. 35
( 155 .)


opportunity of discussing their detailed provisions. This principle was approved
by the House of Commons (HC Deb vol 415, col 2402, 15 November 1945) and
has since generally been followed (eg in the proceedings on the Human Rights
Bill in 1998 and on the House of Lords Bill in 1999), though there is sometimes
disagreement as to whether a bill is ˜constitutional™ or of the ¬rst class of impor-
tance. The matter is usually settled through ˜the usual channels™ of consultation
between government and opposition, but cannot always be resolved in this way.
For instance, a motion to commit the Intelligence Services Bill 1994 to a com-
mittee of the whole House, on the ground that it involved ˜clear constitutional
issues™, was resisted and not carried. (Note also the controversy as to the ˜consti-
tutional™ character of the British Nationality Bill 1980: HC Deb vol 995, cols 649
et seq, 4 December 1980; vol 996, col 1138, 12 January 1981.) There was initial
disagreement between government and opposition about the legislative pro-
grammes for the Scotland Bill and the Government of Wales Bill in the 1997“98
session of Parliament, but after discussion between the usual channels each bill
had its committee stage on the ¬‚oor of the House. The entire committee stage of
the Constitutional Reform Bill (2004“05) was taken on the ¬‚oor of the House
rather than, as the Government initially proposed, parts of it being taken in com-
mittee (see HC Deb vol 430, cols 589“90, 31 January 2005). (The committee stage
of constitutional bills can be split, matters of principle being considered on the
¬‚oor and more technical provisions in standing committee.) For a thorough
analysis, see Hazell, ˜Time for a new convention: parliamentary scrutiny of con-
stitutional Bills 1997“2005™ [2006] PL 247.

(b) Subordinate legislation
Subordinate legislation, in the sense of legislation by the executive, is normally
made under the authority of Acts of Parliament (delegated legislation), but
Orders in Council on a strictly limited range of subjects can be made (by the
Queen in Council) under prerogative power “ a type of primary, not delegated,
legislation. Of this class are the Civil Service Orders in Council, which provide
the legal base for the regulation of the civil service.
Delegated legislation is normally concerned with matters of detail but is
sometimes of wider signi¬cance, and some Orders in Council and regulations
made under statutory authority have a place among the sources of constitu-
tional law. Subordinate legislation of this kind may reallocate functions of
central government or regulate the exercise of powers by local or other public
authorities. For instance, Orders in Council made under the Ministers of the
Crown Act 1975 can be used to dissolve government departments, establish
new ministerial o¬ces or transfer functions between ministers. (See further
T Daintith and A Page, The Executive in the Constitution (1999), pp 32“3, 36“7.)
Subordinate legislation made by ministers under the devolution statutes may
relate to constitutional matters, for instance in transferring functions to the
Scottish ministers (Scotland Act 1998, s 30(2)).
146 British Government and the Constitution

Restrictions on individual liberty sometimes have their source in subordinate
legislation. For instance, in 1980 the Home Secretary™s Immigration Rules “
rules of a hybrid character which include a legislative element “ introduced into
English law the ˜primary purpose™ rule, which severely restricted the rights of
spouses or ¬anc©(e)s of persons settled in the United Kingdom to enter the
country for settlement. The rule was widely criticised as unjust but in Rajput
v Immigration Appeal Tribunal [1989] Imm AR 350 it survived a challenge to its
validity on the grounds that it was so uncertain, unclear and unfair in its oper-
ation that Parliament could never have intended that it should be made. The
rule was abolished in 1997.
(For detailed accounts and case studies of the making of delegated legislation,
see A Le Sueur and M Sunkin, Public Law (1997), chs 10, 11 and E Page,
Governing by Numbers: Delegated Legislation and Everyday Policy-Making
(2001). The making and scrutiny of delegated legislation is considered further
in chapters 7 and 9.)

(c) Common law
A substantial part of the law of the constitution is common law. ˜[W]hile other
areas of substantive law have become land-masses of statute™, remarks Sir Stephen
Sedley, ˜our constitutional law remains a common law ocean dotted with islands
of statutory provision™ (˜The Sound of Silence™ (1994) 110 LQR 270, 273). The
doctrine of the rule of law, considered in the previous chapter, owes its authority
to the common law. It is in the common law that we ¬nd a number of important
powers of government, notably the ˜prerogative™ powers. These are the legal
powers of the Crown. Some continue to be exercised by the monarch him-or
herself, but most have now transferred to government ministers. Among the
former are the power to appoint the Prime Minister, the power to dismiss the gov-
ernment, the power to dissolve Parliament (thereby triggering a general election)
and the power to grant (or, exceptionally, to refuse to grant) the royal assent to
legislation. All of these are legal powers for which there is no statutory authority:
their source lies in the Crown prerogative, recognised by force of the common
law. Among the prerogative powers of ministers are the power to make treaties,
to conduct diplomacy, to deploy the armed forces (both within the United
Kingdom and abroad), to employ and organise the civil service, to issue and
revoke passports, and to grant pardons. Ministerial appointment (and removal),
appointment to the peerage, and the conferring of honours also fall within the
prerogative. (The prerogative powers of the monarch are considered in chapter 6;
those exercisable by government ministers are considered in chapter 7.)
In addition, judges have created a broad variety of common law principles in
matters which they see as touching the safety of the state, public order, the pre-
vention of crime or the moral welfare of society. Accordingly, and controversially,
the police enjoy common law powers of arrest, in addition to their statutory
powers (see, for example, Duncan v Jones [1936] 1 KB 218), and common law
147 Constitutional sources

powers of entry, in addition to their statutory powers (see Thomas v Sawkins
[1935] 2 KB 249). (For critical commentary, see K Ewing and C Gearty, The
Struggle for Civil Liberties (2000), pp 261“74 and 289“95.) Indeed, the courts have
allowed the police to exercise very considerable ˜preventive™ powers: further
examples include Piddington v Bates [1961] 1 WLR 162 and Moss v McLachlan
[1985] IRLR 76. In other cases, however, common law powers have been con¬ned
so as to protect the citizen from the arbitrary use of police power, for instance in
Lindley v Rutter [1981] QB 128 (disallowing automatic search of persons in
custody); Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 (requiring reasons
to be given before search of the person: see now the Police and Criminal Evidence
Act 1984, s 54); and Redmond-Bate v DPP [2000] HRLR 249 (disapproving police
action directed against persons whose conduct is lawful and unprovocative, but
which is the occasion for the use of violence by others).
Statutes are interpreted by the courts against a background of common
law principles, and some of these are regarded as having so fundamental a char-
acter that only very clear statutory language is accepted by the courts as e¬ective
to displace them.

Pyx Granite Co Ltd v Ministry of Housing and Local Government
[1960] AC 260 (HL)
By statute a person wishing to develop his land had normally to obtain the
permission of the local planning authority or of the minister. The relevant
legislation also provided that the minister™s decision on the question whether
permission was needed in a particular case should be ¬nal. The appellant
company had applied for planning permission, and the minister, having ruled
that permission was required, refused permission for part of the land and
granted it for another part only upon conditions. The company brought
proceedings in which it claimed that the proposed developments did not
require planning permission and that as a consequence the minister™s decisions
were invalid. It was argued against the company that the courts had no juris-
diction to entertain the action because the Act had provided the only procedure
for having the question of the need for permission determined.

Viscount Simonds: . . . The question is whether the statutory remedy is the only remedy and
the right of the subject to have recourse to the courts of law is excluded. . . . It is a princi-
ple not by any means to be whittled down that the subject™s recourse to Her Majesty™s courts
for the determination of his rights is not to be excluded except by clear words. That is, as
McNair J called it in Francis v Yiewsley and West Drayton Urban District Council, a ˜funda-
mental rule™ from which I would not for my part sanction any departure. . . . There is nothing
in the Act to suggest that, while a new remedy, perhaps cheap and expeditious, is given,
the old and, as we like to call it, the inalienable remedy of Her Majesty™s subjects to seek
redress in her courts is taken away.
148 British Government and the Constitution

Their Lordships held that the jurisdiction of the courts was not excluded, and
that the company did not require planning permission for the proposed devel-
opment. (See too Raymond v Honey [1983] 1 AC 1, 12“13, 14“15; R v Secretary
of State for the Home Department, ex p Leech (No 2) [1994] QB 198; Boddington
v British Transport Police [1999] 2 AC 143, 161; R v Secretary of State for the
Home Department, ex p Simms [2000] 2 AC 115.)
The common law supplies the bulk of the legal principles by which the exer-
cise of public powers may be quali¬ed. While these common law principles have
in recent years been supplemented with statutory principles (such as the
principle of proportionality, derived from the Human Rights Act 1998), it
remains the case that most of the standards against which the courts may judge
the exercise of governmental powers originate in the common law of judicial
review. This is true both of the substantive tests of legality and rationality
(sometimes known as ˜ultra vires™) and also of the procedural grounds of
review, also known as ˜natural justice™ (see, in more detail, chapter 10). The law
of natural justice provides a good example of the contribution that the common
law has made to our constitutional order.
Natural justice requires of decision-makers that they should act without bias
(nemo judex in causa sua: no one should be judge in his own cause), allow those
a¬ected by the decision to be heard (audi alteram partem: hear the other side of
the question), and reach their conclusion honestly and fairly. (These may,
indeed, be seen as requirements of the rule of law.)
It o¬ends against natural justice if a decision-maker is biased or has
some ¬nancial or personal interest in the matter to be decided. Also a deci-
sion may be of such a kind (eg a decision of a court or tribunal) that justice
must be seen to be done, so that a ˜real possibility™ of bias “ from the view-
point of a ˜fair-minded and informed observer™ “ will invalidate the deci-
sion, even if no actual bias is shown. (See R v Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119; Porter
v Magill [2001] UKHL 67, [2002] 2 AC 357; Lawal v Northern Spirit Ltd [2003]
UKHL 35, [2004] 1 All ER 187. Bias or the appearance of bias may also
constitute an infringement of Article 6(1) of the European Convention on
Human Rights.)
The obligation to give a hearing was declared long ago in the case of
Dr Bentley (1723) 1 Stra 557, who had been deprived of his degrees by the
University of Cambridge without notice. Fortescue J said in this case (567):

[T]he objection for want of notice can never be got over. The laws of God and man both give
the party an opportunity to make his defence, if he has any. I remember to have heard it
observed by a very learned man upon such an occasion, that even God himself did not pass
sentence upon Adam, before he was called upon to make his defence. Adam (says God)
where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou
shouldst not eat? And the same question was put to Eve also.
149 Constitutional sources

The growth in modern times of governmental powers a¬ecting the individ-
ual has extended the reach of natural justice “ often expressed in its newer appli-
cations as a ˜duty to act fairly™ “ and the courts continually work out its content
and application in a great variety of circumstances. Lord Morris of Borth-
y-Gest said in Wiseman v Borneman [1971] AC 297, 309:

Natural justice, it has been said, is only ˜fair play in action™. Nor do we wait for directions
from Parliament. The common law has abundant riches: there may we find what Byles J
called ˜the justice of the common law™ (Cooper v Wandsworth Board of Works (1863)
14 CBNS 180, 194).

Lord Reid said in the same case (308) that where a procedure for decision-
making was laid down by statute, the courts might supplement it with further
safeguards if that was necessary to ensure the observance of natural justice,
provided that ˜to require additional steps would not frustrate the apparent
purpose of the legislation™. It is presumed that Parliament, in conferring a power
of decision-making, however wide, ˜implicitly requires the decision to be made
in accordance with the rules of natural justice™ (R v Secretary of State for
the Home Department, ex p Pierson [1998] AC 539, 574, per Lord Browne-
Wilkinson). In Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 the
House of Lords overruled earlier authority in holding that the courts could
intervene to ensure the observance of natural justice by a prison governor exer-
cising disciplinary authority over prisoners. This disciplinary function, said
Lord Oliver (578), ˜is a public function which a¬ects the liberty and, to a degree,
the status of the persons a¬ected by it. As such it must . . . be subject to the
general common law principle which imposes a duty of procedural fairness
when a public authority makes a decision not of a legislative nature a¬ecting the
rights, privileges and interests of individuals.™
Subject to any further development of common law radicalism (discussed in
the previous chapter), common law principles, however fundamental they may
seem, have always to yield to unequivocal statutory provision. In addition, it
may be clear that a statute is intended to implement a policy which runs counter
to older ideas enshrined in common law. An example is the opposition between
private rights of property, traditionally defended by the common law, and
modern public welfare legislation (see eg, Belfast Corpn v OD Cars Ltd [1960]
AC 490, 523“4, per Lord Radcli¬e).
By inventing new common law doctrines the courts may bring about changes
in the constitutional system, but they must be slow to do so ˜by entering, or
re-entering, a ¬eld regulated by legislation™ (Lord Nicholls in Re McKerr [2004]
UKHL 12, [2004] 2 All ER 409, [32]). Constitutional reform is primarily the
responsibility of Parliament. The reforms witnessed since the election to power
of New Labour in 1997 have been introduced, principally, by statute: see, for
example, the Human Rights Act 1998, the devolution legislation of 1998, the
House of Lords Act 1999, the Freedom of Information Act 2000 and the
150 British Government and the Constitution

Constitutional Reform Act 2005, among others. This is not to say, however, that
common law rules of constitutional law cannot be changed by the courts: they
clearly may be and, indeed, sometimes are. M v Home O¬ce [1994] 1 AC 377,
considered in the previous chapter, is a good example, as is the case study to
which we now turn.

(i) Developing constitutional common law: a case study
The common law is (subject to Parliament) under the control of the judges, who
may by their decisions modify and reinterpret constitutional powers and rela-
tionships, and rede¬ne the rights of citizens. In the following case the court
extended a common law principle and added to the government™s armoury for
the protection of Cabinet secrecy.

Attorney General v Jonathan Cape Ltd [1976] QB 752 (Lord Widgery CJ)
Richard Crossman, a minister in the 1964“70 Labour Government, kept a
diary of Cabinet proceedings which he meant to publish in full, with the object
of challenging the traditional secrecy of British government and giving a
detailed public account of the working of the Cabinet. Crossman died before
the diaries could be published, but after his death The Sunday Times began to
publish extracts from them, and Crossman™s literary executors proposed
to publish the diaries in full as a book. In accordance with the usual practice
as to ministerial memoirs, The Sunday Times and the executors ¬rst submit-
ted the diaries to the Secretary to the Cabinet for his comments. Ordinarily if
the Cabinet Secretary asked for the deletion of particular items which he
thought infringed the con¬dentiality of Cabinet proceedings, or would be
damaging to national security, the publishers would comply. In this instance,
however, The Sunday Times, faithful to Crossman™s intentions, began to
publish the extracts although the Cabinet Secretary had refused to give them
The Attorney General brought proceedings for injunctions to prevent the
further publication of the diaries. In no previous case had an injunction been
granted or sought in similar circumstances, but the Attorney General argued
that the courts had power to protect the con¬dentiality of Cabinet proceedings


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( 155 .)