Adam Perry

Unlucky Section 13: Sexual Activity between Children and the Sexual Offences Act 2003

The purpose of section 13 of the Sexual Offences Act 2003 is to protect children from sexual exploitation by other children. To achieve that end, the section prohibits almost all sexual activity between children, and so prohibits mostly innocent, ordinary activity. The government in 2003 trusted that prosecutors would exercise their discretion to trim section 13’s overreach. However, prosecutorial discretion carries its own high costs: it deters conduct beyond section 13’s intended scope, and it undermines the rule of law. Moreover, there was a better alternative, open to the government at the time. Prohibiting only sexual activity between dissimilar aged children would have largely achieved section 13’s purpose without the same need for prosecutorial discretion.

The Flexibility Rule in Administrative Law

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

Mercy and Caprice under the Indian Constitution

ABSTRACT The Indian Constitution gives the executive the power to pardon offenders. The Supreme Court of India has repeatedly held that the executive must not grant or refuse pardons capriciously or arbitrarily. I raise two worries about this line of authority. The executive has its pardon powers in part so that it can show mercy. In one sense, mercy is about doing justice despite what the law requires. Were mercy in this sense shown consistently, it would imperil the rule of law. Caprice is the price of containing that threat. In another sense, mercy is about showing compassion despite what justice requires. Mercy in this sense is an act of grace, and caprice is the price of it being possible at all. By seeking to eliminate caprice, the Court has risked undermining the rule of law, and frustrating one of the aims of the Constitution.

Constitutional Conventions and the Prince of Wales

The Upper Tribunal (Administrative Appeals Chamber) held in Evans v Information Commissioner that certain correspondence between Prince Charles and government officials must be disclosed under freedom of information legislation. Much of the judgment was devoted to a discussion of the constitutional conventions applicable to Prince Charles, and the case provides a useful example of how conventions and laws can interact. In this note, I argue that the Upper Tribunal misunderstood how conventions are distinguished from one another, and misapplied the test for the identification of conventions.