Constitutional & administrative law

954 Pages·2010·6.42 MB·English

by  Hilaire Barnett

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Constitutional & Administrative
Law
Eighth Edition

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Constitutional
&
Administrative
Law
EIGHTH EDITION
Hilaire Barnett

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Eighth edition first published 2011
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
270 Madison Avenue, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group,
an informa business
This edition published in the Taylor & Francis e-Library, 2010.
To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.
© 2011 Hilaire Barnett
The right of Hilaire Barnett to be identified as author of this work has been
asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
Previous editions published by Cavendish Publishing Limited
First edition 1995
Second edition 1998
Third edition 2000
Fourth edition 2002
Fifth edition 2004
Sixth edition 2006
Previous editions published by Routledge-Cavendish
Seventh edition 2009
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
British Library Cataloguing in Publicatio n Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Barnett, Hilaire.
Constitutional & administrative law / Hilaire Barnett with Robert Jago.—8th ed.
p. cm.
Includes bibliographical references and index.
1. Constitutional law—Great Britain. 2. Administrative law—Great Britain.
I. Jago, Robert. II. Title. III. Title: Constitutional and administrative law.
KD3989.B374 2010
342.41—dc22 2010009464
ISBN 0-203-84388-6 Master e-book ISBN
ISBN13: 978–0–415–57881–3 (hbk)
ISBN13: 978–0–415–56301–7 (pbk)
ISBN13: 978–0–415–84388–e (eBook)
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For Matthew and Essie, George and Amy

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Preface
The United Kingdom’s constitution, while of ancient origins, remains both dynamic and
vibrant. As every public lawyer is only too aware, nowadays, the proper boundaries of
constitutional and administrative law are both increasingly wide and subject to debate. In
compiling any textbook on this subject, one of the principal preliminary tasks lies in
defining the scope of material to be included and the approach to be adopted in relation to
that material. The task of writing is made more problematic by the many and varied depths
in which, and the means by which, the subject is taught both in the United Kingdom and
overseas. Full time students, part time students, students on long distance learning pro-
grammes and students combining both constitutional and administrative law within a one
year course, all have differing needs. The aim in this book has been to provide sufficient
detail to meet all such needs in a user-friendly manner.
As emphasised in the introductory chapters, the study of the United Kingdom’s consti-
tutional and administrative law involves rather more than a learning of rules of law, and
necessarily encompasses – over and above an understanding of legal rules – an understand-
ing of history, government, politics and conventional practices which form the founda-
tions of the contemporary constitution. As a result, any constitutional and administrative
law textbook must incorporate sufficient information relating to such matters so as to
enable students to view the constitution in its historical, political and conventional context.
In this book, I have addressed the subject in this manner in order to provide a rounded,
contextual explanation of the United Kingdom’s constitution, which goes beyond pure

law while also adequately covering the law.
As previously, the text is divided into seven main parts. Part I provides a general
introduction to the scope of constitutional law, the sources of the constitution and the
structure of the United Kingdom. In Part II, the fundamental concepts of the constitution
are considered: the rule of law, separation of powers, the royal prerogative and parlia-
mentary sovereignty. In Part III, the European Union and Community is discussed. The
material is divided into two chapters. Chapter 7 considers the evolution, aims and structure
of the Union and Community and the principal institutions and their respective powers. In
Chapter 8, the sources of Community law and the relationship between national and
Community law are discussed.
In Part IV, the structure of government is discussed, Chapter 9 considering the role of
Prime Minister, Cabinet and the Civil Service, Chapter 10 discussing the concept of respon-
sible government and ministerial responsibility and Chapter 11 the devolution of power to
the Northern Ireland Assembly, Scottish Parliament and Welsh Assembly and local
government.
Part V is devoted to the United Kingdom Parliament: Westminster. Chapter 12 discusses
the electoral system, and Chapter 13 introduces the reader to the House of Commons.
Chapters 14 and 15 are devoted to parliamentary procedures for the scrutiny of legislative
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viii PREFACE
proposals and scrutiny of government administration. The House of Lords, its role,
functions and the current reform proposals are considered in Chapter 16. Parliamentary
privilege is discussed in Chapter 17.
Part VI focuses on the individual and the state, covering civil liberties, immigration and
asylum, police powers and the protection of human rights. The subject of state security is
discussed in Chapter 23. Part VII introduces administrative law. Judicial review of adminis-
trative action comprises three chapters, the first dealing with the role and scope of judicial
review and procedural matters; the second and third analysing the grounds for judicial
review. The complementary role, functions and powers of Commissioners for Administra-
tion and Tribunals are considered in Chapter 27.
Revising the text for a new edition always presents challenges. As with the seventh
edition this edition is published in the shadow of the (now former) Labour government’s
constitutional reform programme. The Constitutional Reform and Governance Act 2010
received the Royal Assent in April 2010, too late for detailed discussion although it has
been possible to incorporate its major provisions in the text. The Treaty of Lisbon 2007,
ratified in 2009, represented a further major development. Problematically, it revises most
of the EC Treaty and TEU Article numbers.
The third challenge was the General Election of 6 May 2010, held just over a week
before proofs were due for return. For the first time since the 1970s the election resulted in
a ‘hung Parliament’, with no political party winning a clear majority of seats entitling it to
form a government. As is constitutionally correct, the Prime Minister remained in post
while the three main parties – over a period of five days – sought to find a solution which
would produce a government capable of commanding the support of the House of Com-
mons. The result was the formation of a coalition government between the Conservative
Party and Liberal Democrat Party which together command a majority of 363 (of 650)
seats in Parliament (see Chapters 10 and 12). To bolster stability, the Conservative Prime
Minister announced that the agreement was intended to last for the life of the incoming
Parliament which would be fixed for an unprecedented five-year term, with the next
general election scheduled for 2015. He also announced that the government would seek
legislation introducing five-year fixed-term Parliaments for the future and introduce an
increased majority for a Vot e of No Confidence to succeed in forcing the government’s
resignation. One of the conditions for the coalition is that a referendum be held on the
introduction of the Alternative Vote system for general elections.
As previously, my thanks to Fiona Kinnear and the team at Routledge, with whom it
has been a pleasure to work. Particular thanks go to Dr Theodore Konstandinides of the
University of Surrey and to Dr Adam Lazowski of the University of Westminster for their
generous help with the EU chapters. Thanks also to Robert Jago of the University of Surrey
who updated the chapter on Police Powers and also assumed responsibility for expanding
the coverage of Judicial Review and for the material on Tribunals in Chapter 27.
I would also like to thank all the students, past and present – both at home and,
particularly, in the Far East – who over the years have deepened my understanding of the
difficulties they face in studying such a rich, varied and essentially protean subject as that
of the constitution of the United Kingdom. Family and all friends are again owed a large
and unquantifiable debt of gratitude, not just for all their support, but also for allowing me
the necessary time and solitude in which to update the text.
Hilaire Barnett
June 2010
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Outline Contents
Preface vii
Table of Cases xi
Table of Legislation UK and International Legislation xlv
Table of Statutory Instruments lxv
Table of Decisions, Directives, Regulations, Treaties and Conventions lxvii
Guide to the Companion Website lxxiii
PART 1 – GENERAL INTRODUCTION
1 Introduction: The Scope of Constitutional Law 3
2 Sources of the Constitution 25
PART 2 – FUNDAMENTAL CONSTITUTIONAL CONCEPTS
3 The Rule of Law 51
4 The Separation of Powers 79
5 The Royal Prerogative 107
6 Parliamentary Sovereign ty 145
PART 3 – THE EUROPEAN UNION
7 Structures and Institutions 189
8 European Union Law and National Law 225
PART 4 – CENTRAL, REGIONAL AND LOCAL GOVERNMENT
9 Central Government 253
10 Responsible Government 281
11 Devolution and Local Government 307
PART 5 – PARLIAMENT
12 The Electoral System 341
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