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Constitutional and Administrative Law, Fourth EditionCP London • Sydney
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Cavendish Publishing
CP London • Sydney
Fourth edition first published in Great Britain 2002 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 Email: [email protected] Website: www.cavendishpublishing.com
© Barnett, H 2002 First edition 1995 Second edition 1998 Third edition 2000 Fourth edition 2002
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 Copyrights 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 prior permission in writing of the publisher.
Cataloguing in Publication details for this title are available from the British Library
ISBN 1 85941 721 3
Printed and bound in Great Britain
For Matthew
PREFACE
The United Kingdom’s constitution, while of ancient origins, remains both dynamic and vibrant. As every public lawyer is only too aware, nowadays, the proper boundaries of constitutional and administrative law are both increasingly wide and subject to debate. In compiling any textbook on this subject, one of the principal preliminary tasks lies in defining the scope of material to be included and the approach to be adopted in relation to that material. The task of writing is made more problematic by the many and varied depths in which, and the means by which, the subject is taught both in the United Kingdom and overseas. Full time students; part time students; students on long distance learning programmes such as the University of London’s Programme for External Students and students combining both constitutional and administrative law within a one year course, all have differing needs. The aim in this book has been to provide sufficient detail to meet all such needs in a user-friendly manner.
As emphasised in the introductory chapters, the study of the United Kingdom’s constitutional and administrative law involves rather more than a learning of rules of law, and necessarily encompasses – over and above an understanding of legal rules – an understanding of history, government, politics and conventional practices which form the foundations of the contemporary constitution. As a result, any constitutional and administrative law textbook must incorporate sufficient information relating to such matters so as to enable students to view the constitution in its historical, political and conventional context. In this work, I have addressed the subject in this manner in order to provide a rounded, contextual explanation of the United Kingdom’s constitution, which goes beyond pure law while also adequately covering the law.
As previously, the text is divided into seven main parts. Part I provides a general introduction to the scope of constitutional law, the sources of the constitution and the structure of the United Kingdom. In Part II, the fundamental concepts of the constitution are considered: the rule of law, separation of powers, the royal prerogative and parliamentary sovereignty. In Part III, the European Union and Community is discussed. The material is divided into two chapters. Chapter 8 considers the evolution, aims and structure of the Union and Community and the principal institutions and their respective powers. In Chapter 9, the sources of Community law and the relationship between national and Community law are discussed.
In Part IV, the structure of government is discussed, Chapter 10 considering the role of Prime Minister, Cabinet and the Civil Service, Chapter 11 discussing the concept of responsible government and ministerial responsibility and Chapter 12 the devolution of power to the Northern Ireland Assembly, Scottish Parliament and Welsh Assembly and local government.
Part V is devoted to the United Kingdom Parliament: ‘Westminster’. Chapter 13 discusses the electoral system, Chapter 14 introduces students to
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the House of Commons. Chapters 15 and 16 are devoted to parliamentary procedures for the scrutiny of legislative proposals and scrutiny of government administration. The House of Lords, its role, functions and the current reform proposals are considered in Chapter 17. Parliamentary privilege is discussed in Chapter 18. Notwithstanding the devolution of powers to regional and local government, Westminster remains technically sovereign in its law making powers and central to ensuring the accountability of the United Kingdom government to the electorate. Nevertheless, the impact of devolution and other constitutional reforms – most notably the Human Rights Act 1998 – is considerable, and introduces new restraints on the scope of Parliament’s powers, an issue addressed in Chapter 15 in relation to the legislative competence of Parliament and also Chapter 7 which addresses the concept of sovereignty.
Part VI focuses on the individual and the state. The materials on civil liberties are organised into three separate chapters. The rapidly changing nature of constitutional law presents different challenges for each new edition. Whereas the 1998 edition had to accommodate the government’s substantial reform agenda, the 2000 edition was written against the background of these reforms being largely, if not wholly, complete. With this fourth edition the principal area of focus lies in Chapter 19, with the Human Rights Act 1998, which has made an immediate impact on many areas of domestic law and required the adoption of different techniques of statutory interpretation and the development of the common law. The materials on civil liberties are divided into three chapters. The subject of state security is discussed in Chapter 23.
Part VII introduces administrative law. Judicial review of administrative action comprises two chapters, the first dealing with the role and scope of judicial review and procedural matters; the second analysing the grounds for judicial review. The complementary role, functions and powers of Commissioners for Administration are considered in Chapter 26.
Over the years I have accumulated a debt to many colleagues. My particular thanks in 2002 are to Kenneth Armstrong for his invaluable help with the European Union, and to Ian Yeats for reviewing the chapters on judicial review. As ever, the usual disclaimer applies: any errors remain my sole responsibility. My thanks as ever to Sonny Leong and his team at Cavendish Publishing, with whom as before it has been a pleasure to work. Particular thanks go to Ruth Massey, who edited this edition and showed great patience and skill with the numerous amendments.
As before, I would like to thank all the students, past and present – both at home and, particularly, in the Far East – who, over the years, have deepened my understanding of the difficulties they face in studying such a rich, varied and essentially protean subject as that of the constitution of the United
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Preface
Kingdom. Family and all friends are again owed a large and unquantifiable debt of gratitude, not just for all their support, but also for allowing me the necessary time and solitude in which to update the text.
Hilaire Barnett School of Law
Queen Mary, University of London July 2002
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CONTENTS
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Preface vii Table of Cases xxxv Table of Legislation lxvii Table of International Legislation lxxxv Table of Abbreviations lxxxix
PART I – GENERAL INTRODUCTION
1 INTRODUCTION: THE SCOPE OF CONSTITUTIONAL LAW 3
THE CONCEPT OF CONSTITUTIONALISM 5 WHAT IS A CONSTITUTION? 6 DEFINING CONSTITUTIONS 7 CLASSIFYING CONSTITUTIONS 8
Written and unwritten constitutions 8 Rigid and flexible constitutions 10 Supreme and subordinate constitutions 11 Federal and unitary constitutions 12 Separated powers and fused powers 13 Republican and monarchical constitutions 14
CHARACTERISTICS OF THE UNITED KINGDOM’S CONSTITUTION 15
THE CONSTITUTION IN FLUX 15
2 SOURCES OF THE CONSTITUTION 17
DEFINITIONAL DIFFICULTIES 17 Employment law 18 Pornography 18 Abortion 18
LEGAL SOURCES 19 The Magna Carta 19 The Petition of Right 1628 19 The Bill of Rights 1689 20 The Act of Settlement 1700 22 The Treaty of Union 1706 22 The European Communities Act 1972 22 The royal prerogative 23 Acts establishing devolution 23 The Human Rights Act 1998 23 Further illustrations 24
NON-LEGAL SOURCES OF THE CONSTITUTION 26 Constitutional conventions 26 Authoritative works 42
3 THE EVOLUTION OF THE STRUCTURE OF THE UNITED KINGDOM 43
NORTHERN IRELAND 44 Ireland: the early history – an overview 44 The Act of Union 1800 47 The movement towards Home Rule 47 The Easter Rising 1916 50 Civil War: 1919–22 50 Partition: the Government of Ireland Act 1920 50 The Anglo-Irish Treaty 1921 51 The Constitution of the Irish Free State 1937 52 Self-government in Northern Ireland 1920–72 52 The ‘Troubles’: 1968–98 53 Prorogation of the Northern Ireland Parliament 1972 54 Power sharing 1973 55 Direct rule 1974 55 The Anglo-Irish Agreement 1985 56 The Joint Declaration 1993 57 The 1998 peace settlement 57
SCOTLAND 58 The early history – an overview 59 Devolution to Scotland 62
WALES 62 The early history – an overview 62
THE BRITISH ISLANDS 64 The Channel Islands 64 The Isle of Man 65 The constitutional relationship between the islands and the
United Kingdom 65 THE ISLANDS AND EUROPE 66
The European Community and Union 66 The European Convention on Human Rights 66
LOCAL GOVERNMENT IN ENGLAND AND WALES 66 THE EUROPEAN COMMUNITY AND UNION 67 THE UNITED KINGDOM AND THE COMMONWEALTH 67
From Empire to Commonwealth 67 The Commonwealth today 69 The Commonwealth Secretariat 70 Appeals from Commonwealth courts to the Privy Council 70
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4 THE RULE OF LAW 73
INTRODUCTION 73 CONTRASTING ATTITUDES TO THE RULE OF LAW 74 UNCERTAINTY IN THE WESTERN RULE OF LAW 76 THE RULE OF LAW AS PHILOSOPHICAL DOCTRINE 77
Natural law in ancient Greece and Rome 77 Christian natural law thought 78 Natural law and international law 79 The idea of social contract 79 Natural law and common law 79
THE RULE OF LAW AS POLITICAL THEORY 81 Liberalism, conservatism and the rule of law 81 Marxism and the rule of law 82 Professor Joseph Raz and the rule of law 83 Professor Lon Fuller and the rule of law 84 Friedrich von Hayek and the rule of law 85 John Rawls’s theory of justice and the rule of law 86 ‘Law and order’ and the rule of law: the obligation to obey law 86 AV Dicey and the rule of law 91 Judicial review 95 The legal process 97 Evaluation of Dicey’s ‘equality before the law’ 101 The rule of law in international dimension 102
CONCLUSION 103
HISTORICAL DEVELOPMENT 105 THE CONTEMPORARY DOCTRINE 107 DEFINING THE INSTITUTIONS 107
The executive 107 The legislature 108 The judiciary 108
THE RELATIONSHIP BETWEEN EXECUTIVE AND LEGISLATURE; LEGISLATURE AND JUDICIARY; EXECUTIVE AND JUDICIARY 119 Executive and legislature 119 Legislature and judiciary 123 Executive and judiciary 126
CONCLUSION 133
6 THE ROYAL PREROGATIVE 135
INTRODUCTION 135 THE PREROGATIVE DEFINED 135 THE PREROGATIVE BEFORE 1688 136
The King and parliament 136 The Crown and the Council 137 The King and the courts 139 Regulation of trade and defence of the realm 140 The Crown and taxation 140 Miscellaneous prerogatives 142
THE PREROGATIVE TODAY 143 THE PREROGATIVE ILLUSTRATED 144 THE PREROGATIVE AND DOMESTIC AFFAIRS 145
The dissolution of parliament 145 Circumstances requiring dissolution 154
THE APPOINTMENT OF PRIME MINISTER 155 Appointment of Prime Minister following a general election 155 Appointment of Prime Minister following retirement of
the incumbent 156 THE PREROGATIVE OF MERCY 157
Pardons and commutation of sentence 157 Nolle prosequi 160
POWER TO ESTABLISH NON-STATUTORY AGENCIES 160 THE GRANTING OF HONOURS 161 REGULATION OF THE CIVIL SERVICE64 162 REGULATION OF THE ARMED FORCES 162 IMMUNITIES AND PRIVILEGES OF THE CROWN 162 THE PREROGATIVE AND FOREIGN AFFAIRS 163
Acts of State 163 Issue of passports 164 Treaty making powers 166
JUDICIAL CONTROL OF THE PREROGATIVE 167 Statute and the prerogative 167
POLITICAL CONTROL OF THE PREROGATIVE 172 CONCLUSION 173 REFORM OF THE PREROGATIVE? 174
7 PARLIAMENTARY SOVEREIGNTY 177
Sovereignty as supreme legal authority 177 Sovereignty as supreme political authority 177
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DISTINGUISHING LEGAL AND POLITICAL SOVEREIGNTY 180 LEGAL THEORY AND SOVEREIGNTY 180
John Austin 181 HLA Hart 182 Hans Kelsen 183
THE VALIDITY OF LAW AND THE EFFECTIVENESS OF LAW 183 Ultimate validity and effectiveness: an illustration 185
THE ULTIMATE RULE IS EXTRA-LEGAL 187 SOVEREIGNTY AND WRITTEN CONSTITUTIONS 188 THE SOURCE OF SOVEREIGNTY IN THE UNITED KINGDOM 189 SOVEREIGNTY AS A RULE OF COMMON LAW 190
The origins of parliamentary sovereignty 191 AV DICEY AND SOVEREIGNTY 192
Parliament’s unlimited law making power 192 Acts of Parliament alone are supreme 195 Intrinsic and extrinsic limits on parliament’s power 196 No parliament may be bound by its predecessor or bind
its successor 197 The doctrine of implied repeal 197 Grants of independence 198 The Acts of Union with Scotland 1706/1707 and Ireland 1800 200 Manner and form and redefinition theories 205 No one may question the validity of an Act of Parliament 209
ACADEMIC ARGUMENTS AGAINST THE TRADITIONAL DOCTRINE OF SOVEREIGNTY 211
PARLIAMENTARY SOVEREIGNTY AND THE EUROPEAN UNION AND COMMUNITY 215 The application of Community law 216 Constitutional reform and parliamentary sovereignty 220 The use of referendums 222 The Human Rights Act 1998 222
PART III– THE EUROPEAN COMMUNITY AND UNION
8 STRUCTURE AND INSTITUTIONS 227
INTRODUCTION 227 EVOLUTION OF THE UNION 229
The Single European Act 1986 230 The Treaty on European Union 1992 (Maastricht) 230 Monetary union 233 The Treaty of Amsterdam 233 Closer co-operation 234 Freedom, security and justice 235
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The third pillar as amended: police and judicial co-operation 237 The Union and the citizen 238 Common foreign and security policy 239
THE TREATY OF NICE 2001 240 The United Kingdom and Europe 240
THE EUROPEAN COMMUNITY 241 Aims and objectives 241 The Charter of Fundamental Rights 242
A UNIQUE LEGAL ORDER 242 The major constitutional issues 243 The allocation of functions between Community institutions
and Member States 243 The principle of subsidiarity 244 The application of subsidiarity 245
THE INSTITUTIONS OF THE COMMUNITY 247 The European Commission 247 The Council of the EU (formerly known as the Council
of Ministers) 250 The voting system for decision making 251 The European Parliament 254 The European Council 259 The Court of Auditors 260 The Economic and Social Committee 261 The Committee of the Regions 261 The European Investment Bank 261 The European Court of Justice 261
THE EUROPEAN UNION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS 268
9 EUROPEAN COMMUNITY LAW AND NATIONAL LAW 271
SOURCES OF COMMUNITY LAW 271 DIRECT APPLICABILITY AND DIRECT EFFECT 272
The principles of direct applicability and direct effect 272 Direct effect and Articles of the Treaty 273 Directives and direct effect 274 Vertical and horizontal effect of Community law 275
PUBLIC AND QUASI-PUBLIC BODIES 276 The principle of indirect effect 279 The liability of the state 281
THE INTERACTION BETWEEN NATIONAL COURTS AND THE EUROPEAN COURT OF JUSTICE: ARTICLE 234 OF THE EC TREATY (FORMERLY, ARTICLE 177) 284
THE QUESTION OF LEGAL SUPREMACY 286 The European Court of Justice’s view 286
Contents
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THE RECEPTION OF COMMUNITY LAW INTO THE UNITED KINGDOM 289 The concepts of monism and dualism 289 The European Communities Act 1972 290 The view of the United Kingdom courts 291 Conflicts between Community law and domestic law 292
CONCLUSION 301
10 CENTRAL GOVERNMENT 305
INTRODUCTION 305 THE STRUCTURE OF GOVERNMENT 305 THE CROWN 305
Succession to the Crown 306 The line of succession 306 The Regency Acts 306 The Royal Titles Act 1953 307 The Civil List 307 Taxation and the Sovereign 308 The Crown Estate 308 The role of the Monarch in the United Kingdom’s
constitutional democracy 308 The ‘modernisation’ of the monarchy? 309 The state opening of parliament 309
THE CHANNELS OF COMMUNICATION BETWEEN CROWN AND GOVERNMENT 309 Government papers 309 The weekly prime ministerial audience 310 Privy Council meetings 310
THE PRIVY COUNCIL 310 Historical origins 310 Composition of the Privy Council 312 Meetings of the Privy Council 312
FUNCTIONS OF THE PRIVY COUNCIL 313 Proclamations and Orders in Council 313 Committees of the Privy Council 313
THE OFFICE OF PRIME MINISTER 313 The Prime Minister and membership of the House of Commons 315 The choice of Prime Minister 316
THE FUNCTIONS OF THE PRIME MINISTER 317 Formation of Cabinet 317
THE CABINET 318 Cabinet meetings 319 Timing of dissolution of parliament 319 Appointments 319 The role and functions of Cabinet 320 Cabinet committees 320 The Prime Minister’s Private Office 321 The Cabinet Office 322
THE CIVIL SERVICE 322 THE CHANGING STRUCTURE OF THE CIVIL SERVICE 324
Improving efficiency in the Civil Service 324 The Labour government and the civil service 326
PERMANENCE, POLITICAL NEUTRALITY AND ANONYMITY 327 Permanence 327 Political neutrality 328 Anonymity 329
THE CIVIL SERVICE MANAGEMENT CODE 330 Special advisers 331
THE GOVERNMENT AND THE COURTS 332 Public interest immunity 333 Matrix Churchill and arms to Iraq 337 The change in policy over exports 338 The use of public interest immunity certificates 338
11 RESPONSIBLE GOVERNMENT 341
Agreements to differ 343 Cabinet papers 343 Ministerial memoirs 344
INDIVIDUAL MINISTERIAL RESPONSIBILITY 345 Ministerial responsibility for the department 345 Crichel Down 346 Ministerial responsibility after Crichel Down 347 Evaluating the evidence 349
THE MORALITY OF PUBLIC OFFICE 349 Qualification for ministerial office 349
INDIVIDUAL RESPONSIBILITY FOR PERSONAL CONDUCT 350 Personal conduct 350 Financial probity 351 Premature disclosure of confidential information 353 The Nolan Committee 353 The conduct of ministers of the Crown 354 The Scott Report and ministerial responsibility 355 Sir Richard Scott’s recommendations 357
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The government’s response 357 Vetting of prospective ministers? 358
GOVERNMENT OPENNESS AND GOVERNMENT SECRECY 359 STANDARDS OF PUBLIC SERVICE AND THE OPENNESS
OF GOVERNMENT 360 Access to information 360 The protection of personal data 360 Access to personal data 360 Access to public records 361 The Freedom of Information Act 2000 361 Amendments relating to public records 363 Amendments to the Data Protection Act 1998 363
12 REGIONAL AND LOCAL GOVERNMENT 365
PART I – REGIONAL GOVERNMENT: THE DEVOLUTION OF POWER
NORTHERN IRELAND 365 The status of Northern Ireland 366 The executive 366 Ministerial offices 367 Elections 368 The Assembly 368 Legislation 369 Resolving devolution issues 370 Witnesses and documents 371 Members’ interests 372 Privilege 372 Human rights and equal opportunities 372 North-South Ministerial Council and British-Irish Council 373
SCOTLAND 374 The referendum 374 Devolution and the Treaty of Union 374
THE SCOTTISH PARLIAMENT 375 The meeting of parliament 375 The electoral process 375 Parliamentary proceedings 376 Legislation 377 Members’ interests 379 Parliamentary committees 380 Parliamentary privilege 380 Maladministration 380
THE EXECUTIVE 380 The continuing role of the Secretary of State for Scotland 380 Law Officers 381
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Contents
Scottish representation at Westminster 381 The West Lothian question 381 Possible solutions to the West Lothian question 382 Exclusion of Scottish representation 383 The ‘in and out’ solution 383 Financial arrangements 384 Debating powers 384 Scotland and the European Union and Community 384 The Scottish Parliament and local government and other bodies 385
WALES 385 The referendum 386
THE WELSH ASSEMBLY 386 Meetings of the Assembly 386 The electoral system 386
THE LEADER AND EXECUTIVE COMMITTEE 387 Welsh representation at Westminster 387 The relationship between Westminster and the Assembly 387 The powers of the Welsh Assembly 388 The Committee structure 388 Members’ interests 389 Privilege 389 The continuing role of the Secretary of State for Wales 389 The Assembly and the Welsh economy 389 Financial matters 390 Resolving disputes…