This introductory chapter explains the need for adopting an overarching perspective to the allocation of limited rights. Although the applicable legal frameworks may suggest otherwise, the awards of public contracts, authorisations, subsidies or government sales share common characteristics in the event that the number of rights available for grant is limited. These similarities are nowhere as manifest as with regard to the question of whether governments should use some form of competitive tendering when allocating these ‘limited rights’. Although the public interests involved in the allocation of these limited rights differ in substance and respective weight, competitive procedures should aim to optimise the pursuit of the different public interests involved. Using Mark Moore’s theory of creating and recognising public value, this chapter provides a general reflection upon the distinct role of the legal framework for allocating governments in solving this optimisation problem.

This chapter starts from the observation that, as far as the competitive allocation of some types of limited rights are concerned (licenses, financial grants), both EU and national legislators have not developed the relevant legal principles into more or less detailed rules yet, contrary to other types of limited rights (public contracts, sale of public assets). The central question this chapter seeks to answer is whether and to what extent these differing approaches can be rationalized. Given that a general theory is lacking, the chapter undertakes a bottom-up explanatory problem analysis of the various arguments that seem relevant for the decision of legislators to develop the principles into more or less detailed rules. The purpose of this analysis is to give a better insight into the contextual application of the various aspects that seem relevant whenever legislators consider and decide where to position the legal framework on the sliding scale between a principle-based only system, on the one hand, and a fully detailed rule-based system on the other.

This chapter addresses the question of how the realization of public interests by competitive tendering is affected by the preceding stage of limitation and the succeeding stage of execution of limited rights. For some types of limited rights, for example authorizations, the public interests involved seem primarily related to the need for limiting the number of these rights (instead of allocating them). By contrast, the award of public contracts focusses more naturally on the allocation stage of competitive tendering. Furthermore, the relationship between the allocation stage and the subsequent execution stage does not seem to be univocal. Whereas the sale of assets seems to depart from the assumption that public interests are satisfied once the assets are transferred, for other limited rights the execution stage seems almost as relevant for the promotion of public interests as the allocation stage itself. This chapter seeks to explain why different outcomes in the relationship between limitation, allocation and execution can be observed across different types of limited rights and to explore whether some common denominator can be identified with regard to this relationship.

This first part of this chapter examines what is meant by the term ‘human rights’ and the role of this concept in twenty-first century public law. The concept of human rights is intended to protect those civil, political, social and economic interests vital to maintaining human autonomy. Human rights law, in its modern guise, came to the forefront of public thought across Europe in the aftermath of the Second World War, an era which produced the European Convention on Human Rights (ECHR). The institutions established by the ECHR and the rights enumerated therein continue to evolve, providing the basis for some of the UK’s commitments in international law. The ECHR regime is designed to provide a framework not only for protecting human rights but, where necessary, for balancing competing rights against each other and against other important societal interests. The concept of human rights therefore provides a basis both for enumerating the most fundamental interests enjoyed by individuals within the UK and for restraining the actions of public authorities which conflict with those interests.