Constitutional and Administrative Law

Key Facts and Key Cases

Jamie Grace

• Publisher: Taylor & Francis
• Year: 2015
• Print ISBN: 9781138463394
• eBook ISBN: 9781317646815
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Key Facts Key Cases Constitutional & Administrative Law will ensure you grasp the main concepts of your Constitutional & Administrative Law module with ease. This book explains the facts and associated case law for:

- The European Court of Human Rights and the UK Supreme Court

- Devolution

- Human rights law

- EU membership

- International law in the UK Constitution

Key Facts Key Cases is the essential series for anyone studying law at LLB, postgraduate and conversion courses. The series provides the simplest and most effective way to absorb and retain all of the material essential for passing your exams. Each chapter includes:

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• diagrams at the start of chapters to summarise key points

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• structured headings and numbered points to allow for clear recall of the essential points

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• charts and tables to break down more complex information

Chapters are also supported by a Key Cases section which provides the simplest and most effective way to absorb and memorise essential cases needed for exam success.

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• Essential and leading cases are explained

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• The style, layout and explanations are user friendly

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• Cases are broken down into key components by use of a clear system of symbols for quick and easy visual recognition

Part 1
The development of constitutional and administrative law in the UK

1
Contemporary and foundational issues in public law

1.1 What is a constitution?

1.1.1 A basic definition of a ‘constitution’ would be a body of rules regulating the way in which an organisation or institution operates. However, when the term ‘constitution’ is used in the context of a State’s constitution the definition is a little more complex.

The constitution of a State would be expected to:

• • establish the organs of government. Traditionally, this would consist of a body responsible for legislative functions; a body responsible for executive functions; and a body responsible for judicial functions;
• • allocate power between those institutions;
• • provide for the resolution of disputes on the interpretation of the constitution; and
• • establish procedures etc. for the amendment of the constitution.

1.1.2 The constitution therefore defines the relationship between the various institutions of the State (horizontal relationship) and that between the State and the individual (vertical relationship).

1.1.3 In a narrow sense, a constitution could be defined as a particular document (or series of documents) setting out the framework and principal functions of the organs of government in a particular State. Such a constitution will have, as Wade describes, ‘special legal sanctity’, meaning that it is the highest form of law in the State.

1.1.4 The majority of States have such a constitution, against which all other laws are measured. Should such laws fail to conform to the constitution, they may be declared unconstitutional by the courts.

1.1.5 The United Kingdom does not have a constitution that is the highest form of law since its constitutional principles can be amended by the passing of ordinary legislation – a consequence of the principle known as parliamentary supremacy, or parliamentary sovereignty (discussed in Chapter 3).

1.1.6 For this reason some have argued that the United Kingdom does not have a constitution. However, if we consider the wider definition of a constitution, which would be one that refers to the whole system of government, including all the laws and rules that regulate that government, we can clearly see that the United Kingdom does have a constitution.

1.2 Classifying constitutions

1.2.1 Constitutions can be classified in a number of different ways. We often talk of ‘written’ (codified) or ‘unwritten’ (uncodified) constitutions.

1.2.2 This has been the traditional way of classifying a constitution. In many examples, constitutions are described as being written or unwritten. This is too simplistic an explanation. It is more accurate to describe constitutions as codified or uncodified.

1.2.3 A codified constitution is one where the constitution is enshrined in a single document or series of documents, as, for example, in the United States.

1.2.4 An uncodified constitution is one where the constitutional rules exist, and indeed may be written down in legislation, but there is no one source that can be identified.

1.2.5 The United Kingdom is one of the few major countries in the world not to have a codified constitution. Consequently, the sources of the UK constitution are varied and include, for example, statute, common law and conventions.

1.2.6 In modern constitutional terms the desire to create a codified constitution will often be the result of some significant event, such as, for example:

• • revolution (e.g. France 1789);
• • reconstruction and/or redefinition of a State’s institutions following war/armed conflict (e.g. Germany, Iraq);
• • conferment of independence on a former colony (e.g. India, Australia, Canada);
• • creation of a new State by the union of formerly independent States (e.g. United States, Malaysia);
• • creation of a new State(s) by the break-up of a former Union of States (e.g. States created by the break-up of the former Republic of Yugoslavia).

1.2.7 The United Kingdom has suffered no major historical or political event that has necessitated the creation of a codified constitution. There have nevertheless been significant constitutional events such as, for example:

• • the 1688 Revolution;
• • the Union of England and Scotland (1707) and Great Britain with Ireland (1800);
• • the House of Lords crisis 1910;
• • the abdication of the Monarch 1936; and
• • joining the European Economic Community (now known as the European Union) in 1973.

1.2.8 However, all of these events were responded to or anticipated through parliamentary means; by the passing of ordinary legislation such as, for example:

• • Bill of Rights 1688/9;
• • Parliament Act 1911;
• • Abdication Act 1936; and
• • European Communities Act 1972.

Hence the United Kingdom’s constitution has evolved over time and remains uncodified.

1.2.9 Constitutions can also be classified as ‘rigid’ or ‘flexible’ constitutions. This way of classifying a constitution was first suggested by Lord Bryce in the late 19th century.

• • A flexible constitution is one where all the laws of that constitution may be amended by the ordinary law-making process. The United Kingdom has a flexible constitution.
• • A rigid constitution is one where the laws of that constitution can only be amended by special procedures. Consequently, the constitution is ‘entrenched’. In other words, it is protected from being changed by the need to comply with a special procedure.

1.2.10 F or example, the United States has a rigid constitution that cannot be amended by the passing of an ordinary piece of legislation (an Act of Congress). A special procedure has to be followed, which requires there to be:

• • a two-thirds majority in each House of the Federal Congress (the legislative body), followed by:
• • the acceptance (ratification) of at least three-quarters of the individual states that make up the United States.

A further example: In the Republic of Ireland, a Bill passed by both Houses of Parliament, a majority of votes in a referendum and the assent of the President are required to change the constitution.

1.2.11 A constitution can also be described as a ‘unitary’ or a ‘federal’ constitution. This description rests on the way that law-making bodies or institutions (sometimes known as ‘organs of the state’, ‘state organs’ or simply ‘organs’) are distributed throughout the country as a whole.

• • federal constitution is one where government powers are divided between central (federal) organs and the organs of the individual states/provinces that make up the federation. For example, the United States and Canada have federal constitutions. If there is to be any change in the distribution of power between the federal organs and the state organs, there must be amendment of the constitution using a special procedure.
• • A unitary constitution is one where all government power rests in the hands of one central set of organs.

1.2.12 There are some other ways in which constitutions can be classified. Constitutions can be described as being:

• • Supreme or subordinate – if the legislature cannot change the constitution by itself, then the constitution is supreme. If the legislature can change the constitution by itself, then it is subordinate.
• • Monarchical or republican:
  • (a) In a monarchical constitution, the Head of State is a King or Queen and State powers are exercised in ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• PREFACE
• TABLE OF CASES
• TABLE OF STATUTES
• PART 1 THE DEVELOPMENT OF CONSTITUTIONAL AND ADMINISTRATIVE LAW IN THE UK
• PART 2 PUBLIC LAW IN PRACTICE
• INDEX