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(iii) Ultra vires and judicial control 256
(c) Central-local government relations 259

5 The European dimensions 264
1 European Convention on Human Rights 264
(a) European Court of Human Rights and its impact on British
constitutional law 266
(b) Domestic in¬‚uence of the ECHR 270
(i) Before the Human Rights Act 1998 270
(ii) Human Rights Act 1998: its general scheme 271
(iii) Impact thus far of the Human Rights Act 1998 273
2 The European Union 278
(a) Nature and development of the European Union 278
(b) Institutional structure and law-making powers 286
(i) Institutions and bodies of the European Union 286
(ii) Law-making in the European Union 301
(c) Principles of European law: supremacy, direct and indirect
e¬ect and state liability 305
(i) Supremacy 305
(ii) Direct and indirect e¬ect 308
(iii) State liability 312
(d) EU law in the United Kingdom 315
(i) Impact of EU membership on government and Parliament 315
(ii) European Communities Act 1972 318
(iii) Impact of EU membership on questions of public law 321
xii Contents


Part II Government
6 Crown and government 345
1 The Crown 345
(a) Privileges and immunities of the Crown 348
2 Monarchy and the prerogative 354
(a) Appointment of the Prime Minister 356
(b) Dismissal of ministers 360
(c) Dissolution of Parliament 362
3 Central government 366
(a) Ministers 366
(i) Conduct of ministers 373
(ii) Ministerial solidarity 376
(b) The Prime Minister 385
(i) The Prime Minister™s O¬ce 390
(c) The Cabinet 391
(i) Neither ˜Prime Ministerial™ nor ˜Cabinet™ government:
the ˜core executive™ thesis 397
(d) Ministerial committees of the Cabinet 400
(e) Government departments 406
(i) ˜Next Steps™: executive agencies 409
(f) Non-departmental public bodies 411
(i) Control and accountability 414
(g) The civil service 416
(i) The civil service: principles and conduct 418
(ii) Civil servants and ministers 423
(iii) Special advisers 426

7 The powers of government 428
1 Executive power 429
2 The government™s powers 433
(a) Parliamentary legislation 434
(i) Making of government bills 435
(ii) Implementation and e¬ectiveness of legislation 441
(b) Delegated legislation 445
(i) Statutory instruments 451
(c) Prerogative legislation 459
(d) Executive powers 461
(i) Prerogative powers 464
(ii) Nature of the prerogative 467
(iii) Prerogative and statutory powers 469
(e) Administrative rule-making (quasi-legislation) 473
xiii Contents


(f) Guidance and codes of practice 479
(g) Voluntary agreement and self-regulation 484

Part III Accountability
8 Parties, groups and the people 493
1 The people in the constitution 494
2 Elections and the mandate 495
(a) Review of constituency boundaries 497
(b) Fairness of the contest 507
(i) Election deposit 507
(ii) Election expenditure 508
(iii) The media 510
(c) The electoral system 514
(i) Some varieties of proportional representation 521
(ii) The Jenkins Report 524
(d) The mandate 526
3 The people and government 531
(a) Referendums 533
4 Political parties 539
(a) Selection of candidates 540
(b) Party policy 541
(c) Financial resources 544
5 Pressure groups 546
6 Open government 556
(a) Code of Practice 559
(b) Freedom of Information Act 2000 560

9 Parliament and the responsibility of government 565
1 Introduction: responsible government 565
2 Individual ministerial responsibility 571
(a) A convention of resignation? 574
(b) Responsibility of civil servants 584
3 The power of Parliament 589
(a) Opposition 591
(b) Backbenchers 599
(c) The House 603
4 Control and scrutiny 604
(a) Policy and administration 606
(i) Debates 606
(ii) Questions 608
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(iii) Select committees 613
(iv) Parliamentary Ombudsman 623
(b) Legislation 630
(i) Primary legislation 630
(ii) Delegated legislation 635
(c) Finance 637
(i) Public Accounts Committee 640
5 The House of Lords 642
(a) Reform 648
10 The courts: judicial review and liability 654
1 Nature and foundations of judicial review 654
2 Grounds of review 660
(a) Illegality 661
(b) Irrationality 667
(c) Proportionality 675
(d) Procedural impropriety and unfairness 682
(i) Bias 682
(ii) Duty to act fairly 685
3 Scope and limits of judicial review 691
(a) Scope of judicial review 691
(b) Standing 692
(c) Ouster clauses 695
(d) Judicial review of prerogative powers 696
4 Conclusion: the advance of judicial review 700
5 Liability of the Crown 702
(a) Contractual liability 705
(b) Tortious liability 707
(c) Liability in restitution 709
6 Liability of public authorities 710
(a) Contractual liability 710
(b) Tortious liability 711
7 Tribunals 716

Part IV Liberty
11 Liberty and the Constitution 727
1 Sources of protection 728
(a) Common law 728
(b) Statute 732
(c) Statutory interpretation 733
(d) Delegated legislation 737
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2 Liberty and the Human Rights Act 1998 739
(a) The Convention rights 740
(i) Absolute and quali¬ed rights 744
(ii) Positive and negative obligations 745
(iii) Scope of protection 750
(b) Convention rights and national security: a case study 754
(i) National security before the Human Rights Act 1998 756
(ii) National security after the Human Rights Act 1998 762
(iii) Analysis and subsequent events 768
3 Freedom of expression 772
(a) Freedom of expression and democracy 773
(b) The ˜Spycatcher™ cases 777
(c) Freedom of expression as a common law ˜constitutional right™ 780
(d) Freedom of expression and statute 782
(e) Freedom of expression and the Human Rights Act 1998 786
(f) Con¬‚ict of rights 793
4 Freedom of assembly 796
(a) Common law: the classic authorities 798
(b) Common law preventive powers and breach of the peace 804
(c) Freedom of assembly as a ˜constitutional right™ 810
(d) Statutory restrictions on freedom of assembly 811

Index 819
Preface




This book is concerned with the organisation, powers and accountability of
government in the British constitution. It has been written from a lawyer™s per-
spective, modi¬ed by an awareness that the British constitution is far from
being exclusively the handiwork of lawyers. Judges and other practitioners of
the discipline of law have made a notable contribution to it, but so have politi-
cal philosophers, controversialists of many hues, party organisations, peers,
rebels in and out of Parliament and the legions of special interests. Yet lawyers
sometimes pretend that the constitution is theirs, teaching and writing about it
in myopic isolation.
We have written this book in the conviction that the law student will arrive
at an incomplete and fragmentary view of the constitution unless encouraged
to take account of ideas, practices and relationships that occur outside the strict
limits of the law of the constitution. The law student has much to learn from
writers and practitioners in politics, government and public administration,
just as students of these subjects can enrich their studies by learning something
of the values, constraints and possibilities of the law. If asked a question, say,
about the power of Parliament, a lawyer and a political scientist may give very
di¬erent answers. But they are describing the same institution, and for a full
understanding of its place in the constitution each of them needs to take the
other™s perspective into account.
We have set out in this book to present essential features of British govern-
ment and the constitution in a way that o¬ers a wider range of views to students
of law and we hope also to students of politics and government. The materials
in the book are taken not only from law reports, statutes and legal works but
from a variety of o¬cial and uno¬cial publications and from the writings of
political scientists, parliamentarians and other commentators on the constitu-
tion and the practice of government. We have tried in this way to show the
variegated texture of a constitution which consists not only of rules “ legal,
quasi-legal and customary or conventional “ but of ideas, habits of mind and
shared understandings: a constitution continually reshaped in the daily practice
of politics and administration as well as by the deliberate law-making of
legislators and judges.
The student of the British constitution soon ¬nds that there are present in it
xviii Preface


two opposite principles: a principle of change and a principle of continuity.
Until quite recent times, studies of the constitution generally over-emphasised
the latter principle, presenting the constitution as something stately and settled,
secure in its foundations, strong in its continuity and consistent in its slow
evolution. By contrast, a good deal of the more recent literature focuses overly
on the changing constitution at the expense of the continuing, the historical and
the traditional. For all the reform we have seen to the British constitution in the
last thirty years or so, there is much that remains of the old order (see further
chapter 1). The ˜venerable constitution™ is still, in all sorts of respects, an apt
description. What is needed “ and what we hope we have provided here “ is a
balanced account that addresses both the elements of change and continuity
that we ¬nd at the heart of the British constitution today.
The ¬rst ¬ve editions of this book were written by Colin Turpin. This is the
¬rst edition to have been jointly prepared by Colin Turpin and Adam Tomkins.
We have both worked on each of the chapters and take joint responsibility for
them all. Readers of earlier editions will ¬nd much that is familiar here but, for
this edition, the book has been extensively revised and reworked, as well as
updated. Some chapters are new to this edition, others have been substantially
restructured, and the order in which the chapters appear has been altered to
make clearer sense, we hope, of today™s constitutional law and practice. The
book is divided into four parts. Part I (chapters 1“5) deals with the fundamen-
tal ideas that govern the constitution (democracy, sovereignty, the rule of law
and so forth) and with the multiplicity of sources, both domestic and European,
that now contribute to it. In this Part, too, readers will ¬nd consideration of
constitutional reform and of the structures of devolution that have transformed
British government, at least in some parts of the United Kingdom, since 1998.
Part II (chapters 6“7) is concerned with central government, with its institu-
tions, personnel and powers. Part III (chapters 8“10) focuses on the various
ways in which British government is subject to forms of accountability. In this
Part we consider, in turn, the relative roles of the people, of Parliament and of
the courts of law in this regard. When we come to the courts (in chapter 10)
both the law of judicial review and the principles of liability are discussed.
Part IV (chapter 11) considers the extent to which, and the means by which, the
British constitution seeks to secure a degree of personal liberty. This is an
element of the constitution that has been sorely tested in recent years in the face
of a series of apparent threats to national and international security. We con-
sider in some detail the ways in which British constitutional law has responded
to this challenge.
Colin Turpin gives especial thanks to Monique for her constant encourage-
ment and practical help with work on the book. Once again he is grateful to the
Master and Fellows of Clare College for collective, friendly stimulus and to
the students whose enthusiasm, alertness and scepticism make the whole enter-
prise of teaching and writing about law exciting and worthwhile.
Adam Tomkins thanks his colleagues Gavin Anderson, Aileen McHarg and
xix Preface


Tom Mullen for comments and advice on various aspects of public law. He also

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