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British Government and the Constitution

The ¬rst ¬ve editions of this well-established book were written by Colin
Turpin. This new edition has been prepared jointly by Colin Turpin and Adam
Tomkins. This edition sees a major restructuring of the material, as well as a
complete updating. New developments such as the Constitutional Reform Act
2005 and recent case law concerning the sovereignty of Parliament, the Human
Rights Act, counter-terrorism and protests against the Iraq War, among other
matters, are extracted and analysed. While it includes extensive material and
commentary on contemporary constitutional reform, Turpin and Tomkins is a
book that covers the historical traditions and the continuity of the British con-
stitution as well as the current tide of change. All the chapters contain detailed
suggestions for further reading. Designed principally for law students, the book
includes substantial extracts from parliamentary and other political sources, as
well as from legislation and case law. As such it is essential reading also for poli-
tics and government students. Much of the material has been reworked and
with its fresh design the book provides a detailed yet accessible account of the
British constitution at a fascinating moment in its ongoing development.

Colin Turpin is a Fellow of Clare College and Reader Emeritus in Public Law at
the University of Cambridge.

Adam Tomkins is the John Millar Professor of Public Law at the University of
Glasgow. His previous books include Public Law (2003), Our Republican
Constitution (2005) and European Union Law: Text and Materials (2006).
The Law in Context Series

Editors William Twining (University College London) and
Christopher McCrudden (Lincoln College, Oxford)

Since 1970 the Law in Context series has been in the forefront of the movement to
broaden the study of law. It has been a vehicle for the publication of innovative scholarly
books that treat law and legal phenomena critically in their social, political and economic
contexts from a variety of perspectives. The series particularly aims to publish scholarly
legal writing that brings fresh perspectives to bear on new and existing areas of law
taught in universities. A contextual approach involves treating legal subjects broadly,
using materials from other social sciences, and from any other discipline that helps to
explain the operation in practice of the subject under discussion. It is hoped that this ori-
entation is at once more stimulating and more realistic than the bare exposition of legal
rules. The series includes original books that have a di¬erent emphasis from traditional
legal textbooks, while maintaining the same high standards of scholarship. They are
written primarily for undergraduate and graduate students of law and of other disci-
plines, but most also appeal to a wider readership. In the past, most books in the series
have focused on English law, but recent publications include books on European law,
globalisation, transnational legal processes and comparative law.

Books in the Series
Anderson, Schum & Twining: Analysis of Evidence
Ashworth: Sentencing and Criminal Justice
Barton & Douglas: Law and Parenthood
Beecher-Monas: Evaluating Scienti¬c Evidence: An Interdisciplinary Framework for
Intellectual Due Process
Bell: French Legal Cultures
Bercusson: European Labour Law
Birkinshaw: European Public Law
Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal
Cane: Atiyah™s Accidents, Compensation and the Law
Clarke & Kohler: Property Law: Commentary and Materials
Collins: The Law of Contract
Davies: Perspectives on Labour Law
Dembour: Who Believes in Human Rights?: The European Convention in Question
de Sousa Santos: Toward a New Legal Common Sense
Diduck: Law™s Families
Elworthy & Holder: Environmental Protection: Text and Materials
Fortin: Children™s Rights and the Developing Law
Glover-Thomas: Reconstructing Mental Health Law and Policy
Gobert & Punch: Rethinking Corporate Crime
Goldman: Globalisation and the Western Legal Tradition: Recurring Patterns of Law and
Harlow & Rawlings: Law and Administration
Harris: An Introduction to Law
Harris, Campbell & Halson: Remedies in Contract and Tort
Harvey: Seeking Asylum in the UK: Problems and Prospects
Hervey & McHale: Health Law and the European Union
Holder and Lee: Environmental Protection, Law and Policy
Lacey & Wells: Reconstructing Criminal Law
Lewis: Choice and the Legal Order: Rising above Politics
Likosky: Law, Infrastructure and Human Rights
Likosky: Transnational Legal Processes
Maughan & Webb: Lawyering Skills and the Legal Process
McGlynn: Families and the European Union: Law, Politics and Pluralism
Mo¬at: Trusts Law: Text and Materials
Monti: EC Competition Law
Morgan & Yeung: An Introduction to Law and Regulation, Text and Materials
Norrie: Crime, Reason and History
O™Dair: Legal Ethics
Oliver: Common Values and the Public“Private Divide
Oliver & Drewry: The Law and Parliament
Picciotto: International Business Taxation
Reed: Internet Law: Text and Materials
Richardson: Law, Process and Custody
Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision-Making
Scott & Black: Cranston™s Consumers and the Law
Seneviratne: Ombudsmen: Public Services and Administrative Justice
Stapleton: Product Liability
Tamanaha: The Struggle for Law as a Means to an End
Turpin and Tomkins: British Government and the Constitution: Text and Materials
Twining: Globalisation and Legal Theory
Twining: Rethinking Evidence
Twining & Miers: How to Do Things with Rules
Ward: A Critical Introduction to European Law
Ward: Shakespeare and Legal Imagination
Zander: Cases and Materials on the English Legal System
Zander: The Law-Making Process
British Government and
the Constitution
Text and Materials

Sixth edition

Fellow of Clare College and Reader Emeritus in Public Law
University of Cambridge

John Millar Professor of Public Law
University of Glasgow
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
Information on this title: www.cambridge.org/9780521690294

© Colin Turpin and Adam Tomkins 2007

This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

eBook (EBL)
ISBN-13 978-0-511-29514-0
ISBN-10 0-511-29514-6 eBook (EBL)
ISBN-13 978-0-521-69029-4
ISBN-10 0-521-69029-3

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
˜Government without a Constitution is power without a right™
Thomas Paine, Rights of Man (1792)

To Monique, our sons and grandchildren CCT

To Lauren and Oliver AT

Preface Page xvii
Acknowledgements xx
Abbreviations xxiii
Table of Cases xxv
Table of Statutes xlii
Table of European Treaties liii

Part I Constitution, state and beyond
1 The British constitutional order 3
1 Nature of the British constitution 3
(a) Fundamentals and ¬‚uidity 6
(b) Constitutional safeguards 8
2 The constitution and the state 9
3 Constitutional law beyond the state 16
4 Constitutional reform 21
(a) No overall agenda? The coherence of constitutional reform 24
(b) Constitutional continuity 28
(c) Fate and future of constitutional reform 28
(d) A written constitution? 29

2 The ideas of the constitution 33
1 Democracy and the constitution 34
(a) Representative democracy 35
(b) Participatory democracy 37
2 Parliamentary sovereignty 40
(a) Diceyan orthodoxy 42
(b) Territorial extent of sovereignty: post-colonial independence 47
(c) Continuing sovereignty and the ˜new view™ 52
(d) Sovereignty reappraised: three contemporary challenges 61
(i) Membership of the European Union 61
(ii) Incorporation of fundamental rights 62
(iii) Challenge of common law radicalism 66
(e) Conclusions 74
x Contents

3 The rule of law 76
(a) Government under law 77
(b) Equality before the law 88
(c) Discretion and the rule of law 94
(d) The rule of law: wider conceptions? 98
(e) The rule of law and parliamentary sovereignty 102
4 Separation of powers 103
(a) A political ideal or a legal principle? 106
(b) The courts in the constitution: judicial review and judicial
law-making 112
(c) Judicial independence and the position of the Lord Chancellor 115
(d) The courts and Parliament 124
(e) Parliament and the executive 130
5 Accountability 132
(a) Access to information and reasons 135

Constitutional sources 138
1 Legal rules 138
(a) Statute 139
(b) Subordinate legislation 145
(c) Common law 146
(i) Developing constitutional common law: a case study 150
2 Conventions 156
(a) How do conventions arise? 161
(b) Doubtful conventions 163
(i) Going to war 163
(ii) Treaties: the Ponsonby Rule 164
(iii) Law O¬cers™ advice 165
(c) Conventions and laws 165
(d) Patriation of the Canadian constitution: a case study 169

Devolution and the structure of the United Kingdom 180
1 The United Kingdom as a union state 180
(a) Federalism 181
(b) Devolution 187
2 The countries of the United Kingdom 192
(a) England 193
(b) Scotland 195
(i) Scotland in the Union 195
(ii) Government of Scotland before devolution 201
(iii) Devolution under the Scotland Act 1998 202
(iv) Parliament and the devolution settlement 212
xi Contents

(v) Conclusion: how settled is the current Scottish settlement? 216
(c) Wales 219
(i) Devolution under the Government of Wales Act 1998 220
(ii) Dissatisfaction with the 1998 scheme for Wales 222
(iii) Devolution under the Government of Wales Act 2006 225
(d) Northern Ireland 228
(i) Devolved government 1921“72 229
(ii) Direct rule 232
(iii) Renewed search for a settlement 233
(iv) Devolution under the Northern Ireland Act 1998 237
(v) Human rights and equality 240
(vi) North-South ministerial council and British-Irish council 242
(e) Devolution: conclusions 243
3 Local government 244
(a) Structure of local government 247
(b) Functions of local authorities 252
(i) Powers 254
(ii) By-laws 256

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