Q&A Constitutional and Administrative Law, 4th Edition (Q&A Series)

434 Pages·2003·2.49 MB·English

by  Fenwick

Q&A Series

Constitutional
and
Administrative
Law
FOURTH EDITION
FOURTH EDITION
Cavendish
Publishing
Limited
London • Sydney • Portland, Oregon

Q&A Series

Constitutional
and
Administrative
Law
FOURTH EDITION
Helen Fenwick
BA, LLB, Professor of Law
University of Durham
and
Gavin Phillipson
BA, LLM (Cantab), Solicitor
Lecturer in Law
University of Durham
Cavendish
Publishing
Limited
London • Sydney • Portland, Oregon
Fourth edition first published in Great Britain 2003 by
Cavendish Publishing Limited, The Glass House,
Wharton Street, London WC1X 9PX, United Kingdom
Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080
Email: [email protected]
Website: www.cavendishpublishing.com
Published in the United States by Cavendish Publishing
c/o International Specialized Book Services,
5804 NE Hassalo Street, Portland,
Oregon 97213–3644, USA

Published in Australia by Cavendish Publishing (Australia) Pty Ltd
3/303 Barrenjoey Road, Newport, NSW 2106, Australia

© Fenwick, H & Phillipson, G 2003
First edition 1993
Second edition 1995
Third edition 1999
Fourth edition 2003
All rights reserved. No part of this publication may be reproduced, stored in a
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You must not circulate this book in any other binding or cover
and you must impose the same condition on any acquirer.

British Library Cataloguing in Publication Data
Fenwick, Helen
Constitutional and administrative law—4th ed—
(The Cavendish Q & A series)
1 Administrative law—Great Britain 2 Great Britain—Constitutional law
I Title II Phillipson, Gavin
342.4'1

Library of Congress Cataloguing in Publication Data
Data available
ISBN 1-85941-622-5

1 3 5 7 9 10 8 6 4 2
Printed and bound in Great Britain
PREFACE

We have often come across students who have a sound grasp of legal
principles and have put in quite a lot of work on constitutional law and yet
do not feel confident when faced with the end of year examination. This book
is written in response to the pleas of such students for more guidance as to
the best means of presenting their knowledge in the exam, and it is hoped
that it may alleviate at least some of the stress they experience. It is written at
a time when the very far-reaching programme of constitutional reform
introduced by the Labour government is largely in place; it affords extensive
coverage to this programme and its implications for the UK’s radically
changing constitution.
The law is stated as at 1 September 2002; however, updates have been
made up to January 2003.
Helen Fenwick and Gavin Phillipson
University of Durham
January 2003

v

CONTENTS
Preface v
Introduction ix
Table of Cases xiii
Table of Statutes xxvii
Table of European Legislation xxxiii
1 The Characteristics of the British Constitution 1
2 Parliamentary Sovereignty, Human Rights and the European Union 33
3 The House of Commons 79
4 The House of Lords 127
5 Prerogative Powers 155
6 The Executive 169
7 Judicial Review 193
8 Ombudsmen 233
9 Protection for Human Rights 249
10 Official Secrecy and Freedom of Information 273
11 Freedom of Expression 303
12 Police Powers, Individual Liberty and the Rights of Suspects 321
13 Freedom of Assembly and Public Order 365
Index 389

vii

INTRODUCTION
This book is intended to be of help to students studying constitutional and
administrative law who feel that they have acquired a body of knowledge but
do not feel confident about using it effectively in exams. This book sets out to
demonstrate how to apply the knowledge to the question and how to structure
the answer. Students, especially first year students, often find the technique of
answering problem questions particularly hard to grasp, so this book contains
a large number of answers to such questions. This technique is rarely taught in
law schools and the student who comes from studying science or maths ‘A’
levels may find it particularly tricky. Equally, a student who has studied
English literature may find it difficult to adapt to the impersonal, logical,
concise style which problem answers demand. It is hoped that this book will be
particularly useful at exam time but may also prove useful throughout the year.
The book provides examples of the kind of questions which are usually asked
in end of year examinations, along with suggested solutions. Each chapter
deals with one of the main topics covered in constitutional and administrative
law or public law courses and contains typical questions on that area. The aim
is not to include questions covering every aspect of a course, but to pick out the
areas which tend to be examined because they are particularly contentious or
topical. Many courses contain a certain amount of material which is not
examined, although it is important as providing background knowledge.
Problem and essay questions
Some areas tend to be examined only by essays, some mainly although not
invariably by problems, and some by either. The questions chosen reflect this
mix, and the introductions at the beginning of each chapter discuss the type
of question usually asked. It is important not to choose a topic and then
assume that it will appear on the exam paper in a particular form unless it is
in an area where, for example, a problem question is never set. If it might
appear as an essay or a problem, revision should be geared to either
possibility: a very thorough knowledge of the area should be acquired but
also an awareness of critical opinion in relation to it.
Length of answers
The answers in this book are about the length of an essay that a good student
would expect to write in an exam. Some are somewhat longer and these will
also provide useful guidance for students writing assessed essays which
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