Constitutional and Administrative Law

Hilaire Barnett

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000468274
• Edition: 13
• Topic: Law
• Subtopic: Public Law
• Index: Law

Hilaire Barnett's Constitutional& Administrative Law has provided generations of students with reliable, accessible and comprehensive coverage of the Public Law syllabus. Mapped to the common course outline, the Thirteenth Edition equips students with an understanding of the UK constitution's past, present and future by analysing and illustrating the political and socio-historical contextsthat have shaped the major rules and principles of constitutional and administrative law, as well as ongoing constitutional reform.

This edition has been fully updated and includes discussion of the implications of the United Kingdom's potential withdrawal from the European Union on the constitution, including the impact on the legislative supremacy of Parliament and the relationship between EU and domestic law after departure. Developments on the negotiations of the future relationship between the UK and the EU will be discussed in updates to the Companion Website.

Ideal for students studying constitutional and administrative law for the first time, this book offers clear explanations of the challenging concepts and legal rules in public law.

Part 1

General Introduction

1 Introducing Constitutional Law

2 Sources of the Constitution

Chapter 1

Introducing Constitutional Law

Chapter Contents

PART A: THE CONSTITUTION

Introduction

What is a Constitution?

Defining Constitutions

Classifying Constitutions

The Concept of Constitutionalism

PART B: A VERY LITTLE HISTORY

Introduction

Early Origins: 1066–1500

1500–1700

1700–1901

1902–Present

PART C: THE UNITED KINGDOM

Introduction

The British Islands

The Islands and Europe

The European Union

The United Kingdom and the Commonwealth

Further Reading

Learning Objectives

By the end of this chapter you should be able to:

□ explain the term ‘constitution’;

□ discuss the major categories of constitutions and their characteristics;

□ discuss the evolutionary development of the UK constitution;

□ explain the principal characteristics of the UK constitution.

PART A: THE CONSTITUTION

Introduction

Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state. The constitution is a living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs, and, accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates.

The study of the constitution of the United Kingdom involves acquiring an understanding of a variety of historical, legal, philosophical and political factors which have, over the centuries, shaped the organisation of the state. The United Kingdom appears to be almost unique in not having a constitution which is conveniently set out in a single written document. Israel and New Zealand share this constitutional feature. However, not too much weight should be given to the ‘unwritten’ nature of the constitution. Under all constitutions, not all of the rules will be written, and still less will they be collected within a single document.

In the United Kingdom, by contrast with most other states, the constitution is the product of many centuries of continuous and, mostly, gradual, peaceful evolution. With the exception of the constitutional turmoils of the seventeenth century,¹ the United Kingdom’s constitutional development has an unbroken history dating from 1066. Accordingly, historical origins form the background for the study of the contemporary constitution, and no meaningful appreciation of the present constitution can be acquired without understanding this historical backcloth which reveals the moral and political influences that have shaped the constitution as it exists today. That said, it must always be remembered that the principal emphasis of study is on the contemporary constitution of the United Kingdom rather than on the many centuries of development which underlie it. With that point in mind, it is necessary to draw on historical sources and events with a view to understanding the contribution made to an evaluation of the many constitutional issues which present themselves today.

It is particularly true of the United Kingdom’s constitution, which is more the product of evolution than conscious rational thought, that it is difficult to see clearly the demarcation lines between constitutional law, history, philosophy and political science. In order, therefore, to study the United Kingdom’s constitution successfully, it is necessary to gain an insight into the history, politics and political philosophy which underpin the constitution. This task is not easy, particularly as many students will come to constitutional law without a background in history, politics or political philosophy. It is, however, an essential component of constitutional study, without which the structure, law and policies of the state cannot be understood. More than any other area of legal study except jurisprudence, constitutional law in the United Kingdom involves far more than a learning of legal rules. Indeed, it may be said, without exaggeration, that the non-legal rules and practices within the constitution are at least as important – if not more important on many occasions – as the legal rules. For example, in analysing and evaluating the extent to which the individual citizen enjoys constitutional protection of individual rights, it is necessary to appreciate the timeless and tireless quest to ensure the legal protection of the rights of individuals. This study involves, inter alia, an appreciation of natural law and social contract theories² which underpin the constitutional limitations on government power in order that the rights of individuals are protected against the power of the state.

Also, by way of example, the study of the constitutional relationship between the government and the legislature – the United Kingdom Parliament today encompasses a knowledge of the political backcloth, the rules of parliamentary practice and the non-legal or conventional rules which apply in a given situation. By way of further illustration, when studying the legislative supremacy of Parliament, it is of fundamental importance to grasp that, in terms of classical constitutional legal theory, the power of Parliament – in the absence of a written constitution – is omnipotent or sovereign.³ However, the constitutional and legal fact that Parliament has the ultimate law-making power within the state does not mean that there are no restraints on what Parliament may do. The law-making powers of Parliament, while theoretically and legally unlimited, are in fact constrained by the electorate to which Parliament is accountable, and by economic, moral and political necessities. In terms of accountability to the electorate and the limits which this imposes on Parliament’s powers, it is necessary to appreciate the philosophical and historical foundations of democracy and the idea of individual rights. Notwithstanding the lack of a codified constituent document, under the constitution of the United Kingdom, the principles on which the government operates today are precisely those which govern the relationship between the government and the people under a written constitution. Here, an understanding of the idea of ‘social contract’⁴ makes it possible to understand the complex relationship between ‘sovereign power’ and the power of the people to determine who holds that sovereign power and the manner in which it may – and may not – be exercised.

To illustrate further the distinction between absolute legal power and practical power, in terms of law, the Crown has the right to appoint the Prime Minister of its choice, to summon Parliament and to enter into Treaties. To know these rules, however, is not to know very much, for the legal powers of the Crown are restricted – constrained – by non-legal, ‘conventional’ rules which determine the conditions under which the Crown has a discretion to exercise its powers. In order, therefore, to understand how the constitution works, it is necessary to understand the conventional rules which have developed over time and have taken on binding force.

What is a Constitution?

In lay terms, a constitution is a set of rules which governs an organisation. Every organisation, whether social club, trade union or nation state, which has defined objectives and departments or offices established to accomplish those objectives, needs a constitution to define the powers, rights and duties of the organisation’s members. This set of rules, in addition to regulating the internal working of the organisation, will make provision for the manner in which the organisation relates to outside bodies. It can therefore be said that a constitution looks to both internal and external regulation of the body to which it relates.

In addition to the function of allocating powers and duties and determining the relationships between the institutions of the state, a constitution fulfils two related purposes – those of definition and evaluation. In its defining function, the constitution is both descriptive and prescriptive (or normative). Differently expressed, the constitution will both define the manner in which the rules in fact operate and dictate what ought to happen in a given situation. As such, the rule or normative statement in question sets a standard of conduct or behaviour which is regarded as correct and which is expected to be adhered to by those to whom the rules are addressed. These constitutional rules – whether written or unwritten – facilitate the stability and predictability of behaviour. Further, when such normative rules exist, they provide a standard against which actual conduct can be judged or evaluated. If the accusation is made that members of an organisation have acted ‘unconstitutionally’, the speaker is claiming that those accused have acted in a manner which breaches the required standards of behaviour as laid down in the body of generally accepted pre-determined normative rules. In this sense, a constitutional rule, in addition to being descriptive, normative and predictive, is evaluative and judgmental.

When examining the rules of any organisation, it becomes apparent that individual rules have differing levels of importance and, moreover, that rules may have differing degrees of specificity or generality. The manner in which the rules are expressed may also differ; some may be written down, whereas some may be discernible only through observation of actual conduct. And thus it is with the constitution of a state, and particularly that of the United Kingdom, in which...