Constitutional and administrative law

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Citation:

Bradley, A. W., Ewing, K. D., & Knight, C. J. S. (2018). Constitutional and administrative law (17th ed.). Pearson Education.

Chapter Summary:

1. Sources, Structure, and Principles:
   • Constitutional Law – Its Meaning and Sources: This chapter introduces the fundamental concepts and definitions of constitutional law, outlining its significance and scope within the legal framework. It distinguishes between formal sources like statutes and informal sources such as conventions.
   • The Structure of the United Kingdom: This section covers the historical and contemporary structure of the UK, including the roles of its constituent parts (England, Scotland, Wales, and Northern Ireland) and the implications of devolution.
2. Parliamentary Supremacy:
   • Historical Development and Meaning: This chapter discusses the evolution of parliamentary supremacy and its contemporary meaning. It addresses the continuing nature of parliamentary supremacy, despite the UK’s membership in the European Union and the impact of the Human Rights Act.
   • Limitations and Challenges: The chapter examines the challenges to parliamentary supremacy, including judicial review, devolution, and the potential impact of Brexit.
3. The Rule of Law:
   • Concept and Development: The rule of law is explored through its historical development and current applications. The chapter discusses its implications for legal predictability, accountability, and fairness.
   • Contemporary Issues: This section covers the application of the rule of law in contemporary contexts, such as counter-terrorism, judicial independence, and administrative justice.
4. Responsible and Accountable Government:
   • Collective and Individual Ministerial Responsibility: The chapter outlines the principles of collective and individual ministerial responsibility, detailing how they ensure government accountability.
   • Mechanisms of Accountability: This section discusses the various mechanisms that hold the government accountable, including parliamentary scrutiny, public inquiries, and the role of the judiciary.
5. United Kingdom and the European Union:
   • Legal Obligations and Constitutional Implications: This chapter examines the legal obligations arising from the UK’s EU membership and the constitutional implications of these obligations. It includes a detailed analysis of the European Union (Withdrawal) Act and its potential impacts.
   • Brexit and Future Directions: The chapter discusses the emerging legal implications of Brexit, including changes to the constitutional landscape and ongoing negotiations.
6. The Institutions of Government:
   • Composition and Role of Parliament: This section covers the composition of the House of Commons and the House of Lords, their roles, and functions within the UK government. It includes discussions on electoral systems, political parties, and the conduct of elections.
   • Privileges and Powers: The chapter outlines the privileges of Parliament, including freedom of speech within parliamentary proceedings and the legal protections afforded to members.
7. The Crown and Royal Prerogative:
   • Historical and Modern Roles: This chapter explores the historical development of the monarchy and its modern constitutional role. It discusses the personal prerogatives of the monarch and the application of the royal prerogative in contemporary governance.
   • Judicial Review of Prerogative Powers: The section analyzes the extent to which prerogative powers are subject to judicial review, emphasizing significant case law and legal principles.
8. Cabinet, Government Departments, and Civil Service:
   • Structure and Functions: This chapter examines the structure and functions of the Cabinet, government departments, and the civil service. It covers the roles of the Prime Minister, ministers, and civil servants in the administration of government.
   • Ethics and Standards: The section discusses the ethical standards and codes of conduct that govern the behavior of public officials and civil servants, including measures for ensuring accountability and transparency.
9. Public Bodies and Public Appointments:
   • Categories and Functions: This chapter categorizes various public bodies and outlines their functions and powers. It includes discussions on non-departmental public bodies, regulatory agencies, and advisory committees.
   • Appointments and Accountability: The chapter examines the processes for public appointments and the mechanisms for ensuring the accountability of public bodies.
10. Courts and the Administration of Justice:
    • Judicial Independence and Appointments: This section covers the principles of judicial independence and the processes for judicial appointments. It emphasizes the importance of an independent judiciary in maintaining the rule of law.
    • Contempt of Court and Administration of Justice: The chapter explores the laws governing contempt of court and the broader administration of justice, including the roles of various judicial bodies and procedures for ensuring fair trials.
11. Human Rights Act:
    • Incorporation of the European Convention on Human Rights: This chapter discusses the incorporation of the ECHR into UK law through the Human Rights Act 1998, highlighting its impact on domestic law and judicial review.
    • Key Provisions and Cases: The section provides an overview of key provisions of the Human Rights Act and significant case law that has shaped its interpretation and application.
12. Rights to Liberty and Police Powers:
    • Legal Protections and Police Authority: This chapter outlines the legal protections for individual liberty and the scope of police powers. It includes discussions on arrest, detention, search, and seizure.
    • Accountability and Remedies: The section examines the mechanisms for holding police accountable for abuses of power and the remedies available to individuals whose rights have been violated.
13. Right to Privacy and Surveillance Powers:
    • Legal Framework and Protections: This chapter explores the legal framework for protecting the right to privacy, including data protection laws and regulations governing surveillance.
    • Challenges and Developments: The section discusses contemporary challenges to privacy rights, such as advancements in surveillance technology and the implications of government data collection practices.
14. Right to Freedom of Expression:
    • Legal Protections and Restrictions: This chapter outlines the legal protections for freedom of expression and the circumstances under which it can be restricted. It covers issues such as censorship, defamation, and public order offenses.
    • Case Law and Controversies: The section analyzes significant case law and contemporary controversies related to freedom of expression, including the balance between free speech and protection from harm.
15. Freedom of Association and Assembly:
    • Legal Rights and Limitations: This chapter examines the legal rights to freedom of association and assembly, including the formation of political parties, trade unions, and the right to protest.
    • Public Order and Restrictions: The section discusses the limitations on these freedoms, such as restrictions on public assemblies and the legal framework for maintaining public order.
16. State Security and Official Secrets:
    • Security Services and Legal Framework: This chapter covers the legal framework governing state security and the operations of security services. It includes discussions on intelligence agencies, surveillance powers, and the protection of official secrets.
    • Balancing Security and Transparency: The section examines the balance between national security interests and the need for transparency and accountability in government operations.
17. Special and Emergency Powers:
    • Legislative Responses to Crises: This chapter explores the legislative framework for special and emergency powers, including measures to address terrorism and other national emergencies.
    • Impact on Civil Liberties: The section discusses the implications of emergency powers on civil liberties, highlighting the need for safeguards to prevent abuse.
18. Administrative Law:
    • Scope and Development: This chapter provides an overview of administrative law, its functions, and its development over time. It covers the relationship between law and administrative processes.
    • Judicial Review: The section examines the grounds, procedures, and remedies for judicial review, emphasizing the role of the judiciary in overseeing administrative actions and ensuring legality.
19. Liability of Public Authorities:
    • Legal Accountability: This chapter discusses the liability of public authorities in tort, contract, and other legal contexts. It includes discussions on the Crown’s immunity and the legal principles governing public authority liability.
    • Case Law and Examples: The section provides examples and case law illustrating the principles of public authority liability and the remedies available to individuals harmed by public actions.

This comprehensive overview provides a detailed understanding of the content covered in Bradley, Ewing, and Knight’s Constitutional and Administrative Law. It sets the stage for a deeper exploration of key concepts, critical perspectives, and real-world applications in subsequent sections.

Key Concepts:

1. Parliamentary Supremacy:
   • Historical Evolution: Parliamentary supremacy means that Parliament is the supreme legal authority in the UK, capable of creating or ending any law. The historical evolution of this principle highlights the gradual shift of power from the monarchy to Parliament.
   • Contemporary Relevance: Despite challenges from EU membership and the Human Rights Act, parliamentary supremacy remains a cornerstone of the UK constitution. However, Brexit and devolution have introduced new complexities and potential limitations.
2. The Rule of Law:
   • Principles: The rule of law emphasizes that all individuals and institutions are subject to and accountable under the law. It includes principles of legal certainty, equality before the law, and fair access to justice.
   • Applications: The rule of law is applied in various contexts, such as the limitation of government powers, protection of fundamental rights, and ensuring fair judicial processes.
3. Responsible and Accountable Government:
   • Collective Responsibility: This principle means that all government ministers are collectively responsible for government policies and decisions. If the government is defeated in a vote of no confidence, all ministers must resign.
   • Individual Ministerial Responsibility: Ministers are accountable to Parliament for their personal conduct and the actions of their departments. This ensures a mechanism for scrutinizing and holding ministers accountable for their decisions.
4. Human Rights Act 1998:
   • Incorporation of ECHR: The Human Rights Act incorporates the European Convention on Human Rights into UK law, allowing individuals to seek redress in domestic courts for human rights violations.
   • Key Provisions: The Act includes rights such as the right to life, prohibition of torture, right to a fair trial, and right to privacy. It has significantly influenced the development of UK human rights jurisprudence.
5. Judicial Review:
   • Grounds of Review: Judicial review allows courts to review the lawfulness of decisions or actions taken by public authorities. Grounds for review include illegality, procedural unfairness, and irrationality.
   • Procedures and Remedies: The judicial review process includes specific procedures and potential remedies, such as quashing orders, prohibiting orders, and declarations of unlawfulness.
6. Devolution:
   • Structure and Powers: Devolution refers to the delegation of powers from the central government to regional governments in Scotland, Wales, and Northern Ireland. Each devolved government has varying degrees of legislative power.
   • Impact on Constitutional Structure: Devolution has reshaped the constitutional structure of the UK, creating a more complex and multi-layered governance system. It raises questions about the distribution of powers and the balance between regional autonomy and central control.
7. The Crown and Royal Prerogative:
   • Modern Constitutional Role: The Crown’s role is largely ceremonial, with real political power exercised by elected officials. However, the royal prerogative includes important powers, such as the issuing of passports and the conduct of foreign affairs.
   • Judicial Oversight: Courts have increasingly subjected the exercise of prerogative powers to judicial review, ensuring that they are exercised lawfully and in accordance with constitutional principles.
8. Freedom of Expression and Association:
   • Legal Protections: The right to freedom of expression is protected by common law, statutes, and international agreements like the ECHR. This includes the right to speak, write, and publish freely, subject to limitations for reasons such as national security and public order.
   • Public Order and Regulation: Freedom of association encompasses the right to form and join groups, including political parties and trade unions. Regulations may restrict these freedoms to ensure public order and safety.
9. Administrative Law:
   • Functions and Scope: Administrative law governs the activities of administrative agencies of government. It ensures that such bodies act within their legal powers and adhere to principles of fairness, reasonableness, and transparency.
   • Tribunals and Inquiries: Administrative law includes mechanisms like tribunals and public inquiries to resolve disputes and investigate issues within the administrative framework.
10. State Security and Official Secrets:
    • Legal Framework: State security laws regulate the activities of intelligence agencies and the protection of official secrets. These laws aim to balance national security needs with individual rights and freedoms.
    • Oversight and Accountability: There are mechanisms to oversee and ensure the accountability of security agencies, such as parliamentary committees and independent regulators.
11. Special and Emergency Powers:
    • Legislative Measures: Special and emergency powers include laws that grant the government extraordinary powers during crises, such as the Civil Contingencies Act 2004. These powers can affect civil liberties and require careful oversight.
    • Implications for Civil Liberties: The use of emergency powers raises concerns about the potential for abuse and the need for safeguards to protect individual rights during emergencies.
12. Judicial Independence:
    • Principles and Protections: Judicial independence ensures that judges can make decisions free from political pressure or influence. It is essential for maintaining the rule of law and public confidence in the legal system.
    • Challenges and Reforms: The chapter discusses ongoing challenges to judicial independence and recent reforms aimed at strengthening the judiciary’s autonomy and integrity.

These key concepts provide a foundational understanding of the main themes and legal principles discussed in Bradley, Ewing, and Knight’s Constitutional and Administrative Law. They highlight the intricate balance between governmental powers, individual rights, and the rule of law within the UK constitutional framework.

Critical Analysis:

1. Parliamentary Supremacy and Brexit:
   • Strengths: The principle of parliamentary supremacy has been fundamental in establishing the UK as a sovereign state with a strong, centralized legislative authority. It allows Parliament to respond flexibly to changing political and social conditions without being constrained by entrenched legal provisions.
   • Critique: Brexit has exposed vulnerabilities in the principle of parliamentary supremacy. The referendum result and subsequent parliamentary maneuvers demonstrated the complexities and tensions in a system where parliamentary sovereignty can clash with direct democratic mandates. The challenge lies in reconciling the supremacy of Parliament with the will of the people as expressed through referendums.
2. The Rule of Law and Counter-Terrorism:
   • Strengths: The rule of law ensures that all actions by public authorities are legally grounded and that individuals have access to justice. This principle is crucial in maintaining public confidence in the legal system and protecting individual rights.
   • Critique: Counter-terrorism measures often test the boundaries of the rule of law. Laws like the Terrorism Act 2000 and the Investigatory Powers Act 2016 grant extensive powers to security agencies, which can undermine civil liberties. The balance between national security and individual rights remains a contentious issue, with ongoing debates about the appropriate scope and oversight of such powers.
3. Responsible Government and Ministerial Accountability:
   • Strengths: The doctrines of collective and individual ministerial responsibility ensure that government actions are subject to scrutiny and that ministers are accountable for their conduct and decisions. This fosters transparency and accountability in government.
   • Critique: In practice, ministerial accountability can be weakened by political considerations and party loyalties. Instances where ministers have avoided resignation despite significant failures highlight the limitations of these doctrines. The effectiveness of accountability mechanisms depends on political will and the robustness of parliamentary oversight.
4. Human Rights Act 1998:
   • Strengths: The incorporation of the ECHR into UK law through the Human Rights Act 1998 has strengthened the protection of individual rights. It allows individuals to seek redress in domestic courts and has influenced the development of a human rights culture within the UK.
   • Critique: The Human Rights Act faces political challenges, with some advocating for its repeal or replacement with a British Bill of Rights. Critics argue that the Act sometimes conflicts with parliamentary sovereignty and can lead to judicial overreach. Balancing the protection of rights with respect for democratic decision-making is an ongoing challenge.
5. Judicial Review:
   • Strengths: Judicial review serves as a crucial check on the exercise of public power, ensuring that decisions and actions by public authorities comply with the law. It upholds principles of legality, rationality, and procedural fairness.
   • Critique: The expansion of judicial review has led to concerns about judicial activism, where courts are perceived to be encroaching on the domain of the executive and legislature. This tension raises questions about the appropriate limits of judicial intervention in administrative and political matters.
6. Devolution and Constitutional Complexity:
   • Strengths: Devolution has allowed for greater regional autonomy and responsiveness to local needs in Scotland, Wales, and Northern Ireland. It reflects the diverse political and cultural landscape of the UK.
   • Critique: Devolution has introduced constitutional complexities and potential conflicts between devolved and central governments. Issues such as the Scottish independence movement and differing approaches to Brexit highlight the challenges of maintaining a cohesive constitutional framework while accommodating regional diversity.
7. The Crown and Royal Prerogative:
   • Strengths: The royal prerogative provides the executive with flexibility to act in certain areas without the need for parliamentary approval, which can be useful in times of emergency or for conducting foreign affairs.
   • Critique: The use of prerogative powers without adequate parliamentary oversight can undermine democratic accountability. Recent judicial decisions, such as the Miller cases, have emphasized the need for greater scrutiny and limitation of these powers to ensure they are exercised in a manner consistent with constitutional principles.
8. Freedom of Expression and Association:
   • Strengths: Legal protections for freedom of expression and association are essential for a vibrant democracy. They enable individuals to participate in public discourse, criticize the government, and organize collectively.
   • Critique: These freedoms can be restricted for reasons such as national security, public order, and protection from harm. Determining the appropriate balance between protecting these rights and imposing necessary limitations is challenging. Controversies over hate speech laws and restrictions on protests illustrate the difficulties in navigating this balance.
9. Administrative Law and Public Accountability:
   • Strengths: Administrative law provides mechanisms for holding public authorities accountable and ensuring they act within their legal powers. It includes processes like judicial review, tribunals, and public inquiries.
   • Critique: The complexity of administrative law can make it difficult for individuals to navigate and access justice. There are also concerns about the effectiveness of remedies and the resources available to support administrative justice. Ensuring that administrative law remains accessible and effective is an ongoing concern.
10. State Security and Civil Liberties:
    • Strengths: Laws governing state security and the protection of official secrets are necessary for safeguarding national security and protecting sensitive information. They provide a legal framework for the operations of intelligence agencies.
    • Critique: The potential for abuse of state security powers poses significant risks to civil liberties. Oversight mechanisms are essential to prevent misuse of these powers and to ensure that actions taken in the name of national security are proportionate and justified.
11. Special and Emergency Powers:
    • Strengths: Special and emergency powers enable the government to respond swiftly and effectively to crises, such as natural disasters, terrorist attacks, and pandemics. These powers are crucial for maintaining public safety and order.
    • Critique: The use of emergency powers can lead to the suspension of civil liberties and democratic processes. Ensuring that these powers are subject to rigorous oversight and are used only when absolutely necessary is critical to preventing abuse and protecting democratic values.
12. Judicial Independence:
    • Strengths: Judicial independence is fundamental to the rule of law and ensures that judges can make decisions free from political pressure or influence. It is vital for maintaining public confidence in the legal system.
    • Critique: Judicial independence can be threatened by political pressures, public criticism, and insufficient safeguards. Ensuring that the judiciary remains independent and adequately protected from external influences is essential for the integrity of the legal system.

Bradley, Ewing, and Knight’s Constitutional and Administrative Law offers a thorough and insightful analysis of the UK’s constitutional framework. The critical perspectives presented here highlight the strengths and challenges of various principles and mechanisms within this framework. The ongoing evolution of the UK’s constitution, particularly in the context of Brexit, devolution, and human rights, underscores the dynamic and complex nature of constitutional law.

Real-World Applications and Examples:

1. Parliamentary Supremacy and Brexit:
   • Example: The Brexit process has vividly illustrated parliamentary supremacy and its limits. In the case of R (Miller) v Secretary of State for Exiting the European Union (2017), the UK Supreme Court ruled that the government could not trigger Article 50 of the Lisbon Treaty without an Act of Parliament. This decision reinforced the principle that significant constitutional changes require parliamentary approval.
   • Application: This case underscored the role of Parliament in overseeing significant national decisions, highlighting the need for parliamentary consent in the Brexit process. It also demonstrated the judiciary’s role in upholding parliamentary sovereignty against executive overreach.
2. The Rule of Law in Counter-Terrorism:
   • Example: The Investigatory Powers Act 2016 (often referred to as the “Snooper’s Charter”) expanded the surveillance capabilities of UK intelligence agencies, raising concerns about the balance between security and privacy. The Act allows for the bulk collection of communications data and internet records.
   • Application: This legislation has been challenged in courts, with critics arguing that it violates the rule of law by granting excessive powers to the state without adequate safeguards. Ongoing legal challenges and public debate highlight the tension between national security and individual rights.
3. Ministerial Accountability and Government Transparency:
   • Example: The Windrush scandal, which came to light in 2018, involved the wrongful detention and deportation of Commonwealth citizens who had the right to live in the UK. The scandal led to the resignation of Home Secretary Amber Rudd after it was revealed that she had misled Parliament about deportation targets.
   • Application: This incident highlighted the importance of ministerial accountability and transparency. It demonstrated the mechanisms of parliamentary scrutiny and the consequences for ministers who fail to uphold their responsibilities.
4. Human Rights Act 1998:
   • Example: In A and Others v Secretary of State for the Home Department (2004), the House of Lords (now the Supreme Court) ruled that the indefinite detention of foreign terror suspects without trial, as provided by the Anti-terrorism, Crime and Security Act 2001, was incompatible with the Human Rights Act 1998. Specifically, it violated Article 5 (right to liberty and security) and Article 14 (prohibition of discrimination) of the ECHR.
   • Application: This case demonstrated the power of the Human Rights Act to protect individual rights against disproportionate state action. It also showed the judiciary’s role in interpreting and enforcing human rights protections within domestic law.
5. Judicial Review and Executive Actions:
   • Example: In R (UNISON) v Lord Chancellor (2017), the Supreme Court ruled that the government’s introduction of employment tribunal fees was unlawful because it effectively denied access to justice. The fees were found to be prohibitive for many individuals, undermining the right to a fair trial.
   • Application: This case illustrates the crucial role of judicial review in safeguarding fundamental rights and ensuring that executive actions are lawful and reasonable. It reinforces the judiciary’s ability to check executive power and protect access to justice.
6. Devolution and Regional Autonomy:
   • Example: The Scottish Parliament’s handling of education and healthcare policies demonstrates the impact of devolution. For instance, Scotland has implemented different policies on tuition fees and prescription charges compared to the rest of the UK.
   • Application: Devolution allows for tailored policy-making that reflects regional preferences and needs. It highlights the benefits of regional autonomy within a unified state, while also raising questions about the coherence and consistency of national policies.
7. Royal Prerogative and Judicial Oversight:
   • Example: The case of R (Miller) v Prime Minister (Miller 2) (2019) involved the Prime Minister’s advice to the Queen to prorogue Parliament for five weeks during the Brexit negotiations. The Supreme Court ruled that the prorogation was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.
   • Application: This case demonstrated the judiciary’s willingness to scrutinize and limit the exercise of prerogative powers. It affirmed the principle that executive actions, even those involving prerogative powers, must be subject to legal and constitutional constraints.
8. Freedom of Expression in the Digital Age:
   • Example: The case of PJS v News Group Newspapers Ltd (2016) involved a privacy injunction to prevent the publication of details about a celebrity’s private life. The Supreme Court upheld the injunction, balancing the right to privacy against freedom of expression.
   • Application: This case illustrates the ongoing challenges in balancing freedom of expression with the right to privacy, especially in the context of digital media. It underscores the importance of legal frameworks in protecting individuals’ rights while allowing for a free press.
9. Administrative Law and Public Accountability:
   • Example: The Grenfell Tower Inquiry, established to investigate the causes and consequences of the Grenfell Tower fire in 2017, highlights the role of public inquiries in administrative law. The inquiry aims to ensure accountability and prevent future tragedies.
   • Application: Public inquiries serve as a vital tool for administrative accountability, allowing for thorough investigation of public failures and providing recommendations for reform. They play a critical role in maintaining public trust and ensuring that government actions are scrutinized.
10. State Security and Oversight Mechanisms:
    • Example: The Intelligence and Security Committee (ISC) of Parliament oversees the operations of the UK’s intelligence agencies, including MI5, MI6, and GCHQ. The ISC reports to Parliament on issues of national security, ensuring that intelligence activities are conducted lawfully.
    • Application: Oversight mechanisms like the ISC are essential for balancing state security needs with individual rights. They provide a check on the activities of intelligence agencies, promoting transparency and accountability.
11. Special and Emergency Powers in Health Crises:
    • Example: The COVID-19 pandemic saw the UK government invoking emergency powers under the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 2020 to impose lockdowns, quarantine measures, and other restrictions to control the spread of the virus.
    • Application: The use of emergency powers during the pandemic highlighted the need for robust legal frameworks and oversight to ensure that such powers are used appropriately and do not disproportionately infringe on civil liberties. It also demonstrated the importance of clear communication and public trust in the effectiveness of emergency measures.
12. Judicial Independence and Public Confidence:
    • Example: The appointment and tenure of judges in the UK are designed to ensure judicial independence. For instance, the Judicial Appointments Commission (JAC) selects judges based on merit, and judges enjoy security of tenure, meaning they cannot be removed from office without substantial cause.
    • Application: These safeguards help maintain public confidence in the judiciary by ensuring that judges are impartial and free from political influence. Judicial independence is crucial for upholding the rule of law and ensuring fair administration of justice.

Bradley, Ewing, and Knight’s Constitutional and Administrative Law offers a comprehensive analysis of these real-world applications, demonstrating how theoretical principles are implemented and tested in practice. The examples provided illustrate the dynamic and evolving nature of constitutional and administrative law in the UK, highlighting the ongoing challenges and debates in balancing governmental powers, individual rights, and the rule of law.