Q&A ·
Routledge Cavendish Questions & Answers Series
Constitutional &
Administrative
Law
2009–2010
, CONTENTS
Preface vii
Table of Cases ix
Table of Statutes xxv
Table of European Legislation xxxix
Introduction xli
1 The Characteristics of the British Constitution 1
2 Parliamentary Sovereignty, the Human Rights Act and
the European Union 47
3 The House of Commons 99
4 The House of Lords 129
5 Prerogative Powers 157
6 The Executive 177
7 Judicial Review 201
8 Ombudsmen 231
9 Protection for Human Rights: The Human Rights Act 249
10 Freedom of Expression and Freedom of Information 277
11 The Individual and the State: Police Powers and
Counter-terrorist Measures 307
12 Freedom of Assembly and Public Order 365
Index 389
v
, CHAPTER 1
THE CHARACTERISTICS OF THE
BRITISH CONSTITUTION
INTRODUCTION
This chapter concentrates on six particular issues that arise from the distinctive
characteristics of the British constitution: the nature of constitutions in general and
the sense in which the UK can be said to have/not to have a constitution; the
significance of parliamentary sovereignty; the nature of constitutional conventions;
the principles of the rule of law and the separation of powers; the significance of the
devolution settlement; and the desirability of a new codified constitution. These
areas are sometimes treated in textbooks as discrete areas, but they are clearly inter-
linked and will therefore be considered here together. The significance of the Labour
government’s reform package, including most recently the Constitutional Reform
Act 2005, is considered here in general terms, although the significance of the
Human Rights Act 1998 is discussed much more fully in Chapters 2 and 9. The
sovereignty of Parliament and the impact of European Union (EU) law on the UK
constitution are fully considered in Chapter 2.
Checklist
Students should be familiar with the following areas:
• the debate about the nature and functions of a constitution, and the argu-
ment that the UK does not indeed possess one under certain definitions;
• the nature and role of constitutional conventions;
• certain of the most significant conventions – those relating to the exercise of
the royal prerogative, to the working of the Cabinet system, to the relation-
ship between the Lords and the Commons, and to those regulating proceed-
ings in Parliament;
• the doctrine of parliamentary sovereignty and the modification to the
traditional view represented by the impact of EU law;
1
, Q&A CONSTITUTIONAL & ADMINISTRATIVE LAW 2009–2010
• the concept of the rule of law and the impact upon it of the European
Convention on Human Rights (ECHR) and the Human Rights Act 1988
(HRA);
• the doctrine of the separation of powers, and the effect upon this of the
ECHR and HRA and of the Constitutional Reform Act 2005;
• the benefits and defects of the un-codified UK constitution;
• devolution to Scotland, Wales and Northern Ireland, and the ‘West Lothian’
or ‘English’ question and possible solutions;
• the constitutional significance of the HRA;
• the significance of ongoing reform of the House of Lords and of the Free-
dom of Information Act 2000 for the overall balance of powers within the
constitution;
• the significance of proposed further constitutional reform, as set out in the
White Paper, The Governance of Britain, Cm 7342-I (2008).
Question 1
Would you agree that there is no justification for distinguishing between strict law
and convention in the UK constitution and that, therefore, conventions should be
codified in legal form?
Answer plan
This question is often asked in one form or another and is reasonably straight-
forward. It requires the student to consider why features of the constitution
that are not strict laws should be maintained. It should not degenerate into a
list of the main conventions; rather, conventions should be used as examples.
Clearly, it is crucial at the outset to try to distinguish between law and
convention.
Essentially, the following matters should be discussed:
• is there a distinction between law and convention? Jennings’ view should be
contrasted with Dicey’s;
• the relationship between law and conventions;
• the nature of conventions – the difficulty of distinguishing binding usage
from non-binding usage;
• what justification is there for maintaining the distinction between law and
convention, assuming that it exists?
2
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