacy within much of the literature on ‘political constitutionalism’. However, I argue it should be valued neither as a mechanism for giving expression to popular will, nor as an intervention by the mythologised ‘constituent power’ – or indeed, contra Tierney, as a ‘sovereign’ exercise in any sense. Rather, it has two main, overlapping virtues: first, its role in facilitating the contestation and checking of executive power in the area of constitutional change, and secondly, its instrumental role in fostering a wider culture of civic participation.

How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign's promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens' ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.

Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.

This paper interrogates the predisposition in favour of informal, low-intervention control styles of enforcement advocated by the ‘better regulation’ movement, and which resonates throughout the Hampton Report recommendations which are currently being implemented in the UK. It focuses on three practices that reflect the trend towards diverting regulatory enforcement action away from the courts in favour of reliance on formal administrative sanctioning powers ranging from ‘hard’ to ‘soft’: the use of negotiated penalty settlements, the acceptance of administrative undertakings (‘enforcement undertakings’) and the provision of firm-specific compliance advice by regulators. Each practice is explored through various analytical lenses which enable the underlying constitutional tensions to be identified and interrogated. In so doing, it demonstrates how the emphasis on bargaining, negotiation and discussions between regulators and those they are responsible for regulating advocated by the UK better regulation movement may antagonise several constitutional values, including transparency, accountability, due process and participation, as well as several values associated with formal conceptions of the rule of law. On the other hand, resort to negotiation and discussion in regulatory enforcement can generate important benefits, largely in facilitating the timely, creative and cost-effective resolution of enforcement disputes while avoiding the formality, delay and hostility associated with formal court adjudication. This ‘clash of logics’ can be traced to inherent differences between bargaining, on the one hand, and adjudication on the other. Bargaining and adjudication represent two quite different and distinct forms of ordering through which disputes can be resolved, and it is these differences that lie at the foundation of their respective virtues and shortcomings when employed to resolve disputes concerning regulatory violations.

This paper compares and contrasts state emergency responses to national security crises with responses deployed in a period of economic crisis. Specifically, this paper challenges the appropriateness and legitimacy of the standard emergency response of legislative (as distinct from judicial) deference to the executive when confronting such economic crises. This will be done by questioning the significance in periods of economic crisis of the two principal factors that justify deferring to the executive during a state of emergency pertaining to national security: (i) the necessity of the action taken; and (ii) that the executive has an expertise in decision making in the specific area in question. Ultimately, this paper questions the application of the emergency paradigm to economic crises, arguing that such responses are rarely temporary and instead usher in a ‘new normalcy’.

This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998 (HRA), should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility.

Local environmental quality is best understood as a measure of the aesthetic complexion of public space in the urban environment. Anti‐social acts causing damage to the physical environment of local communities have, traditionally, attracted little moral opprobrium; and the role of local authorities in safeguarding local environmental quality has been undervalued. However, this is an issue that has been proven to have a significant impact on the quality of life of local communities, particularly those in deprived neighbourhoods. This paper argues, therefore, that we need to develop a comprehensive legal framework to safeguard local environmental quality in the future. This problem has so far been tackled as nuisance, local environmental crime or anti‐social behaviour. The paper concludes that an approach based on measures to tackle incivility in society is to be preferred; thus, the Anti‐social Behaviour, Crime and Policing Act 2014 will be particularly significant in this regard. However, some amendments to this legislation will be required to ensure its effective application to the problems of local environmental quality. Further measures should also be taken to support citizen participation and education as part of a comprehensive legal framework for safeguarding the local environment.

Cuts in the Charity Commission's budget have caused it to retrench in its regulatory activity and re-prioritise its core functions. As a consequence, the Commission has promoted greater trustee self-reliance and charity-sector provision of regulatory services. This paper analyses these regulatory developments alongside a broader analysis of self-regulation in the charity sector. This paper argues that while self-reliance and self-regulation offer opportunities to the charity sector to create nuanced, sector-sensitive regulation, they could also compromise the credibility and quality of charity regulation. This paper further argues that the charity sector needs to address as a matter of priority the drivers for regulatory reform, the purposes and priority of charity regulation, and the shift in the balance of power that results.