General Principles of Constitutional and Administrative Law Fourth Edition John Alder
General Principles of Constitutional and Administrative Law
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General Principles of Constitutional and Administrative Law, Fourth EditionFourth Edition
John Alder
Palgrave Macmillan Law Masters
Series Editor Marise Cremona
LAW (4th edn)
LAND LAW (4th edn)
LANDLORD AND TENANT LAW (4th edn)
Jo Shaw
Catherine Rendell
TORTS (3rd edn)
General Principles of
John Alder Professor of Law, University of Newcastle upon Tyne
With contributions from
Law series editor:
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 PALGRAVEMACMILLAN 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.
10 9 8 7 6 5 4 3 2 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
Preface xi
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
Contents
v
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
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
vi Contents
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
10.1 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
Contents vii
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
viii Contents
15.1 Introduction 344 15.2 Police Organisation and Control 344
15.3 Police Accountability 349 15.4 The Armed Forces 355
Summary 357
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
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
Contents ix
19.4 Public Order: Demonstrations and Meetings 474 19.5 Justices’ Powers of Prior Restraint 484
Summary 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
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 Police Searches during the Investigation of Crime 534 21.8 ‘In the Station’: an Outline 543
Summary 544
22 State Secrecy 547
22.1 Voluntary Disclosure of Information 549 22.2 Statutory Rights to Information 550 22.3 The Freedom of Information Act 2000 551
22.4 Unlawful Disclosure of Government Information 555 22.5 Public Interest Immunity 561 22.6 Security and Covert Intelligence 564
Summary 571 Further Reading 572 Exercises 572
Bibliography 574
Index 592
x Contents
The aims of this edition remain the same as those of previous editions: namely, to explain and discuss critically the general principles of the constitutional law and administrative law of the UK and to identify their historical and
political foundations. This edition has been recast and substantially rewritten and expanded in order to take account of major changes in the law, notably the burgeoning case law generated by the Human Rights Act 1998, and to
consider recent scholarship and political developments. I have tried to make the book clearer and easier to use both as an introductory text for law degree students and as a self-contained text for more basic courses. I have also tried to
emphasise difficult and controversial issues. The law and its political foundations are constantly changing. Since the last
edition in late 1999, litigants have begun to exploit the Human Rights Act 1998
in a variety of contexts. These include, for example, immigration, asylum, and prisoners’ rights, the eviction of tenants, pawnbrokers’ rights, access to adop- tion records, victims’ rights, press freedom and euthanasia. The Alconbury case in particular involved the relationship between political decisions taken by a
minister and the rule of law. It is too early to suggest any general tendencies towards a distinctively British human rights jurisprudence. On the one hand, the Strasburg case law seems to have been systematically applied and a moder-
ate approach adopted. On the other hand, significant differences of approach are emerging between individual judges. Other developments have been influenced by the ‘Nolan Principles of Public
Life’ which have pervaded several areas of law, including bringing political parties within a legal regime. There have also been changes in electoral law and developments in the law of judicial review, notably in relation to the doctrines of ‘unreasonableness’ and legitimate expectations and the bias rule. There has
also been important new literature including extra-judicial writings from senior judges and dealing with the influence of the common law on the constitution. Other developments have been disappointing. The long-awaited reform
of the House of Lords is unfinished business and the Wakeham Report raises concerns about the dangers to democracy of a legislative chamber which in- cludes persons hand-picked by those already in positions of power. There have
been limited reforms in local government law which have to some extent strengthened local democracy although, characteristically the centre retains comprehensive powers. There have been a desultory Freedom of Informa-
tion Act 2000, and increased state powers in relation to official surveillance, police investigations and public order. Some of these were a response to the terrorist attack on the World Trade Centre on 11 September 2001 but go well beyond terrorism.
Preface
xi
The main standpoint of the book is that constitutional law pre-eminently concerns the management of disagreement about the exercise of power. As Holmes J remarked, ‘the Constitution is made for people of fundamentally
different views’ (Lochner v. New York (1905), 19 US 45 at 767). Hence, in a democracy, the task of constitutional law is to provide mechanisms that prevent one set of values from being permanently dominant while at the same
time trying to keep order and to adjudicate fairly between competing pre- tenders to power. Part I has been substantially rearranged and discusses fundamental prin-
ciples and concepts, including revised treatment of the rule of law to reflect
developments in scholarship. In particular the introductory chapters have been recast. I have also attempted to provide an overview of the history, structure and main concepts of the UK constitution in the hope that this will signpost
later chapters. Part II is new, in which I have brought together topics relating to the geographical separation of powers, namely, devolution, local govern- ment and the European Union. Part III discusses the main institutions of gov-
ernment, namely Parliament, the Crown, ministers, the civil service, the armed forces and police. Part IV concerns the citizen and the state, and includes an expanded treatment of judicial review of administrative action and human rights together with a more detailed discussion of freedom of expression, police
powers and state secrecy. However the increasing legislation relating to public order, terrorism, immigration and state surveillance have made detailed treat- ment of particular civil liberties unrealistic as part of a general constitutional
law course. For this reason I have concentrated in this edition upon gen- eral constitutional principles The case law is, as far as possible up to date to 10 April 2002.
I am grateful to many people who directly and indirectly helped me to produce this edition. These include, pre-eminently, Michael Haley of Keele University who prepared Chapter 21, Barry Hough of Southampton Institute
who made substantial contributions to Chapters 3, 13 and 14 and Richard Mullender of Newcastle Law School who prepared Chapter 20. I am also indebted to Rui Verde of the Universidade Independente Lisbon who critiqued several chapters and made invaluable suggestions and to Ann Sinclair of
Newcastle Law School who revised the bibliography. I am of course wholly responsible for the mistakes that remain.
JOHN ALDER
xii Preface
A v. B plc and Another, The Times, November 2 2001 443, 506 A v. Sunday People, [2002] Independent, 28 March 506 A v. U.K. (1998) 27 E.H.R.R. 611 443 A (Re) (children) (conjoined twins: surgical separation ) [2000] 4 All ER 961 22
Abdulaziz v. U.K. [1985] 7 E.H.R.R 471 431, 453 Abrams v. United States [1919] 250 U.S. 616, 346 Adam v. Ward [1917] AC 309 355, 491, 499 Adan v. Newham BC [2002] 1 All ER 931 373, 396,430,436 Adegbeno v. Akintola [1963] AC 614 295 A-G for Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 378 A-G for New South Wales v. Perpetual Trustee Co. Ltd [1955] 1 All ER 846 345
A-G for New South Wales v. Trethowan [1932] AC 526 133 A-G for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 432 A-G of Trinidad and Tobago v. Phillips [1995] 1 All ER 93 244 A-G v. Associated Newspapers Ltd. [1994] AC 238 425 A-G v. BBC [1981] AC 303 117 A-G v. Blake [1998] 1 All ER 833 559 A-G v. Crayford UDC [1962] Ch 575 370 A-G v. De Keyser’s Royal Hotel Ltd [1920] AC 508 305, 306, 308 A-G v. de Winton [1906] 2 Ch 1060 135 A-G v. English [1983] 1 AC 116 466 A-G v. Fulham Corporation [1921] 1 Ch 440 369 A-G v. Guardian Newspapers Ltd (No. 2) [1988] 3 All ER 545 425, 458, 502, 558
A-G v. Guardian Newspapers Ltd [1987] 1 WLR 1048 117, 369, 446, 466, 558
A-G v. Jonathan Cape [1975] 3 All ER 489 56, 320, 559 A-G v. Leveller Magazine Ltd [1979] AC 400 468 A-G v. News Group Newspapers [1987] AC 40 467 A-G v. News Group Newspapers [1988] 2 All ER 906 467 A-G v. Observer Ltd [1988] 1 All ER 385 466 A-G v. Punch Ltd [2001] 2 All ER 655 560 A-G v. Sport Newspapers Ltd [1992] 1 All ER 503 467 A-G v. Times Newspapers Ltd [1974] AC 273 466 A-G v. Times Newspapers Ltd [1991] 2 All ER 398 466, 560 A-G v. Times Newspapers [2001] E.W.C.A. Civ. 97 560 A-G v. Wilts United Dairies [1921] 37 TLR 884 301 Air Canada v. Secretary of State for Trade [1983] 2 AC 394 562, 563 Airdale N.H.S. Health Trust v. Bland [1993] 1 All ER 821 21 Airey v. Ireland (1979) 2 E.H.R.R 305 9, 446 Albert v. Lavin [1982] AC 546 527
Table of Cases
xiii
Alconbury Developments v. Secretary of State for the Environment Transport and the Regions, see R. (Alconbury) v. Secretary of State
Alfred Crompton v. Customs and Excise [1974] AC 533 563 Amphitrite Case [1921] 3 KB 500 297 American Cynamid Co v. Ethicon Ltd [1975] AC 396 467 Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 137, 369, 371–372, 415
Arrowsmith v. Jenkins [1963] 2 QB 561 476 Ashby v. White [1703] 2 Ld Raym 938 223, 231 Ashworth Hospital v. MGN Ltd [2001] 1 All ER 991 561 Askoy v. Turkey [1996] 23 E.H.R.R 553 432 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 382
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank [2001] 3 All ER 393 431, 432
Auckland Harbour Board v. R [1924] AC 318 275 Ayr Harbour Trustees v. Oswald [1883] 8 App Case 623 377 B v. France (1992) ECHR Ser. A vol. 232-C 328 Baker v. Carr 369 U.S. 186 [1962] 306 Baker v. Oxford [1980] RTR 315 521 Bank Voor Handel en Scheepvaart NV. v. Administrator of Hungarian Property [1954] AC 584 58
Barnard v. National Dock Labour Board [1953] 1 All ER 1113 387 Barrett v. Enfield Borough Council [1999] 3 All ER 193 203, 405 Bates Case [1606] 2 St. Tr. 372 300 Bath Society v. Secretary of State for the Environment [1992] 1 All ER 28 300
BBC v. Johns [1965] Ch 32 301 Beach v. Freeson [1972] 1 QB 14 226 Beatty v. Gillbanks [1882] 9 QBD 308 479-480 Bentham v. Netherlands [1985] 8 E.H.R.R. 1 363, 392, 428, 446 Berkeley v. Secretary of State for the Environment [2000] 3 All ER 897 14, 387
Berman v. Parker 348 U.S. 26 (1954). Bilston Corporation v. Wolverhampton Corporation [1942] Ch. 391 222 Blackburn v. A-G [1971] 2 All ER 1380 130, 305, 306 Blackpool Corporation v. Locker [1948] 1 All ER 85 434 Blackshaw v. Lord [1984] QB 1 500 Boddington v. British Transport Police [1998] 2 WLR 639 104, 365,
367, 413 Bogner Regis U.D.C. v. Campion [1972] 2 All ER 61 493 Bonnard v. Perryman 1891B4 All ER Rep 965 492 Borgers v. Belgium (1991) ECHR Ser. A 214-B 562 Bozkurt (see R. (Bozkurt)) Bowles v. Bank of England [1913] 1 Ch 57 126, 223, 276 Bowman v. Secular Society [1917] AC 406 471 Bowman v. UK (1998) 26 E.H.R.R 1 258 Bradlaugh v. Gossett (1884) 12 QBD 271 223 Brandenberg v. Ohio 395 U.S. [1969] 464, 475
xiv Table of Cases
Branningan and McBride v. U.K. [1994] 17 E.H.R.R 539 432, 566 Bribery Commissioner v. Ranasinghe [1965] AC 172 133 Brind v. Secretary of State for the Home Department [1991] 1 AC 696 117, 382, 386, 425, 474
British Coal Corporation v. R [1935] AC 500 12, 306 British Oxygen Co. v. Minister of Technology [1971] AC 610 377 British Steel v. Granada TV [1981] AC 1096 13, 372 Brogan v. U.K. [1989] 11 E.H.R.R 117 446, 451, 566 Bromley London Borough Council v. GLC [1983] 1 AC 768 13, 176, 277,
369, 376, 377 Brown Case HC Deb 15 July 1947 Col. 284 228 Brown v. Board of Education 347 U.S. 483 (1955) 42 Brown v. Stott (Procurator Fiscal Dunfermline) [2001] 2 All ER 97
391, 429, 447, 453, 519, 563 Brownlow, see R v. Crown Court at Sheffield Brunner v. European Union Treaty [1994] 1 CLR 57 195 Brunyate v. ILEA [1989] 2 All ER 417 173 Brutus v. Cozens [1973] AC 854 482 Bryan v. U.K. (1995) 21 E.H.R.R. 342 370, 373, 396 Buchanan v. Babco [1977] 3 All ER 1048 117 Buckley v. Valeo 424 US 1 [1976] 313 258 Buckley v. United Kingdom (1996) 1 E.H.R.R. 101 449…
John Alder
Palgrave Macmillan Law Masters
Series Editor Marise Cremona
LAW (4th edn)
LAND LAW (4th edn)
LANDLORD AND TENANT LAW (4th edn)
Jo Shaw
Catherine Rendell
TORTS (3rd edn)
General Principles of
John Alder Professor of Law, University of Newcastle upon Tyne
With contributions from
Law series editor:
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 PALGRAVEMACMILLAN 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.
10 9 8 7 6 5 4 3 2 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
Preface xi
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
Contents
v
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
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
vi Contents
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
10.1 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
Contents vii
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
viii Contents
15.1 Introduction 344 15.2 Police Organisation and Control 344
15.3 Police Accountability 349 15.4 The Armed Forces 355
Summary 357
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
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
Contents ix
19.4 Public Order: Demonstrations and Meetings 474 19.5 Justices’ Powers of Prior Restraint 484
Summary 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
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 Police Searches during the Investigation of Crime 534 21.8 ‘In the Station’: an Outline 543
Summary 544
22 State Secrecy 547
22.1 Voluntary Disclosure of Information 549 22.2 Statutory Rights to Information 550 22.3 The Freedom of Information Act 2000 551
22.4 Unlawful Disclosure of Government Information 555 22.5 Public Interest Immunity 561 22.6 Security and Covert Intelligence 564
Summary 571 Further Reading 572 Exercises 572
Bibliography 574
Index 592
x Contents
The aims of this edition remain the same as those of previous editions: namely, to explain and discuss critically the general principles of the constitutional law and administrative law of the UK and to identify their historical and
political foundations. This edition has been recast and substantially rewritten and expanded in order to take account of major changes in the law, notably the burgeoning case law generated by the Human Rights Act 1998, and to
consider recent scholarship and political developments. I have tried to make the book clearer and easier to use both as an introductory text for law degree students and as a self-contained text for more basic courses. I have also tried to
emphasise difficult and controversial issues. The law and its political foundations are constantly changing. Since the last
edition in late 1999, litigants have begun to exploit the Human Rights Act 1998
in a variety of contexts. These include, for example, immigration, asylum, and prisoners’ rights, the eviction of tenants, pawnbrokers’ rights, access to adop- tion records, victims’ rights, press freedom and euthanasia. The Alconbury case in particular involved the relationship between political decisions taken by a
minister and the rule of law. It is too early to suggest any general tendencies towards a distinctively British human rights jurisprudence. On the one hand, the Strasburg case law seems to have been systematically applied and a moder-
ate approach adopted. On the other hand, significant differences of approach are emerging between individual judges. Other developments have been influenced by the ‘Nolan Principles of Public
Life’ which have pervaded several areas of law, including bringing political parties within a legal regime. There have also been changes in electoral law and developments in the law of judicial review, notably in relation to the doctrines of ‘unreasonableness’ and legitimate expectations and the bias rule. There has
also been important new literature including extra-judicial writings from senior judges and dealing with the influence of the common law on the constitution. Other developments have been disappointing. The long-awaited reform
of the House of Lords is unfinished business and the Wakeham Report raises concerns about the dangers to democracy of a legislative chamber which in- cludes persons hand-picked by those already in positions of power. There have
been limited reforms in local government law which have to some extent strengthened local democracy although, characteristically the centre retains comprehensive powers. There have been a desultory Freedom of Informa-
tion Act 2000, and increased state powers in relation to official surveillance, police investigations and public order. Some of these were a response to the terrorist attack on the World Trade Centre on 11 September 2001 but go well beyond terrorism.
Preface
xi
The main standpoint of the book is that constitutional law pre-eminently concerns the management of disagreement about the exercise of power. As Holmes J remarked, ‘the Constitution is made for people of fundamentally
different views’ (Lochner v. New York (1905), 19 US 45 at 767). Hence, in a democracy, the task of constitutional law is to provide mechanisms that prevent one set of values from being permanently dominant while at the same
time trying to keep order and to adjudicate fairly between competing pre- tenders to power. Part I has been substantially rearranged and discusses fundamental prin-
ciples and concepts, including revised treatment of the rule of law to reflect
developments in scholarship. In particular the introductory chapters have been recast. I have also attempted to provide an overview of the history, structure and main concepts of the UK constitution in the hope that this will signpost
later chapters. Part II is new, in which I have brought together topics relating to the geographical separation of powers, namely, devolution, local govern- ment and the European Union. Part III discusses the main institutions of gov-
ernment, namely Parliament, the Crown, ministers, the civil service, the armed forces and police. Part IV concerns the citizen and the state, and includes an expanded treatment of judicial review of administrative action and human rights together with a more detailed discussion of freedom of expression, police
powers and state secrecy. However the increasing legislation relating to public order, terrorism, immigration and state surveillance have made detailed treat- ment of particular civil liberties unrealistic as part of a general constitutional
law course. For this reason I have concentrated in this edition upon gen- eral constitutional principles The case law is, as far as possible up to date to 10 April 2002.
I am grateful to many people who directly and indirectly helped me to produce this edition. These include, pre-eminently, Michael Haley of Keele University who prepared Chapter 21, Barry Hough of Southampton Institute
who made substantial contributions to Chapters 3, 13 and 14 and Richard Mullender of Newcastle Law School who prepared Chapter 20. I am also indebted to Rui Verde of the Universidade Independente Lisbon who critiqued several chapters and made invaluable suggestions and to Ann Sinclair of
Newcastle Law School who revised the bibliography. I am of course wholly responsible for the mistakes that remain.
JOHN ALDER
xii Preface
A v. B plc and Another, The Times, November 2 2001 443, 506 A v. Sunday People, [2002] Independent, 28 March 506 A v. U.K. (1998) 27 E.H.R.R. 611 443 A (Re) (children) (conjoined twins: surgical separation ) [2000] 4 All ER 961 22
Abdulaziz v. U.K. [1985] 7 E.H.R.R 471 431, 453 Abrams v. United States [1919] 250 U.S. 616, 346 Adam v. Ward [1917] AC 309 355, 491, 499 Adan v. Newham BC [2002] 1 All ER 931 373, 396,430,436 Adegbeno v. Akintola [1963] AC 614 295 A-G for Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 378 A-G for New South Wales v. Perpetual Trustee Co. Ltd [1955] 1 All ER 846 345
A-G for New South Wales v. Trethowan [1932] AC 526 133 A-G for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 432 A-G of Trinidad and Tobago v. Phillips [1995] 1 All ER 93 244 A-G v. Associated Newspapers Ltd. [1994] AC 238 425 A-G v. BBC [1981] AC 303 117 A-G v. Blake [1998] 1 All ER 833 559 A-G v. Crayford UDC [1962] Ch 575 370 A-G v. De Keyser’s Royal Hotel Ltd [1920] AC 508 305, 306, 308 A-G v. de Winton [1906] 2 Ch 1060 135 A-G v. English [1983] 1 AC 116 466 A-G v. Fulham Corporation [1921] 1 Ch 440 369 A-G v. Guardian Newspapers Ltd (No. 2) [1988] 3 All ER 545 425, 458, 502, 558
A-G v. Guardian Newspapers Ltd [1987] 1 WLR 1048 117, 369, 446, 466, 558
A-G v. Jonathan Cape [1975] 3 All ER 489 56, 320, 559 A-G v. Leveller Magazine Ltd [1979] AC 400 468 A-G v. News Group Newspapers [1987] AC 40 467 A-G v. News Group Newspapers [1988] 2 All ER 906 467 A-G v. Observer Ltd [1988] 1 All ER 385 466 A-G v. Punch Ltd [2001] 2 All ER 655 560 A-G v. Sport Newspapers Ltd [1992] 1 All ER 503 467 A-G v. Times Newspapers Ltd [1974] AC 273 466 A-G v. Times Newspapers Ltd [1991] 2 All ER 398 466, 560 A-G v. Times Newspapers [2001] E.W.C.A. Civ. 97 560 A-G v. Wilts United Dairies [1921] 37 TLR 884 301 Air Canada v. Secretary of State for Trade [1983] 2 AC 394 562, 563 Airdale N.H.S. Health Trust v. Bland [1993] 1 All ER 821 21 Airey v. Ireland (1979) 2 E.H.R.R 305 9, 446 Albert v. Lavin [1982] AC 546 527
Table of Cases
xiii
Alconbury Developments v. Secretary of State for the Environment Transport and the Regions, see R. (Alconbury) v. Secretary of State
Alfred Crompton v. Customs and Excise [1974] AC 533 563 Amphitrite Case [1921] 3 KB 500 297 American Cynamid Co v. Ethicon Ltd [1975] AC 396 467 Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 137, 369, 371–372, 415
Arrowsmith v. Jenkins [1963] 2 QB 561 476 Ashby v. White [1703] 2 Ld Raym 938 223, 231 Ashworth Hospital v. MGN Ltd [2001] 1 All ER 991 561 Askoy v. Turkey [1996] 23 E.H.R.R 553 432 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 382
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank [2001] 3 All ER 393 431, 432
Auckland Harbour Board v. R [1924] AC 318 275 Ayr Harbour Trustees v. Oswald [1883] 8 App Case 623 377 B v. France (1992) ECHR Ser. A vol. 232-C 328 Baker v. Carr 369 U.S. 186 [1962] 306 Baker v. Oxford [1980] RTR 315 521 Bank Voor Handel en Scheepvaart NV. v. Administrator of Hungarian Property [1954] AC 584 58
Barnard v. National Dock Labour Board [1953] 1 All ER 1113 387 Barrett v. Enfield Borough Council [1999] 3 All ER 193 203, 405 Bates Case [1606] 2 St. Tr. 372 300 Bath Society v. Secretary of State for the Environment [1992] 1 All ER 28 300
BBC v. Johns [1965] Ch 32 301 Beach v. Freeson [1972] 1 QB 14 226 Beatty v. Gillbanks [1882] 9 QBD 308 479-480 Bentham v. Netherlands [1985] 8 E.H.R.R. 1 363, 392, 428, 446 Berkeley v. Secretary of State for the Environment [2000] 3 All ER 897 14, 387
Berman v. Parker 348 U.S. 26 (1954). Bilston Corporation v. Wolverhampton Corporation [1942] Ch. 391 222 Blackburn v. A-G [1971] 2 All ER 1380 130, 305, 306 Blackpool Corporation v. Locker [1948] 1 All ER 85 434 Blackshaw v. Lord [1984] QB 1 500 Boddington v. British Transport Police [1998] 2 WLR 639 104, 365,
367, 413 Bogner Regis U.D.C. v. Campion [1972] 2 All ER 61 493 Bonnard v. Perryman 1891B4 All ER Rep 965 492 Borgers v. Belgium (1991) ECHR Ser. A 214-B 562 Bozkurt (see R. (Bozkurt)) Bowles v. Bank of England [1913] 1 Ch 57 126, 223, 276 Bowman v. Secular Society [1917] AC 406 471 Bowman v. UK (1998) 26 E.H.R.R 1 258 Bradlaugh v. Gossett (1884) 12 QBD 271 223 Brandenberg v. Ohio 395 U.S. [1969] 464, 475
xiv Table of Cases
Branningan and McBride v. U.K. [1994] 17 E.H.R.R 539 432, 566 Bribery Commissioner v. Ranasinghe [1965] AC 172 133 Brind v. Secretary of State for the Home Department [1991] 1 AC 696 117, 382, 386, 425, 474
British Coal Corporation v. R [1935] AC 500 12, 306 British Oxygen Co. v. Minister of Technology [1971] AC 610 377 British Steel v. Granada TV [1981] AC 1096 13, 372 Brogan v. U.K. [1989] 11 E.H.R.R 117 446, 451, 566 Bromley London Borough Council v. GLC [1983] 1 AC 768 13, 176, 277,
369, 376, 377 Brown Case HC Deb 15 July 1947 Col. 284 228 Brown v. Board of Education 347 U.S. 483 (1955) 42 Brown v. Stott (Procurator Fiscal Dunfermline) [2001] 2 All ER 97
391, 429, 447, 453, 519, 563 Brownlow, see R v. Crown Court at Sheffield Brunner v. European Union Treaty [1994] 1 CLR 57 195 Brunyate v. ILEA [1989] 2 All ER 417 173 Brutus v. Cozens [1973] AC 854 482 Bryan v. U.K. (1995) 21 E.H.R.R. 342 370, 373, 396 Buchanan v. Babco [1977] 3 All ER 1048 117 Buckley v. Valeo 424 US 1 [1976] 313 258 Buckley v. United Kingdom (1996) 1 E.H.R.R. 101 449…
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