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Principles of Public Law

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Principles of Public Law Principles of Public Law CP Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES Professor Paul Dobson Visiting Professor at Anglia Polytechnic University Professor Nigel Gravells Professor of English Law, Nottingham University Professor Phillip Kenny Professor and Head of the Law School, Northumbria University Professor Richard Kidner Professor at the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. Principles of Public Law Andrew Le Sueur, LLB, Barrister Reader in Laws, University College London Javan Herberg, LLB, BCL, Barrister Practising Barrister, Blackstone Chambers Rosalind English, LLM, MA, Barrister CP Cavendish Publishing Limited London • Sydney Second edition first published 1999 by Cavendish Publishing Limited, The Glass House, Wharton Street, London, WC1X 9PX, United Kingdom Telephone: +44 (0) 20 7278 8000 Facsimile: +44 (0) 20 7278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com This title was previously published as Constitutional and Administrative Law under the Lecture Notes series. © Le Sueur, A, Herberg, J and English, R 1999 First edition 1995 Second edition 1999 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. Le Sueur, AP Principles of public law – 2nd ed – (Principles series) 1 Public Law – Great Britain 2 Great Britain – Constitutional law I Title II Herberg, JW III English, R 342.4'1 ISBN 1 85941 381 1 Printed and bound in Great Britain PREFACE This book has been written for law students. Its purpose is to introduce the UK’s changing constitutional system and some of the underlying debates about how modern societies should organise themselves. Part A In Chapters 1 to 5, we examine what ‘principles’ motivate people in their attempts to change the way we are governed (or keep it the same). It is the ideals of liberal democracy which today provide the basis for most discussion about what the constitution is or should be. For us, modern liberal democracy has three main features: (a) respect for people’s autonomy from State authorities; (b) people’s participation in collective decision making, primarily by electing representatives at regular multi-party elections; and (c) the responsibility of the State to provide for people’s welfare and security. We examine when and why these characteristics emerged, what modern day politicians have to say about them and what contribution legal textbook writers have made to our understanding of them. Part B In the UK, we have no strong sense of ‘the State’. Instead, we have a conglomeration of institutions and officeholders which carry out the tasks of government. Chapters 6 to 8 look at just some of them, focusing on the UK Parliament (and its diminishing importance as the place for robust debate about how we organise ourselves), on the European Union (and its increasing powers and continuing ‘democratic deficit’) and on administrative bodies such as central government departments, executive agencies and local authorities. Part C Part C (Chapters 9 to 18) looks at some of the processes for resolving disputes between State authorities and people, and between State authorities themselves. Since the 1960s, a range grievance redressing institutions, colloquially known as ‘ombudsmen’, have been established to investigate and make recommendations about instances of maladministration alleged to have caused injustice (Chapter 10). The main focus of this part of the book is, however, on the role of courts. Over the past decade, judicial review of administrative action has assumed a greater significance in the constitutional system – not only as a practical method by which people can seek to challenge the legality of government action, but also as a set of judge developed v Principles of Public Law principles which operate as a constraint on public authorities (Chapters 11 to 17). European Community law also provides a basis for challenge to government (Chapter 18). Part D The search for constitutional principle has been clearest in the development of ‘human rights’. For several years, British judges have sometimes used the language of ‘human rights’ in their judgments. With the enactment of the Human Rights Act 1998, the main provisions of which are to brought into force in October 2000, British courts will be required to consider the provisions of the European Convention on Human Rights in making their decisions (Chapter 19). The final chapters of the book (Chapters 20 to 27) provide an explanation and assessment of some of the main human rights: the right to life; liberty of the person; non-retrospectivity of law; respect for privacy; freedom of expression; freedom of assembly and association; equality; and freedom of movement. This book grew out of a short text in the Lecture Notes series by Andrew Le Sueur and Javan Herberg: Constitutional and Administrative Law (1995, London: Cavendish Publishing). Although some material from that edition remains, this book is essentially a new one. In the preface to the 1995 book, we acknowledged contributions by Susan Hall to the chapter on ombudsmen and Lucan Herberg to the chapter on the ground of bias in judicial review. Le Sueur and Herberg have been joined for this new edition by Rosalind English, who wrote Chapter 8, revised Chapter 10 (ombudsmen) and wrote Chapters 20 to 27. Le Sueur wrote Chapters 1 to 7 and 17 to 19. Herberg wrote Chapters 11 to 16. The opinions expressed by each author are not necessarily shared by the others. The law is stated as at May 1999, although it has been possible to incorporate a few later developments at proof stage. The Northern Ireland Act 1998, which provides the framework for devolved government in that part of the UK, has not yet been implemented; at the time of writing, its future remains in doubt. Andrew Le Sueur Javan Herberg Rosalind English September 1999 vi CONTENTS Preface v Table of Cases xxv Table of Statutes xli Table of International and European Legislation xlvii PART A SEARCHING FOR PRINCIPLES 1 PRINCIPLES IN PUBLIC LAW 3 1.1 ASK YOURSELF THIS ... 3 1.2 HOW WE ORGANISE OURSELVES 3 1.3 THE SCOPE OF PUBLIC LAW 4 1.4 WHAT ARE PRINCIPLES? 5 1.4.1 Principles and reason 6 1.5 PRINCIPLES AND LEGAL RULES 7 1.6 THE CHARACTERISTICS OF LIBERAL DEMOCRACY 8 1.6.1 Autonomy 8 1.6.2 Popular participation 11 1.6.3 Securing safety and welfare 12 1.6.4 The future of liberal democracy: consensus or crisis? 13 1.7 CONSTITUTIONS IN LIBERAL DEMOCRACIES 15 1.7.1 Autonomy and constitutions 16 1.7.2 Democracy and the constitution 17 1.7.3 Safety and security from the constitution 19 1.7.4 Mediating tensions between constitutional goals 20 SUMMARY OF CHAPTER 1 23 2 THE NEW CONSTITUTIONAL SETTLEMENT 25 2.1 INTRODUCTION 25 2.2 ALLOCATING DECISION MAKING POWERS 25 2.3 ALLOCATION OF COMPETENCES BETWEEN THE EC AND THE UK 27 2.4 ALLOCATION OF COMPETENCES WITHIN THE UK 30 2.4.1 Difficulties in mapping out competences within the UK 30 vii Principles of Public Law 2.4.2 The UK Parliament 31 2.4.3 Government of the UK 32 2.5 SCOTLAND 34 2.5.1 The competence of the Scottish Parliament 34 2.5.2 The Scottish Administration 36 2.6 NORTHERN IRELAND 37 2.6.1 The Northern Ireland Assembly 37 2.6.2 Northern Ireland executive bodies 38 2.6.3 The North-South Ministerial Council 39 2.7 WALES 39 2.8 ‘INTERGOVERNMENTAL RELATIONS’ WITHIN THE UK 40 2.8.1 Self-scrutiny of Bills before introduction 41 2.8.2 The roles of the Secretaries of State for Scotland, Northern Ireland and Wales 41 2.8.3 Concordats 41 2.8.4 Adjudication by the Privy Council and other courts 42 2.9 LOCAL GOVERNANCE 43 2.9.1 Local authorities 43 2.9.2 The police 44 2.10 THE JUDICIARY 44 2.11 CONSTITUTIONAL MONARCHY 47 2.12 GLOBALISATION: THE WORLD OUTSIDE THE UK 48 2.12.1 Treaties and international organisations 49 SUMMARY OF CHAPTER 2 53 3 PRINCIPLES FROM HISTORY 55 3.1 THE IMPORTANCE OF HISTORY 55 3.1.1 The need for caution 56 3.1.2 Principle and pragmatism 56 3.2 THE NORMAN CONQUEST AND FEUDALISM 57 3.3 MAGNA CARTA 1215 58 3.4 THE 15TH CENTURY: THE WARS OF THE ROSES AND THE LOSS OF FRANCE 59 viii Contents 3.5 THE 16TH CENTURY AND THE PROTESTANT REFORMATION 59 3.6 THE 17TH CENTURY: THE CIVIL WAR, THE RESTORATION AND THE GLORIOUS REVOLUTION 60 3.6.1 Conflicts in Parliament and the courts 60 3.6.2 The outbreak of the Civil War 63 3.6.3 The Commonwealth under Cromwell 63 3.6.4 The Restoration of the monarchy 64 3.6.5 A papist king for a Protestant State? 65 3.6.6 The Glorious Revolution 65 3.7 THE 18TH CENTURY AND THE ENLIGHTENMENT 67 3.7.1 Rationality and radicalism 67 3.7.2 Revolution in America and France 68 3.8 THE 19TH CENTURY 69 3.8.1 The creation of the UK 69 3.8.2 The Industrial Revolution 70 3.8.3 Extending the franchise 70 3.8.4 The administrative revolution 71 3.9
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