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General Principles of
Constitutional and
Administrative Law
Fourth Edition
John Alder
General Principles of Constitutional and Administrative Law
Palgrave Macmillan Law Masters
Series Editor Marise Cremona
Stephen Judge
BUSINESS LAW (2nd edn)
Janet Dine
COMPANY LAW (4th edn)
John Alder
GENERAL PRINCIPLES OF CONSTITUTIONAL AND ADMINISTRATIVE
LAW (4th edn)
Ewan McKendrick
CONTRACT LAW (4th edn)
Priscilla Sarton
CONVEYANCING (3rd edn)
Jonathan Herring
CRIMINAL LAW (3rd edn)
Debbie J. Lockton
EMPLOYMENT LAW (4th edn)
Raymond Emson
EVIDENCE
Kate Standley
FAMILY LAW (3rd edn)
David Cowan
HOUSING LAW AND POLICY
Tina Hart and Linda Fazzani
INTELLECTUAL PROPERTY LAW (2nd edn)
Kate Green and Joe Cursley
LAND LAW (4th edn)
Margaret Wilkie and Godfrey Cole
LANDLORD AND TENANT LAW (4th edn)
Jo Shaw
LAW OF THE EUROPEAN UNION (3rd edn)
Catherine Rendell
LAW OF SUCCESSION
Ian McLeod
LEGAL METHOD (4th edn)
Ian McLeod
LEGAL THEORY
Robert East
SOCIAL SECURITY LAW
Alastair Mullis and Ken Oliphant
TORTS (3rd edn)
General Principles of
Constitutional and
Administrative Law
Fourth Edition
John Alder
Professor of Law, University of Newcastle upon Tyne
With contributions from
Michael Haley, Barry Hough, Richard Mullender
Law series editor:
Marise Cremona
Professor of European Commercial Law,
Centre for Commercial Law Studies, Queen Mary, University of London
& John Alder, 1989, 1994, 1999, 2002
All rights reserved. No. reproduction, copy or transmission of this
publication may be made without written permission.
No paragraph of this publication may be reproduced, copied or transmitted
save with written permission or in accordance with the provisions of the
Copyright, Designs and Patents Act 1988, or under the terms of any licence
permitting limited copying issued by the Copyright Licensing Agency,
90 Tottenham Court Road, London W1T 4LP.
Any person who does any unauthorised act in relation to this publication
may be liable to criminal prosecution and civil claims for damages.
The author has asserted his right to be identified as the author of this work
in accordance with the Copyright, Designs and Patents Act 1988.
Published 2002 by
PALGRAVE MACMILLAN
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PALGRAVE MACMILLAN is the global academic imprint of the Palgrave
Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd.
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ISBN 0–333–97164–7
This book is printed on paper suitable for recycling and made from fully
managed and sustained forest sources.
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Typeset by Aarontype Limited
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Printed and bound in Great Britain by
Creative Print & Design (Wales), Ebbw Vale
Preface xi
Table of Cases xiii
Table of Statutes xxxvi
Part I FUNDAMENTAL PRINCIPLES
1 The Nature of Constitutional Law 3
1.1 Introduction; What is a Constitution? 3
1.2 Civic Republicanism 8
1.3 Representative Democracy 10
Summary 14
Further Reading 15
Exercises 16
2 Constitutional Values 17
2.1 The Nation State, the Enlightenment and
the Social Contract 17
2.2 Incommensurables and Uncombinables 19
2.3 Hobbes: Constrained Individualism 24
2.4 Locke: Liberalism and Majoritarianism 27
2.5 Rousseau: Communitarianism 29
2.6 Hume: A Common Law Approach 32
2.7 Liberalism and Utilitarianism 32
Summary 37
Further Reading 37
Exercises 38
3 The Sources of the Constitution 39
3.1 Written and Unwritten Constitutions 39
3.2 The Common Law Constitution 44
3.3 Conventions (Barry Hough) 47
3.4 Law and Convention 54
3.5 Codification of Conventions (Barry Hough) 57
3.6 The Dignified and Efficient Constitution 58
Summary 59
Further Reading 61
Exercises 61
Contents
v
4 The Structure of the UK Government: An Overview 62
4.1 The Informal Constitution 62
4.2 Crown v. Parliament: Historical Outline 64
4.3 The Growth of the Executive 69
4.4 The Concept of the State 70
4.5 The Legislature 74
4.6 The Central Executive 75
4.7 Parliamentary Government 77
4.8 ‘Hollowed-Out’ Government 79
4.9 Ethics in Government 81
4.10 The Judiciary 83
4.11 The Privy Council 84
4.12 Citizenship 85
4.13 Constitutional Reform 88
Summary 89
Further Reading 90
Exercises 91
5 Constitutionalism: The Rule of Law and the Separation
of Powers 92
5.1 Introduction: The Nature and Purpose of the
Rule of Law 92
5.2 The Core Meaning of the Rule of Law 94
5.3 The Extended Rule of Law 95
5.4 Dicey’s Version of the Rule of Law 97
5.5 The International Rule of Law 101
5.6 Dissent and the Rule of Law 104
5.7 The Separation of Powers 105
Summary 118
Further Reading 119
Exercises 119
6 Parliamentary Supremacy 121
6.1 The Meaning of Parliamentary Supremacy 122
6.2 Historical Development 123
6.3 The Application of Parliamentary Supremacy 125
6.4 The Ingredients of an Act of Parliament 127
6.5 Dividing Parliamentary Supremacy? 129
6.6 Parliamentary Supremacy and the Rule of Law 136
6.7. Conclusion 140
6.8 Note: Delegated Legislation 140
Summary 141
Further Reading 142
Exercises 142
vi Contents
Part II THE GEOGRAPHICAL DISTRIBUTION OF POWER
7 Federalism and Devolution 147
7.1 Introduction: Federal and Devolved Government 147
7.2 Scotland 150
7.3 Northern Ireland 154
7.4 Wales 160
7.5 The Channel Islands and the Isle of Man 162
7.6 British Overseas Territories 163
Summary 163
Further Reading 164
Exercises 164
8 Local Government 165
8.1 Local Authority Organisation and Functions 166
8.2 Structure and Powers 168
8.3 Control by Central Government 169
8.4 Internal Constitution 170
8.5 Party Politics 172
8.6 Finance 174
8.7 The Local Ombudsman 177
Summary 179
Further Reading 179
Exercises 180
9 The European Union 181
9.1 The Nature of the European Union 181
9.2 Community Institutions 184
9.3 Democracy and the European Union 192
9.4 Federalism and the European Union 194
9.5 Community Law and National Law 196
Summary 204
Further Reading 205
Exercises 205
Part III GOVERNMENTAL INSTITUTIONS
10 Parliament 209
10.1 Historical Development 209
10.2 The Meeting of Parliament 214
10.3 The Functions of Parliament 215
10.4 Parliamentary Privilege and Standards 220
Summary 232
Further Reading 234
Exercises 234
Contents vii
11 The Composition of Parliament and Parliamentary Elections 236
11.1 The House of Lords 236
11.2 House of Lords Reform 241
11.3 Membership of the House of Commons 243
11.4 The Electoral System 245
11.5 The Conduct of Campaigns 257
11.6 Election Disputes 262
Summary 262
Further Reading 263
Exercises 264
12 Parliamentary Procedure 265
12.1 Introduction 265
12.2 The Speaker 267
12.3 Legislative Procedure 268
12.4 Financial Procedure 275
12.5 Supervision of the Executive 279
12.6 Redress of Grievances 284
Summary 287
Further Reading 288
Exercises 288
13 The Crown 290
13.1 The Nature of the Crown 290
13.2 The Queen 292
13.3 Crown Immunities 296
13.4 The Royal Prerogative 299
Summary 308
Further Reading 309
Exercises 309
14 Ministers and Departments 311
14.1 The Prime Minister 311
14.2 The Cabinet 313
14.3 Ministers 315
14.4 Government Departments 317
14.5 Ministerial Responsibility (Barry Hough) 318
14.6 Civil Servants 329
14.7 Executive Agencies and the ‘New Management’ 334
14.8 Non-Departmental Public Bodies 337
Summary 340
Further Reading 341
Exercises 342
viii Contents
15 The Police and the Armed Forces 344
15.1 Introduction 344
15.2 Police Organisation and Control 344
15.3 Police Accountability 349
15.4 The Armed Forces 355
Summary 357
Further Reading 358
Exercises 358
Part IV THE CITIZEN AND THE STATE
16 Judicial Review of the Executive: The Grounds of Review 363
16.1 Introduction: Constitutional Basis of Judicial Review 363
16.2 Appeal and Review 366
16.3 Classification of the Grounds of Review 368
16.4 Illegality 369
16.5 Irrationality/Unreasonableness 382
16.6 Procedural Impropriety 386
Summary 398
Further Reading 400
Exercises 400
17 Judicial Review Remedies 403
17.1 The Range of Remedies 403
17.2 The Judicial Review Procedure 407
17.3 Choice of Procedure: Public and Private Law 411
17.4 The Exclusion of Judicial Review 414
Summary 416
Further Reading 416
Exercises 417
18 Human Rights and Civil Liberties 419
18.1 Introduction: The Bill of Rights Debate 419
18.2 The Common Law 423
18.3 The European Convention on Human Rights 427
18.4 The Human Rights Act 1998 433
18.5 Restrictions on Protected Rights: Reasoning Methods 444
Summary 454
Further Reading 455
Exercises 456
19 Freedom of Political Expression 458
19.1 Introduction: Justifications for Freedom of Expression
(with contribution by Richard Mullender) 458
19.2 The Status of Freedom of Expression 462
19.3 ‘Prior Restraint’ and Censorship 464
Contents ix
19.4 Public Order: Demonstrations and Meetings 474
19.5 Justices’ Powers of Prior Restraint 484
Summary 485
Further Reading 485
Exercises 485
20 Freedom of Expression and Competing Private Interests
(Richard Mullender) 489
20.1 Introduction 489
20.2 Defamation 490
20.3 Breach of Confidence 502
20.4 Invasion of Privacy 503
20.5 Tensions in the Law 507
20.6 Proportionality: a Mediating Principle 508
20.7 A Hierarchy of Rights and the Contingencies of Litigation 509
Summary 510
Further Reading 510
Exercises 512
21 Police Powers of Arrest and Search (Michael Haley) 513
21.1 Introduction 513
21.2 Violation of PACE and Codes 515
21.3 Pre-Arrest Questioning 519
21.4 Stop and Search 519
21.5 Arrest 526
21.6 Search Before and Following Arrest 532
21.7 Police Searches during the Investigation of Crime 534
21.8 ‘In the Station’: an Outline 543
Summary 544
Further Reading 545
Exercises 545
22 State Secrecy 547
22.1 Voluntary Disclosure of Information 549
22.2 Statutory Rights to Information 550
22.3 The Freedom of Information Act 2000 551
22.4 Unlawful Disclosure of Government Information 555
22.5 Public Interest Immunity 561
22.6 Security and Covert Intelligence 564
Summary 571
Further Reading 572
Exercises 572
Bibliography 574
Index 592
x Contents
The aims of this edition remain the same as those of previous editions: namely,
to explain and discuss critically the general principles of the constitutional
law and administrative law of the UK and to identify their historical and
political foundations. This edition has been recast and substantially rewritten
and expanded in order to take account of major changes in the law, notably
the burgeoning case law generated by the Human Rights Act 1998, and to
consider recent scholarship and political developments. I have tried to make
the book clearer and easier to use both as an introductory text for law degree
students and as a self-contained text for more basic courses. I have also tried to
emphasise difficult and controversial issues.
The law and its political foundations are constantly changing. Since the last
edition in late 1999, litigants have begun to exploit the Human Rights Act 1998
in a variety of contexts. These include, for example, immigration, asylum, and
prisoners’ rights, the eviction of tenants, pawnbrokers’ rights, access to adoption records, victims’ rights, press freedom and euthanasia. The Alconbury case
in particular involved the relationship between political decisions taken by a
minister and the rule of law. It is too early to suggest any general tendencies
towards a distinctively British human rights jurisprudence. On the one hand,
the Strasburg case law seems to have been systematically applied and a moderate approach adopted. On the other hand, significant differences of approach
are emerging between individual judges.
Other developments have been influenced by the ‘Nolan Principles of Public
Life’ which have pervaded several areas of law, including bringing political
parties within a legal regime. There have also been changes in electoral law and
developments in the law of judicial review, notably in relation to the doctrines
of ‘unreasonableness’ and legitimate expectations and the bias rule. There has
also been important new literature including extra-judicial writings from senior
judges and dealing with the influence of the common law on the constitution.
Other developments have been disappointing. The long-awaited reform
of the House of Lords is unfinished business and the Wakeham Report raises
concerns about the dangers to democracy of a legislative chamber which includes persons hand-picked by those already in positions of power. There have
been limited reforms in local government law which have to some extent
strengthened local democracy although, characteristically the centre retains
comprehensive powers. There have been a desultory Freedom of Information Act 2000, and increased state powers in relation to official surveillance,
police investigations and public order. Some of these were a response to the
terrorist attack on the World Trade Centre on 11 September 2001 but go well
beyond terrorism.
Preface
xi
The main standpoint of the book is that constitutional law pre-eminently
concerns the management of disagreement about the exercise of power.
As Holmes J remarked, ‘the Constitution is made for people of fundamentally
different views’ (Lochner v. New York (1905), 19 US 45 at 767). Hence, in a
democracy, the task of constitutional law is to provide mechanisms that
prevent one set of values from being permanently dominant while at the same
time trying to keep order and to adjudicate fairly between competing pretenders to power.
Part I has been substantially rearranged and discusses fundamental principles and concepts, including revised treatment of the rule of law to reflect
developments in scholarship. In particular the introductory chapters have been
recast. I have also attempted to provide an overview of the history, structure
and main concepts of the UK constitution in the hope that this will signpost
later chapters. Part II is new, in which I have brought together topics relating
to the geographical separation of powers, namely, devolution, local government and the European Union. Part III discusses the main institutions of government, namely Parliament, the Crown, ministers, the civil service, the armed
forces and police. Part IV concerns the citizen and the state, and includes an
expanded treatment of judicial review of administrative action and human
rights together with a more detailed discussion of freedom of expression, police
powers and state secrecy. However the increasing legislation relating to public
order, terrorism, immigration and state surveillance have made detailed treatment of particular civil liberties unrealistic as part of a general constitutional
law course. For this reason I have concentrated in this edition upon general constitutional principles The case law is, as far as possible up to date to
10 April 2002.
I am grateful to many people who directly and indirectly helped me to
produce this edition. These include, pre-eminently, Michael Haley of Keele
University who prepared Chapter 21, Barry Hough of Southampton Institute
who made substantial contributions to Chapters 3, 13 and 14 and Richard
Mullender of Newcastle Law School who prepared Chapter 20. I am also
indebted to Rui Verde of the Universidade Independente Lisbon who critiqued
several chapters and made invaluable suggestions and to Ann Sinclair of
Newcastle Law School who revised the bibliography. I am of course wholly
responsible for the mistakes that remain.
JOHN ALDER
Newcastle, April 2002
xii Preface
A v. B plc and Another, The Times, November 2 2001 443, 506
A v. Sunday People, [2002] Independent, 28 March 506
A v. U.K. (1998) 27 E.H.R.R. 611 443
A (Re) (children) (conjoined twins: surgical separation ) [2000]
4 All ER 961 22
Abdulaziz v. U.K. [1985] 7 E.H.R.R 471 431, 453
Abrams v. United States [1919] 250 U.S. 616, 346
Adam v. Ward [1917] AC 309 355, 491, 499
Adan v. Newham BC [2002] 1 All ER 931 373, 396,430,436
Adegbeno v. Akintola [1963] AC 614 295
A-G for Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 378
A-G for New South Wales v. Perpetual Trustee Co. Ltd [1955]
1 All ER 846 345
A-G for New South Wales v. Trethowan [1932] AC 526 133
A-G for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 432
A-G of Trinidad and Tobago v. Phillips [1995] 1 All ER 93 244
A-G v. Associated Newspapers Ltd. [1994] AC 238 425
A-G v. BBC [1981] AC 303 117
A-G v. Blake [1998] 1 All ER 833 559
A-G v. Crayford UDC [1962] Ch 575 370
A-G v. De Keyser’s Royal Hotel Ltd [1920] AC 508 305, 306, 308
A-G v. de Winton [1906] 2 Ch 1060 135
A-G v. English [1983] 1 AC 116 466
A-G v. Fulham Corporation [1921] 1 Ch 440 369
A-G v. Guardian Newspapers Ltd (No. 2) [1988]
3 All ER 545 425, 458, 502, 558
A-G v. Guardian Newspapers Ltd [1987] 1 WLR 1048 117, 369, 446,
466, 558
A-G v. Jonathan Cape [1975] 3 All ER 489 56, 320, 559
A-G v. Leveller Magazine Ltd [1979] AC 400 468
A-G v. News Group Newspapers [1987] AC 40 467
A-G v. News Group Newspapers [1988] 2 All ER 906 467
A-G v. Observer Ltd [1988] 1 All ER 385 466
A-G v. Punch Ltd [2001] 2 All ER 655 560
A-G v. Sport Newspapers Ltd [1992] 1 All ER 503 467
A-G v. Times Newspapers Ltd [1974] AC 273 466
A-G v. Times Newspapers Ltd [1991] 2 All ER 398 466, 560
A-G v. Times Newspapers [2001] E.W.C.A. Civ. 97 560
A-G v. Wilts United Dairies [1921] 37 TLR 884 301
Air Canada v. Secretary of State for Trade [1983] 2 AC 394 562, 563
Airdale N.H.S. Health Trust v. Bland [1993] 1 All ER 821 21
Airey v. Ireland (1979) 2 E.H.R.R 305 9, 446
Albert v. Lavin [1982] AC 546 527
Table of Cases
xiii
Alconbury Developments v. Secretary of State for the
Environment Transport and the Regions, see R. (Alconbury)
v. Secretary of State
Alfred Crompton v. Customs and Excise [1974] AC 533 563
Amphitrite Case [1921] 3 KB 500 297
American Cynamid Co v. Ethicon Ltd [1975] AC 396 467
Anisminic Ltd v. Foreign Compensation
Commission [1969] 2 AC 147 137, 369, 371–372, 415
Arrowsmith v. Jenkins [1963] 2 QB 561 476
Ashby v. White [1703] 2 Ld Raym 938 223, 231
Ashworth Hospital v. MGN Ltd [2001] 1 All ER 991 561
Askoy v. Turkey [1996] 23 E.H.R.R 553 432
Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948] 1 KB 223 382
Aston Cantlow and Wilmcote with Billesley Parochial Church
Council v. Wallbank [2001] 3 All ER 393 431, 432
Auckland Harbour Board v. R [1924] AC 318 275
Ayr Harbour Trustees v. Oswald [1883] 8 App Case 623 377
B v. France (1992) ECHR Ser. A vol. 232-C 328
Baker v. Carr 369 U.S. 186 [1962] 306
Baker v. Oxford [1980] RTR 315 521
Bank Voor Handel en Scheepvaart NV. v. Administrator of Hungarian
Property [1954] AC 584 58
Barnard v. National Dock Labour Board [1953] 1 All ER 1113 387
Barrett v. Enfield Borough Council [1999] 3 All ER 193 203, 405
Bates Case [1606] 2 St. Tr. 372 300
Bath Society v. Secretary of State for the Environment [1992]
1 All ER 28 300
BBC v. Johns [1965] Ch 32 301
Beach v. Freeson [1972] 1 QB 14 226
Beatty v. Gillbanks [1882] 9 QBD 308 479-480
Bentham v. Netherlands [1985] 8 E.H.R.R. 1 363, 392, 428, 446
Berkeley v. Secretary of State for the Environment [2000]
3 All ER 897 14, 387
Berman v. Parker 348 U.S. 26 (1954).
Bilston Corporation v. Wolverhampton Corporation [1942] Ch. 391 222
Blackburn v. A-G [1971] 2 All ER 1380 130, 305, 306
Blackpool Corporation v. Locker [1948] 1 All ER 85 434
Blackshaw v. Lord [1984] QB 1 500
Boddington v. British Transport Police [1998] 2 WLR 639 104, 365,
367, 413
Bogner Regis U.D.C. v. Campion [1972] 2 All ER 61 493
Bonnard v. Perryman 1891B4 All ER Rep 965 492
Borgers v. Belgium (1991) ECHR Ser. A 214-B 562
Bozkurt (see R. (Bozkurt))
Bowles v. Bank of England [1913] 1 Ch 57 126, 223, 276
Bowman v. Secular Society [1917] AC 406 471
Bowman v. UK (1998) 26 E.H.R.R 1 258
Bradlaugh v. Gossett (1884) 12 QBD 271 223
Brandenberg v. Ohio 395 U.S. [1969] 464, 475
xiv Table of Cases