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Constitutional and Administrative Law Palgrave Law Masters Palgrave Law Masters Constitutional and Administrative Law Palgrave Law Masters Company Law Janet Dine and Marios Koutsias Constitutional and Administrative Law John Alder and Keith Syrett Contract Law Ewan McKendrick Criminal Law Jonathan Herring Employment Law Deborah J Lockton Evidence Raymond Emson Family Law Paula Davies and Paven Basuita Intellectual Property Law Tina Hart, Linda Fazzani and Simon Clark Land Law Mark Davys Landlord and Tenant Law Margaret Wilkie, Peter Luxton, Jill Morgan and Godfrey Cole Legal Method Ian McLeod Legal Theory Ian McLeod Medical Law Jo Samanta and Ash Samanta Sports Law Mark James Torts Alastair Mullis, Ken Oliphant and Sandy Steel Trusts Law Charlie Webb and Tim Akkouh If you would like to comment on this book, or on the series generally, please write to [email protected]. Palgrave Law Masters Constitutional and Administrative Law John Alder Emeritus Professor of Law, Newcastle University Keith Syrett Professor of Public Health Law, Cardiff University Eleventh edition © John Alder 1989, 1994, 1999, 2002, 2005, 2007, 2009, 2011, 2013 and 2015 © John Alder and Keith Syrett 2017 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. Crown Copyright material is licensed under the Open Government Licence v3.0. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their right to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. This edition first published 2017 by PALGRAVE Palgrave in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of 4 Crinan Street, London, N1 9XW. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–1–137–60671–6 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. Contents Preface xvi Table of cases xviii Table of legislation xxxviii Part I The framework of the constitution 1 1 Introduction: constitutional structures 3 1.1 The nature of the constitution: general issues 3 1.1.1 Constitutionalism 6 1.2 The foundations of a constitution 6 1.3 Basic constitutional concepts 6 1.4 Written and unwritten constitutions: advantages and disadvantages 8 1.4.1 The merits of a written constitution 8 1.5 The legal and the political constitution 13 1.6 The dignified and efficient constitution: deceiving the people? 15 1.7 Types of constitution 16 1.8 Public and private law 20 1.9 The direction of the constitution: reform 21 Summary 23 Exercises 23 Further reading 24 2 Underlying political traditions 26 2.1 Introduction 26 2.2 Liberalism 26 2.3 Varieties of liberalism in constitutional thought 28 2.3.1 Thomas Hobbes (1588–1679): the impersonal state and individualism 28 2.3.2 John Locke (1632–1704): individual rights and majority government 31 2.3.3 Utilitarianism: David Hume (1711–76), Jeremy Bentham (1748– 1832), John Stuart Mill (1806–73) 32 2.3.4 Market liberalism (neo-liberalism): Friedrich Hayek (1899–1992) 33 2.3.5 Welfare liberalism: John Rawls (1921–2000): liberal justice and equality 35 2.3.6 Liberal pluralism: group liberalism 36 2.4 Freedom 37 2.5 Republicanism 40 2.6 Equality 44 2.7 Communitarianism 45 2.8 Democracy 45 2.8.1 Legal aspects of democracy 47 2.8.2 Representative democracy 48 v vi Contents 2.8.3 Participatory democracy 49 2.8.4 Political parties: market democracy 51 Summary 52 Exercises 53 Further reading 54 3 The sources of the constitution 55 3.1 Introduction 55 3.2 Statute law 55 3.3 The common law 57 3.4 Constitutional conventions 59 3.4.1 The nature of conventions 60 3.4.2 The main conventions 61 3.4.3 Identifying conventions 62 3.4.4 The differences between law and convention: conventions and the courts 63 3.4.5 Why conventions are obeyed 66 3.4.6 Codification of conventions 66 Summary 68 Exercises 68 Further reading 69 4 Historical landmarks 70 4.1 Introduction 70 4.2 The Saxon period: origins of the Crown 71 4.3 The medieval period: the beginning of parliamentary government and the common law; the formation of national identity 71 4.4 The sixteenth century, the Tudor period: the consolidation of the government 74 4.5 The seventeenth-century revolution: the supremacy of Parliament over the Crown 76 4.5.1 The ‘glorious’/‘bloodless’ revolution of 1688: the foundation of the modern constitution 79 4.6 The eighteenth century: the parliamentary system and the rule of law 80 4.6.1 The courts and the rule of law 84 4.7 The nineteenth century: reforms and democracy 85 4.8 The twentieth century: the rise of the executive 88 4.9 The present century: distrust, reforms and an uncertain future 90 Summary 92 Exercises 93 Further reading 93 5 An overview of the main institutions of the constitution 94 5.1 The basic structure of the constitution 94 5.1.1 The state 95 5.2 The legislative branch 96 5.2.1 Political parties 97 5.3 The executive branch 97 5.4 The judicial branch 99 5.4.1 The Supreme Court 100 5.4.2 Other courts 102 5.4.3 Judicial diversity 103 Contents vii 5.5 Local government in England 104 5.6 The police and the prosecution system in England and Wales 106 5.7 The Privy Council 108 5.8 The Church of England 109 5.9 Government standards of behaviour 110 5.10 Constitutional reform 113 Summary 114 Exercises 115 Further reading 116 Part II Fundamental principles 119 6 The rule of law 121 6.1 The nature of the rule of law 121 6.2 Practical application of the rule of law 123 6.3 Different versions of the rule of law 124 6.4 The core rule of law and Dicey’s version of it 126 6.4.1 The core rule of law and freedom 127 6.4.2 Dicey’s version of the rule of law 128 6.4.3 Dicey’s rule of law today 131 6.5 The ‘amplified’ rule of law 132 6.6 The extended (liberal) rule of law: ‘the principle of legality’ 133 6.7 The international rule of law 135 Summary 135 Exercises 136 Further reading 137 7 The separation of powers 138 7.1 Introduction: Montesquieu’s doctrine of the separation of powers 138 7.2 The importance of the separation of powers in the UK 139 7.3 Different kinds of separation of powers 140 7.3.1 The mixed constitution 141 7.4 Judicial independence and accountability 142 7.4.1 Accountability 144 7.5 Separation of function 145 7.5.1 Parliament and the executive 145 7.5.2 Parliament and the judiciary 146 7.5.3 The executive and the judiciary 147 7.6 Separation of personnel 150 7.6.1 Parliament and the executive 150 7.6.2 Parliament and the judiciary 151 7.6.3 The executive and the judiciary 151 7.7 Checks and balances 153 7.7.1 Parliament and the executive 154 7.7.2 Parliament and the judiciary 154 7.7.3 The executive and the judiciary 156 Summary 160 Exercises 161 Further reading 162 viii Contents 8 Parliamentary sovereignty 163 8.1 Introduction 163 8.2 The basis of parliamentary sovereignty 164 8.3 The meaning of ‘Act of Parliament’ 166 8.4 The three facets of parliamentary sovereignty 167 8.4.1 Freedom to make any kind of law 167 8.4.2 Parliament cannot be overridden 168 8.4.3 Parliament cannot bind its successors 168 8.5 Challenging parliamentary sovereignty 169 8.5.1 Grants of independence 169 8.5.2 Scotland and Northern Ireland: Acts of Union – was Parliament born unfree? 170 8.5.3 Redefinition theory: entrenchment 171 8.5.4 European Union law 174 8.5.5 The Human Rights Act 1998 177 8.5.6 The common law/rule of law 177 Summary 180 Exercises 181 Further reading 182 Part III International aspects of the constitution 185 9 The state and the outside world 187 9.1 Introduction: the idea of the state 187 9.2 The UK as a state 188 9.3 Citizenship 189 9.3.1 Removal of citizenship and statelessness 192 9.3.2 Non-citizens 192 9.4 British dependent territories 194 9.4.1 The Channel Islands and the Isle of Man 194 9.4.2 British overseas territories 195 9.5 International law and domestic law 199 9.5.1 Customary law 199 9.5.2 General principle of law 200 9.5.3 Treaties 201 9.5.4 Applying treaties in the courts: incorporated treaties 203 9.5.5 Applying treaties in the courts: unincorporated treaties 203 9.6 Overseas relationships and the courts 205 9.6.1 State immunity 205 9.6.2 Diplomatic immunity 207 9.6.3 Act of state and justiciability 208 9.6.4 International jurisdiction 212 9.7 Removal from the UK 213 9.7.1 Deportation and expulsion 213 9.7.2 Asylum 214 9.7.3 Extradition 215 9.7.4 Human rights restrictions on removal 217 Contents ix Summary 219 Exercises 220 Further reading 222 10 The European Union 223 10.1 Introduction: the nature of the European Union 223 10.2 Institutions 226 10.2.1 The Council of Ministers 227 10.2.2 The European Council 228 10.2.3 The European Commission 228 10.2.4 The European Parliament 230 10.2.5 The Court of Justice of the European Union (CJEU) 231 10.3 EU law and national law 234 10.3.1 Direct effect of
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