General Principles of Constitutional and Administrative Law, Fourth Edition

General Principles of Constitutional and Administrative Law Fourth Edition John Alder General Principles of Constitutional and Administrative Law Palgrave Macmillan Law Masters Series Editor Marise Cremona Stephen Judge BUSINESS LAW (2nd edn) Janet Dine COMPANY LAW (4th edn) John Alder GENERAL PRINCIPLES OF CONSTITUTIONAL AND ADMINISTRATIVE LAW (4th edn) Ewan McKendrick CONTRACT LAW (4th edn) Priscilla Sarton CONVEYANCING (3rd edn) Jonathan Herring CRIMINAL LAW (3rd edn) Debbie J. Lockton EMPLOYMENT LAW (4th edn) Raymond Emson EVIDENCE Kate Standley FAMILY LAW (3rd edn) David Cowan HOUSING LAW AND POLICY Tina Hart and Linda Fazzani INTELLECTUAL PROPERTY LAW (2nd edn) Kate Green and Joe Cursley LAND LAW (4th edn) Margaret Wilkie and Godfrey Cole LANDLORD AND TENANT LAW (4th edn) Jo Shaw LAW OF THE EUROPEAN UNION (3rd edn) Catherine Rendell LAW OF SUCCESSION Ian McLeod LEGAL METHOD (4th edn) Ian McLeod LEGAL THEORY Robert East SOCIAL SECURITY LAW Alastair Mullis and Ken Oliphant TORTS (3rd edn) General Principles of Constitutional and Administrative Law Fourth Edition John Alder Professor of Law, University of Newcastle upon Tyne With contributions from Michael Haley, Barry Hough, Richard Mullender Law series editor: Marise Cremona Professor of European Commercial Law, Centre for Commercial Law Studies, Queen Mary, University of London & John Alder, 1989, 1994, 1999, 2002 All rights reserved. No. reproduction, copy or transmission of this publication may be made without written permission. No paragraph 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, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. Published 2002 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan$ is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–97164–7 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. 1098765432 11 10 09 08 07 06 05 04 03 02 Typeset by Aarontype Limited Easton, Bristol, England Printed and bound in Great Britain by Creative Print & Design (Wales), Ebbw Vale Contents Preface xi Table of Cases xiii Table of Statutes xxxvi Part I FUNDAMENTAL PRINCIPLES 1 The Nature of Constitutional Law 3 1.1 Introduction; What is a Constitution? 3 1.2 Civic Republicanism 8 1.3 Representative Democracy 10 Summary 14 Further Reading 15 Exercises 16 2 Constitutional Values 17 2.1 The Nation State, the Enlightenment and the Social Contract 17 2.2 Incommensurables and Uncombinables 19 2.3 Hobbes: Constrained Individualism 24 2.4 Locke: Liberalism and Majoritarianism 27 2.5 Rousseau: Communitarianism 29 2.6 Hume: A Common Law Approach 32 2.7 Liberalism and Utilitarianism 32 Summary 37 Further Reading 37 Exercises 38 3 The Sources of the Constitution 39 3.1 Written and Unwritten Constitutions 39 3.2 The Common Law Constitution 44 3.3 Conventions (Barry Hough)47 3.4 Law and Convention 54 3.5 Codification of Conventions (Barry Hough)57 3.6 The Dignified and Efficient Constitution 58 Summary 59 Further Reading 61 Exercises 61 v vi Contents 4 The Structure of the UK Government: An Overview 62 4.1 The Informal Constitution 62 4.2 Crown v. Parliament: Historical Outline 64 4.3 The Growth of the Executive 69 4.4 The Concept of the State 70 4.5 The Legislature 74 4.6 The Central Executive 75 4.7 Parliamentary Government 77 4.8 ‘Hollowed-Out’ Government 79 4.9 Ethics in Government 81 4.10 The Judiciary 83 4.11 The Privy Council 84 4.12 Citizenship 85 4.13 Constitutional Reform 88 Summary 89 Further Reading 90 Exercises 91 5 Constitutionalism: The Rule of Law and the Separation of Powers 92 5.1 Introduction: The Nature and Purpose of the Rule of Law 92 5.2 The Core Meaning of the Rule of Law 94 5.3 The Extended Rule of Law 95 5.4 Dicey’s Version of the Rule of Law 97 5.5 The International Rule of Law 101 5.6 Dissent and the Rule of Law 104 5.7 The Separation of Powers 105 Summary 118 Further Reading 119 Exercises 119 6 Parliamentary Supremacy 121 6.1 The Meaning of Parliamentary Supremacy 122 6.2 Historical Development 123 6.3 The Application of Parliamentary Supremacy 125 6.4 The Ingredients of an Act of Parliament 127 6.5 Dividing Parliamentary Supremacy? 129 6.6 Parliamentary Supremacy and the Rule of Law 136 6.7. Conclusion 140 6.8 Note: Delegated Legislation 140 Summary 141 Further Reading 142 Exercises 142 Contents vii Part II THE GEOGRAPHICAL DISTRIBUTION OF POWER 7 Federalism and Devolution 147 7.1 Introduction: Federal and Devolved Government 147 7.2 Scotland 150 7.3 Northern Ireland 154 7.4 Wales 160 7.5 The Channel Islands and the Isle of Man 162 7.6 British Overseas Territories 163 Summary 163 Further Reading 164 Exercises 164 8 Local Government 165 8.1 Local Authority Organisation and Functions 166 8.2 Structure and Powers 168 8.3 Control by Central Government 169 8.4 Internal Constitution 170 8.5 Party Politics 172 8.6 Finance 174 8.7 The Local Ombudsman 177 Summary 179 Further Reading 179 Exercises 180 9 The European Union 181 9.1 The Nature of the European Union 181 9.2 Community Institutions 184 9.3 Democracy and the European Union 192 9.4 Federalism and the European Union 194 9.5 Community Law and National Law 196 Summary 204 Further Reading 205 Exercises 205 Part III GOVERNMENTAL INSTITUTIONS 10 Parliament 209 10.1 Historical Development 209 10.2 The Meeting of Parliament 214 10.3 The Functions of Parliament 215 10.4 Parliamentary Privilege and Standards 220 Summary 232 Further Reading 234 Exercises 234 viii Contents 11 The Composition of Parliament and Parliamentary Elections 236 11.1 The House of Lords 236 11.2 House of Lords Reform 241 11.3 Membership of the House of Commons 243 11.4 The Electoral System 245 11.5 The Conduct of Campaigns 257 11.6 Election Disputes 262 Summary 262 Further Reading 263 Exercises 264 12 Parliamentary Procedure 265 12.1 Introduction 265 12.2 The Speaker 267 12.3 Legislative Procedure 268 12.4 Financial Procedure 275 12.5 Supervision of the Executive 279 12.6 Redress of Grievances 284 Summary 287 Further Reading 288 Exercises 288 13 The Crown 290 13.1 The Nature of the Crown 290 13.2 The Queen 292 13.3 Crown Immunities 296 13.4 The Royal Prerogative 299 Summary 308 Further Reading 309 Exercises 309 14 Ministers and Departments 311 14.1 The Prime Minister 311 14.2 The Cabinet 313 14.3 Ministers 315 14.4 Government Departments 317 14.5 Ministerial Responsibility (Barry Hough) 318 14.6 Civil Servants 329 14.7 Executive Agencies and the ‘New Management’ 334 14.8 Non-Departmental Public Bodies 337 Summary 340 Further Reading 341 Exercises 342 Contents ix 15 The Police and the Armed Forces 344 15.1 Introduction 344 15.2 Police Organisation and Control 344 15.3 Police Accountability 349 15.4 The Armed Forces 355 Summary 357 Further Reading 358 Exercises 358 Part IV THE CITIZEN AND THE STATE 16 Judicial Review of the Executive: The Grounds of Review 363 16.1 Introduction: Constitutional Basis of Judicial Review 363 16.2 Appeal and Review 366 16.3 Classification of the Grounds of Review 368 16.4 Illegality 369 16.5 Irrationality/Unreasonableness 382 16.6 Procedural Impropriety 386 Summary 398 Further Reading 400 Exercises 400 17 Judicial Review Remedies 403 17.1 The Range of Remedies 403 17.2 The Judicial Review Procedure 407 17.3 Choice of Procedure: Public and Private Law 411 17.4 The Exclusion of Judicial Review 414 Summary 416 Further Reading 416 Exercises 417 18 Human Rights and Civil Liberties 419 18.1 Introduction: The Bill of Rights Debate 419 18.2 The Common Law 423 18.3 The European Convention on Human Rights 427 18.4 The Human Rights Act 1998 433 18.5 Restrictions on Protected Rights: Reasoning Methods 444 Summary 454 Further Reading 455 Exercises 456 19 Freedom of Political Expression 458 19.1 Introduction: Justifications for Freedom of Expression (with contribution by Richard Mullender) 458 19.2 The Status of Freedom of Expression 462 19.3 ‘Prior Restraint’ and Censorship 464 x Contents 19.4 Public Order: Demonstrations and Meetings 474 19.5 Justices’ Powers of Prior Restraint 484 Summary 485 Further Reading 485 Exercises 485 20 Freedom of Expression and Competing Private Interests (Richard Mullender) 489 20.1 Introduction 489 20.2 Defamation 490 20.3 Breach of Confidence 502 20.4 Invasion of Privacy 503 20.5 Tensions in the Law 507 20.6 Proportionality: a Mediating Principle 508 20.7 A Hierarchy of Rights and the Contingencies of Litigation 509 Summary 510 Further Reading 510 Exercises 512 21 Police Powers of Arrest and Search (Michael Haley) 513 21.1 Introduction 513 21.2 Violation of PACE and Codes 515 21.3 Pre-Arrest Questioning 519 21.4 Stop and Search 519 21.5 Arrest 526 21.6 Search Before and Following Arrest 532 21.7

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