Constitutional and Administrative Law

John Alder, Keith Syrett

• Publisher: Red Globe Press
• Year: 2017
• Print ISBN: 9781137606716
• eBook ISBN: 9781137609076
• Edition: 11
• Topic: Law
• Subtopic: Public Law
• Index: Law

This textbook provides a thorough and accessible introduction to the basic principles of United Kingdom Constitutional and Administrative Law, including Human Rights law. By taking the reader through the key constitutional structures – including the notion of the UK constitution as developing "organically" and as a result of historical development and practical compromises – the authors are able to guide the reader step-by-step to a clearer understanding of UK Constitutional and Administrative Law.

This book is therefore an essential starting point for more advanced law students and a valuable source of legal context for politicalscience students alike. Both authoritative and accessible, it enables the reader to appreciate the complexity and beauty of this most fundamental part of our legal system.

Part I

The framework of the constitution

Chapter 1

Introduction: constitutional structures

1.1 The nature of the constitution: general issues

A constitution provides the governing framework of an organisation. Any organisation might have a constitution; for example, most golf clubs do so. In our case the organisation is the state. A state is a geographical territory with a government that has effective control over that area.

A constitution has three purposes: first, to enable the organisation to run effectively; second, to define the powers of those in charge of the organisation; and third, to protect members of the community against the abuse of those powers. Thus, the late Lord Bingham, a leading judge, suggested that ‘any constitution, whether of a state, a trade union, a college, a club or other institution seeks to lay down and define … the main offices in which authority is vested and the powers which may be exercised (or not exercised) by the holders of those offices’ (R v Secretary of State for Foreign and Commonwealth Affairs, ex p Quark Fishing Ltd [2006] 1 AC 529, at [12]).

Friedrich (Limited Government (Prentice Hall 1974) 21) displays a romantic approach to the idea of a constitution that stresses the (assumed) consent of the community: ‘[A] constitution is the ordering and dividing of the exercise of political power by that group in an existent community who are able to secure the consent of the community and who thereby make manifest the power of the community itself.’ However, it is fanciful to assume that there is a necessary connection between the securing of power and community consent unless we consider ‘consent’ to include acquiescence in the sense of the absence of resistance to whoever is in power by a subservient community.

Constitutional law deals with the following matters:

the choosing and removing of rulers;

the relationships between the different branches of the government;

the accountability of the government;

the dividing up of powers geographically, for example the relationships between the central United Kingdom government and the devolved governments of Scotland, Wales and Northern Ireland, and those between the state and overseas bodies;

the rights of the citizen in relation to government.

There is no hard and fast distinction between constitutional law and administrative law. Administrative law deals with particular government functions such as immigration, taxation and the work of the numerous regulators, special tribunals and inquiries that decide disputes involving government action. The administrative lawyer is especially concerned to ensure that officials keep within the powers given to them.

This book does not attempt to cover administrative law comprehensively since the subject has its own separate texts. Chapters 17, 18 and 19 on judicial review of administrative action deal with the core of administrative law, which is the legal accountability of the government. Other matters relating to administrative law such as ‘regulation’, tribunals, public inquiries and ombudsmen are discussed in Chapter 20.

In almost all countries the constitution comprises a special document or set of documents set above the ordinary law. This is called a written constitution, a codified constitution or a Basic Law. In addition to setting out the main principles of the government structure and sometimes a list of individual rights, a written constitution may proclaim, usually in a preamble, some grand vision or moral message about the nature and purposes of the society (e.g. the US Constitution seeks to ‘secure the blessings of liberty to ourselves and our posterity’). Importantly, a written constitution usually has a status superior to the rest of the law, in the sense that it can be altered only by an extraordinary procedure such as a public referendum or a special vote in the legislature, a device known as ‘entrenchment’. The courts may have the power to set aside a law that conflicts with the constitution. Such a constitution is therefore protected against manipulation by the government of the day.

The United Kingdom has no written constitution of this kind and no grand vision about the nature of its society. Our constitution, such as it is, is composed of numerous ordinary laws and other rules and practices which have emerged over many centuries to deal with particular issues. Both in its legal and its political aspects, the constitution relies on precedent in the sense of appealing to past decisions and practices. Its legal principles and rules, if written down at all, are to be found in the same documents as the sources of any law, namely:

Acts of Parliament (statutes) passed by Parliament at the instigation of the regime in power at the time. Thus constitutional statutes are scattered throughout the centuries, each dealing with a particular concern of the day (for examples see Section 3.2). The constitution also evolves through the accumulation of many pieces of detailed legislation about particular topics, for example, electoral law.

Cases decided by the courts (common law). Again these are scattered, dealing with specific matters and focusing narrowly on individual disputes which can arise in many and various contexts. The constitution therefore has to be pieced together by imaginative interpretation of a vast heap of particular rules and decisions.

Rules from these two sources are set out and can be changed in the same way as any other law. In other words they are constitutional only because of the matters they deal with. How do we know what counts as constitutional? The question arises mainly because constitutional matters are sometimes given special treatment (see Section 8.4.3). Any guidance can only be vague and general. For example, Laws LJ said that a matter is constitutional if it ‘conditions the legal relationships between citizen and state in some general overarching manner, or enlarges or diminishes the scope of what are now regarded as fundamental rights’ (Thoburn v Sunderland City Council [2002] 4 All ER 156, [62]–[64]).

Craig ([2014] PL 373, 389) refers to horizontal, territorial and vertical dimensions of constitutions. Horizontally, a constitution sets up the main organs of government and distributes their powers; territorially, it divides powers geographically; and vertically, it governs the relationship between citizen and state. However, as Craig points out, a constitutional rule must also be especially important, thus introducing a vague subjective element (how do we define what is ‘especially important’?) (see e.g. Section 1.4.1 Box).

The United Kingdom is probably unique in not having any written constitution. New Zealand is also said to have an unwritten constitution, but the New Zealand Constitution Act 1986, although it is an ordinary statute, sets out the basic structure of its government. Israel is said to have no written constitution, but has an organised collection of legislation recognised as constitutional by the Supreme Court. The constitution of Saudi Arabia is the Koran.

It is sometimes said that our constitution is ‘part written’. While literally correct – in that our constitutional laws are written down in the same way as any other laws – this description seems unhelpful since it ignores the fact that we have no special constitutional document with a higher status than other laws.

There are also many rules, practices and customs which are not ‘law’ at all. They get their force only because they are consistently obeyed as established practices. The most important of these are known as ‘constitutional conventions’. Many basic constitutional arrangements rely on conventions; for example, the selection of, and most of the powers of, the prime minister. Unlike laws, conventions are not directly enforced by the courts (Section 3.4.4). Some, although not all, are also unwritten.

There is no authority empowered to determine whether a convention exists and what it means. This depends entirely on general acceptance by the politicians and officials who run the government and those from whom they choose to take advice. There is no shortage of people who wish to give their opinions on constitutional matters and it is easy for the constitution to be influenced by networks of people having personal connections with those in power. Thus, Hennessy ((1995) 15–30) describes the UK Constitution as generated by a circle of ‘insiders’ comprising senior officials, their friends and their academic and professional acolytes. He recounts the Victorian conceit that conventions embody ‘the general agreement of public men’ about ‘the rules of the game’ ((1995) 36, 37).

Our constitution is often described as ‘organic’, meaning that it develops naturally in the light of changing circumstances. We should not therefore expect the constitution to be straightforward and logical. It is a product of historical development and practical compromises generated by rival groups of power-hungry persons. In another metaphor, the common law UK Constitution is sometimes compared to a ramshackle old house under constant repair and renovation and made of numerous bits and pieces. It has also been compared, with the implication that it is ‘sound and lasting’, to the work of bees making a honeycomb (see Jackson v Attorney General [2006] 1 AC 262, at [125] (Lord Hope)). Thus constitutional change may be disguised under the cloak of continuity, taking place in relatively small steps, in the interests of those in power at the time, without adequate scrutiny, and perhaps eventually changing the nature of the ‘house’. Consider, for example, the progress of devolution of powers to Scotland, Wales and Northern Ireland and the series of anti-terrorism measures introduced in recent years.

It has often been suggested that we do not have a constitution in any meaningful sense. The democratic activist Thomas Paine (1737–1809) labelled the British government as ‘power without right’. In The Rights of Man, Paine asserted that without a written constitution authorised directly by the people there was no valid constitution (first published 1791, ed. Foot and Kramnick (Penguin 1987) 220–21, 285–96). Similarly, Ridley (1988) claims that the United Kingdom has no constitution since he believes that constitutions must be superior to the government of the day and not changeable by it. The UK seems to fail this test. Insofar as any rules have a special status, this is based on no more than self-restraint founded upon respect for principles that are regarded by those in power as fundamental or ‘constitutional’.

1.1.1 Constitutionalism

However, whether or not we have a constitution in a strict sense, the term ‘constitutionalism’ applies to the UK as a widely shared belief in favour of limited and accountable government. It includes the rule of law, which requires limits on government policed by independent courts, and ‘responsible government’, which requires government officials to be accountable for their actions to an institution representing the people.

Constitutionalism also favours separation of powers between different governmental organs. For example, in R (Evans) v Attorney General [2015] UKSC 21, the Supreme Court was highly critical of the statutory power of the executive to veto a tribunal decision to require publication under the Freedom of Information Act 2000 (Section 24.2.1). This was described by Judge LJ in the High Court as a constitutional aberration ([2013] EWHC 1960 (Admin), at [1]).

It requires openness in government decision-making and open justice in the courts (A v BBC [2014] 2 All ER 1037, [27]). It also includes the protection of rights such as access to the courts and freedom of expression, described as inherent and fundamental to democratic civilised society (see Baroness Hale in Seal v Chief Constable of South Wales Police [2007] 4 All ER 177, at [38]–[40]).

1.2 The foundations of a constitution

A constitution can, of course, adopt any form of government. The most widely accepted explanation of the foundations of a constitution is a ‘positivist’ one. According to this theory, a constitution is valid or ‘legitimate’ if enough of the people whom it concerns, both officials and the public, accept it so as to make it broadly effective, irrespective of the motivations for such acceptance. Thus ...

Table of contents

• Cover
• Halftitle
• Title Page
• Copyright
• Contents
• Preface
• Table of cases
• Table of legislation
• Part I The framework of the constitution
• Part II Fundamental principles
• Part III International aspects of the constitution
• Part IV Government institutions
• Part V Administrative law
• Part VI Fundamental rights
• Index