Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction

835 Pages·2012·9.18 MB·English

by  Ian Loveland

About the Online Resource Centre
To access the casebook, please follow these instructions:
1) G o to: www.oxfordtextbooks.co.uk/orc/loveland6e/
2) Click on the ‘Online Casebook’ link
3) E nter the login details below (both are case sensitive)
Username: loveland6e
Password: casebook
4) Scroll through the list of cases and click on the link you are
interested in
This book is complemented by an Online Resource Centre that
provides a fully linked online casebook, a collection of mind-maps
for revision, and a series of sample seminar classes for lecturers.
In the casebook, carefully edited versions of vital legislation and
case law that are discussed in the main text are listed under the
same chapter headings that are in this book.
The Online Resource Centre is intended to enhance the value of
the textbook as a teaching resource, and to free law schools and
students from the time and expense of compiling hard copy
versions of the leading cases and legislative provisions. The
casebook is fully paginated for ease of reference in a classroom
context.
Should you experience any difficulty in accessing this resource,
These resources are all available FREE of charge, and provide please contact [email protected] for assistance.
extensive support for the student or tutor of constitutional and
administrative law.
To Carol, Madison, and Daniel
Constitutional Law,
Administrative Law,
and Human Rights
A Critical Introduction
Sixth edition
Professor Ian Loveland
City University, London
Barrister, Arden Chambers
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Oxford University Press 2012
Th e moral rights of the author have been asserted
Th ird Edition published by Butterworths 2004
Fourth Edition published 2006
Fift h Edition published 2009
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v1.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)
Crown Copyright material reproduced with the permission of the
Controller, HMSO (under the terms of the Click Use licence)
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2012935804
ISBN 978–0–19–960640–5
Printed in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Preface to the Sixth Edition
Th e sixth edition of this book is—like its immediate predecessors—a slightly expanded
and modifi ed version of the previous edition.
Th ere have been some minor substantive changes to many parts of the book to take
account of developments since 2009, but I have again tried to resist the temptation to turn
the book into an exhaustive catalogue of every case or statutory provision there has ever
been on particular topics. An (in my opinion!) insightful review of the fourth edition
characterised it as more concerned with analysing principle than with describing detail,
and I would hope that comment remains accurate in respect of this new edition. Th at
means, of course, that much detailed material which many observers would regard as
important is omitted. Th ose of us who teach public law must now perhaps be reconciled
to the reality that there is just too much material to be fi tted within a year long class on the
subject. Th e material in this book refl ects the choices I have made in respect of the course
I teach to my students at City University Law School.
I did not feel tempted at any point to make the book ‘easier’ in any substantive intel-
lectual sense. I remain happily wedded to the view that public law is a challenging, multi-
disciplinary topic, and that attempts to simplify it in analytical terms do a disservice
both to the subject and to the reader. Th e sixth edition therefore retains the fi rst edition’s
initial concern to provide a cross-disciplinary introduction to the subject of public law,
with a continuing emphasis placed on material drawn from political theory, political sci-
ence and legal and social history. Insofar as the book has a particular target audience,
that audience would be able and industrious undergraduate and graduate students who
have an innate enthusiasm for thinking about the moral and political underpinnings of
our constitutional system, a willingness to read widely and critically around the core of
their subject, and also a readiness to accept that a good deal of what they learn about that
subject will seem to be (at least initially) confusing and contradictory.
With that particular audience in mind, I have signifi cantly expanded the examination
given in chapter three to the defensibility of the various techniques of statutory interpre-
tation used by the courts, and to the legitimacy of innovation at common law. Chapter
twenty-one, which introduced readers to the Human Rights Act 1998, has been substan-
tially redraft ed to correct what I would now regard as a number of unhappily imprecise
assertions in its predecessor. Th ere is also in chapter twenty-two a substantial new section
addressing the impact of the Human Rights Act on the content and methodology of the
common law. Both of those addenda have been prompted in part by the very positive and
oft en illuminating responses made by my graduate students in classes and term papers
dealing with those topics, and also in part by the fact that the topics touch upon matters
with which I have been involved as counsel in the higher courts.
Th e lists of recommended reading at the end of each chapter have been expanded a lit-
tle. Th e readings continue to be organised in an order which refl ects my own view of their
value. Th e online resource centre (ORC) has also been enlarged to refl ect the amended
content of the book, and continues to include a selection of seminars that I have used
over the years for various topics and a series of revision sheets (which have been styled as
‘mind maps’) which may prove of some assistance to students who are looking to fasten an
impression of the topography of particular topics in their respective minds.
vi PREFACE TO THE SIXTH EDITION
My thanks are again due to editorial staff at OUP, especially Tom Young, for their
handling of the messy business of turning my draft s into a fi nished text. Th ose eff orts
notwithstanding, I do not doubt that there will be some errors in the text for which of
course I accept responsibility. I hope they prove to be minor and do not detract from the
overall impact that the book may have.
Ian Loveland
London, Spring 2012
Outline Contents
PART ONE THEORETICAL PRINCIPLES
1 Defi ning the Constitution? 3
2 Parliamentary Sovereignty 21
3 The Rule of Law and the Separation of Powers 50
4 The Royal Prerogative 86
PART TWO THE INSTITUTIONS AND OPERATION OF
NATIONAL GOVERNMENT
5 The House of Commons 119
6 The House of Lords 155
7 The Electoral System 194
8 Parliamentary Privilege 228
9 Constitutional Conventions 260
PART THREE THE GEOGRAPHICAL SEPARATION OF POWERS
10 Local Government 301
11 The European Economic Community 1957–1986 338
12 The European Community after the Single European Act 388
13 The Governance of Scotland and Wales 421
PART FOUR ADMINISTRATIVE LAW
14 Substantive Grounds of Judicial Review 445
15 Procedural Grounds of Judicial Review 475
16 Challenging Governmental Decisions: The Process 510
17 Locus Standi 535
viii OUTLINE CONTENTS
PART FIVE HUMAN RIGHTS
18 Human Rights I: Traditional Perspectives 559
19 Human Rights II: Emergent Principles 588
20 Human Rights III: New Substantive Grounds of Review 616
21 Human Rights IV: The Human Rights Act 1998 636
22 Human Rights V: The Impact of the Human Rights Act 1998 661
23 Human Rights VI: Governmental Powers of Arrest and Detention 709
24 Conclusion 744
Contents
Preface to the Sixth Edition v
Table of Legislation xxi
Table of Treaties and Conventions xxvii
List of Cases xxix
Part One Theoretical Principles
1 Defi ning the Constitution? 3
I. The meaning(s) of ‘democracy’? 4
What is democratic governance? Some hypothetical examples 5
A constitution as a social and political contract? 7
II. The fi rst ‘modern’ constitution? 9
The problem—majoritarianism 10
The solutions—representative government, federalism, a separation of
powers, and supra- legislative ‘fundamental’ rights 10
Conclusion 19
Suggested further reading 20
Academic and political commentary 20
Case law and legislation 20
2 Parliamentary Sovereignty 21
Pre- 1688—natural or divine law 21
The Diceyan (or orthodox) theory 22
The political source of parliamentary sovereignty—the ‘glorious revolution’ 24
I. Legal authority for the principle of parliamentary sovereignty 29
Substance or procedure? the enrolled Bill rule 30
The doctrine of implied repeal 31
Inconsistency with international law 32
II. Entrenching legislation—challenges to the orthodox position 34
Jennings’ critique and the ‘rule of recognition’ 35
Is parliamentary sovereignty a British or English concept? 43
Women’s enfranchisement 46
Conclusion 48
Suggested further reading 49
Academic and political commentary 49
Case law and legislation 49
3 The Rule of Law and the Separation of Powers 50
I. The Diceyan perspective: the rule of law in the pre- welfare state 50
Entick v Carrington (1765) 52