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Constitutional and Administrative Law
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Mô tả chi tiết
Constitutional and Administrative Law, now in its fifth edition, offers an
up-to-date, interesting and inquiring treatment of this wide-ranging and
dynamic subject. This text is designed to meet the needs of modular course
structures at undergraduate and diploma level. The mass of new legislation
in the area is considered alongside the various political, social and cultural
factors that have shaped them.
This new edition has been thoroughly revised and fully updated to include:
• Details of the Treaty of Lisbon and further developments relating to EU
enlargement and reform of its decision-making processes
• The continuing debate and further proposals for reform of the House of
Lords
• Recent changes to the parliamentary and legislative processes including
legislative reform orders
• Important case law developments concerning the rules of parliamentary
privilege, the extent of the Crown’s remaining legislative prerogatives and
of the prerogative in foreign affairs, the extra-territorial application of the
Human Rights Act, and judicial interpretation of the recent anti-terrorist
legislation
• Content of the new broadcasting code
• The newly created system of statutory tribunals
In addition the text offers a wealth of study support that includes:
• Clearly distinguished case summaries that enable students to quickly
recognise the key cases and differentiate them from surrounding
commentary
• Chapter summaries that highlight the main points covered in each
chapter, cementing understanding
• Further reading lists at the end of each chapter that direct students to
subject-specific resources to enrich understanding
• Easy-to-read, two-colour text design with tabbed glossary and
pedagogical features for quick reference
• Marginal cross-references that help students understand how the material
fits together
About the author
alex carroll, MPhil, LLB, Cert. Ed, was formerly Senior Lecturer in
Law at Manchester Metropolitan University. He has also taught at the
University of Manchester, Keele University, and the University of
Hong Kong.
constitutional and
administrative law carr
oll
5 th
editi o n
www.pearson-books.com
constitutional and
administrative law
alex carroll
5th edition
Cover © Getty Images
5th edition
CASE
N A V I G AT O R
POWERED BY
alex carroll
constitutional and
administrative law
www.mylawchamber.co.uk/carroll
This text is supported by a mylawchamber
website which includes:
For students: regular case and legislation
updates, web links, interactive self-test
questions, practice assessment questions, an
online glossary and flashcards for key terms.
For lecturers: a testbank of multiple-choice
questions that can be used to assess students’
progress.
Visit www.pearsoned.co.uk/casenavigator
for unique online support that helps improve
case reading and analysis skills in
Constitutional and Administrative Law.
The LexisNexis element of Case Navigator is only
available to those who currently subscribe to
LexisNexis Butterworths services.
powered by
CASE
N A V I G AT O R
CVR_CARR9116_05_SE_CVR.indd 1 25/3/09 10:14:33
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Administrative Law
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ALEX CARROLL
Manchester Metropolitan University
Constitutional and
Administrative Law
Fifth Edition
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Pearson Education Limited
Edinburgh Gate
Harlow
Essex CM20 2JE
England
and Associated Companies throughout the world
Visit us on the World Wide Web at:
www.pearsoned.co.uk
First published 1998
Second edition published 2002
Third edition published 2003
Fourth edition published 2007
Fifth edition published 2009
© Financial Times Professional 1998
© Pearson Education Limited 2002, 2003, 2007, 2009
The right of Alex Carroll to be identified as author of this work has been
asserted by him in accordance with the Copyright, Designs and Patents Act 1988.
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, electronic,
mechanical, photocopying, recording or otherwise, without either the prior
written permission of the publisher or a licence permitting restricted copying
in the United Kingdom issued by the Copyright Licensing Agency Ltd,
Saffron House, 6–10 Kirby Street, London EC1N 8TS.
Crown Copyright material is reproduced with the permission of the Controller
of HMSO and the Queen’s Printer for Scotland.
Law Commission Reports are reproduced under the terms of the Click-Use Licence.
ISBN: 978-1-4058-9911-6
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Carroll, Alex, 1947–
Constitutional and administrative law / Alex Carroll. – 5th ed.
p. cm.
ISBN 978-1-4058-9911-6 (pbk.)
1. Constitutional law – Great Britain. 2. Adminstrative law – Great Britain. I. Title.
KD3930.C37 2009
342.41–dc22
2009006526
10 9 8 7 6 5 4 3 2 1
13 12 11 10 09
Typeset in 9/12pt Stone Serif by 35
Printed by Ashford Colour Press Ltd., Gosport
The publisher’s policy is to use paper manufactured from sustainable forests.
CONA_A01.qxd 3/19/09 3:06 PM Page iv
For my late Mother, Father, and brother John, and for Frances and
‘the boys’ (Joe, Matthew, Daniel and Sam)
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Guided tour xviii
Preface xx
Table of cases xxi
Table of statutes xlii
Part 1 Fundamental principles 1
1 Introduction to constitutional and administrative law 3
2 The characteristics of the constitution 17
3 Sources of constitutional and administrative law 51
Part 2 Parliament and the European Union 69
4 The European Union: institutions of government and
sources of law 71
5 The legislative sovereignty of the Westminster Parliament 93
Part 3 The composition and workings of Parliament 121
6 The franchise and the electorate 123
7 The House of Commons: Members of Parliament 129
8 The House of Commons: principal functions 137
9 The House of Lords 183
10 Parliamentary privilege 209
Part 4 The Executive 225
11 The Prime Minister and Cabinet 227
12 The royal prerogative 247
13 Legal liability of the Crown and public authorities 267
Part 5 Judicial review of administrative action 307
14 The nature of judicial review 309
15 Grounds for judicial review: illegality, irrationality and
procedural impropriety 317
vii
Brief contents
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BRIEF CONTENTS
16 Application for and exclusion of judicial review 359
17 Exclusivity 379
Part 6 Human rights 387
18 The European Convention on Human Rights 389
19 The Human Rights Act 1998 439
20 Police powers, personal liability and privacy 471
21 Restrictions on the rights of freedom of assembly
and association 509
22 Restrictions of the rights of freedom of expression
and information 529
23 Freedom and emergency powers 561
Part 7 Tribunals, inquiries and complaints procedures 583
24 Tribunals and inquiries 585
25 Ombudsmen 605
Glossary 621
Index 634
viii
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Contents
Guided tour xviii
Preface xx
Table of cases xxi
Table of statutes xlii
Part 1 Fundamental principles
1 Introduction to constitutional and administrative law 3
What is a constitution? 3
The British constitution 3
The cultural dimension 4
The European dimension 5
The terminology of constitutional and administrative law 6
The geography of the constitution 12
Summary 14
References 14
Further reading 15
2 The characteristics of the constitution 17
Introduction 17
The unwritten constitution 17
Flexibility 20
Unitary 22
Constitutional monarchy 29
Bicameral sovereign Parliament 32
Representative democracy 32
Responsible government 35
The separation of powers 36
The rule of law 43
The European dimension 48
Summary 48
References 49
Further reading 49
3 Sources of constitutional and administrative law 51
Introduction 51
Legislation 51
ix
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CONTENTS
Judicial decisions 54
Constitutional conventions 56
European Union law 64
European Convention on Human Rights 65
The law and custom of Parliament 66
Summary 66
References 66
Further reading 67
Part 2 Parliament and the European Union
4 The European Union: institutions of government and
sources of law 71
Origins and development 71
Institutions of law and government 76
Sources of EU law 83
Summary 92
References 92
Further reading 92
5 The legislative sovereignty of the Westminster
Parliament 93
Introduction 93
Application 95
Possible legal limitations 102
Political restraints 108
The relationship between EU law and Acts of Parliament 109
Change in the wind: the Jackson decision 115
Summary 118
References 118
Further reading 118
Part 3 The composition and workings of Parliament
6 The franchise and the electorate 123
Introduction 123
Qualifications 123
Disqualifications 126
Special categories of voters 127
Casting the vote 128
Summary 128
Further reading 128
x
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7 The House of Commons: Members of Parliament 129
Disqualifications 129
Effects of disqualification 132
Role and functions of MPs 132
The relationship between MP and party 134
Summary 136
References 136
Further reading 136
8 The House of Commons: principal functions 137
Introduction 137
Legislation 138
Scrutiny of executive action 158
Scottish and Welsh Affairs at Westminster 171
Northern Irish Affairs at Westminster 171
Financial proceedings 173
Other functions 179
Summary 181
References 181
Further reading 182
9 The House of Lords 183
Origins and composition 183
Types of peers 185
Disclaimer and disqualification 187
Attendance 188
Powers 189
Functions 191
Proposals for reform 197
Summary 207
References 207
Further reading 207
10 Parliamentary privilege 209
Nature and sources 209
Freedom of speech 210
Freedom from arrest 215
Right of the House to regulate its own composition 216
Right of the House to regulate its internal proceedings 217
Right of the House to punish for breach of privilege and contempt
of Parliament 218
The courts and parliamentary privilege 222
The courts and contempt 223
Summary 223
References 223
Further reading 223
CONTENTS
xi
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CONTENTS
Part 4 The Executive
11 The Prime Minister and Cabinet 227
Introduction 227
Choosing a Prime Minister 228
Factors contributing to the power of the Prime Minister 230
The conventional power of dissolution 231
Limits on Prime Ministerial power 235
The Cabinet 239
Summary 244
References 244
Further reading 244
12 The royal prerogative 247
Nature and significance 247
History 249
Principal remaining prerogatives 252
The prerogative and statute 258
The prerogative and the courts 259
Summary 265
References 265
Further reading 265
13 Legal liability of the Crown and public authorities 267
Introduction: the Crown Proceedings Act 1947 267
Statutory duties and powers: private law liability 276
Negligence and statutory powers 278
Remedies 287
Crown privilege 288
From Crown privilege to public interest immunity 293
Pleading public interest immunity: duty or discretion 299
Public interest immunity and criminal proceedings 300
Summary 304
References 304
Further reading 305
Part 5 Judicial review of administrative action
14 The nature of judicial review 309
Introduction 309
The scope of judicial review 311
Jurisdiction and power 311
Review and appeal contrasted 313
xii
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Sources of public law power 314
Summary 315
References 315
Further reading 315
15 Grounds for judicial review: illegality, irrationality and
procedural impropriety 317
Illegality: introduction 317
Illegality and jurisdictional control 317
Illegality and control of discretion 322
Abuse of discretion 331
The concept of reasonableness 333
From reasonableness to irrationality 334
Proportionality 335
Procedural impropriety: introduction 338
Procedural ultra vires 338
The rules of natural justice 339
Summary 356
References 356
Further reading 356
16 Application for and exclusion of judicial review 359
Applying for judicial review: introduction 359
The procedure 359
Remedies 362
Relator proceedings 367
Exclusion of judicial review: introduction 367
Ouster clause 368
Subjectively worded powers 371
Alternative remedies 372
Justiciability 373
Summary 376
References 376
Further reading 377
17 Exclusivity 379
Background 379
The rule in O’Reilly v Mackman 380
Abuse of power as a collateral issue 380
Abuse of power as a defence 381
Abuse of power where statutory remedy provided 382
Judicial review and contractual powers 382
Judicial review beyond statutory or prerogative powers 383
Summary 385
Further reading 385
CONTENTS
xiii
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CONTENTS
xiv
Part 6 Human rights
18 The European Convention on Human Rights 389
Introduction 389
Formulation 389
The Convention in English law prior to the Human Rights Act 391
The European Court of Human Rights 392
General principles of European human rights law 395
The rights protected by the Convention 400
Summary 436
References 436
Further reading 437
19 The Human Rights Act 1998 439
Freedom versus rights 439
Objectives of the 1998 Act 441
Principal provisions 443
Retrospective effect 450
Extra-territorial effect 450
Human rights and judicial review 452
Application of the Human Rights Act 454
Summary 470
References 470
Further reading 470
20 Police powers, personal liberty and privacy 471
Personal freedom: introduction 471
The power to stop and search 472
The power of arrest 477
Detention 484
Interviewing suspects 486
Inadmissible evidence 490
Entry, search and seizure 491
Legal regulation of investigatory powers 500
Remedies for police malpractice 507
Summary 508
References 508
Further reading 508
21 Restrictions on the rights of freedom of assembly and
association 509
Introduction: the freedoms defined 509
Statutory restrictions and marches and assemblies 510
Common law preventative powers 517
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