18. Human Rights II: Emergent Principles

This chapter presents an overview of the European Convention on Human Rights, an International treaty originating in the reconstruction of Europe’s political order following World War II. The chapter is organised as follows. Section I discusses the main procedural and substantive features of the Convention itself, whilst Section II assesses its status and use in English law up until (approximately) the early-1990s. Sections III and IV examine the leading judgments of the European Court on Human Rights in the areas of privacy and freedom of expression.

13. Substantive Grounds of Judicial Review

This chapter discusses the substantive grounds of judicial review: illegality, irrationality, and proportionality. Illegality covers the following: excess of power; the relevant/irrelevant considerations doctrine; unlawful delegation of power; unlawful fettering of power; and the estoppel doctrine. Irrationality is also concerned with the substantive content of a government decision, but focuses on the political or moral rather than (in the strict sense) legal character of the decision. Proportionality review can be defined as a constitutional device that requires the courts to accept that the boundaries of moral consensus within which government bodies are confined are discernibly less broad in substantive terms than those that apply in respect of irrationality-based review.

7. The Electoral System

A recent survey of electoral laws in modern societies identified six fundamental characteristics of democratic systems: (i) that virtually all adults may vote; (ii) that elections are held regularly; (iii) that no large group of citizens is prohibited from fielding candidates; (iv) that all legislative seats are contested; (v) that election campaigns are conducted fairly; and (vi) that votes are secretly cast and accurately counted. This chapter examines how well Britain’s electoral system satisfies these tests, first tracing the evolution of the democratic electoral system, followed by a review of the contemporary electoral process.

20. Human Rights IV: The Human Rights Act 1998

This chapter discusses the main provisions of the Human Rights Act 1998 (HRA) and considers its implications for the understandings attached to the core constitutional principles of parliamentary sovereignty, the rule of law, and the separation of power. It argues that the Blair government’s rapid and determined efforts to convince Parliament to pass the HRA demonstrates that members of the first New Labour administration did not share the simplistic view of democracy embraced by the Conservative Party during the judicial supremacism episode. The 1998 Act may be criticised on the basis that it transfers a dangerous amount of political power from the government to the judges, but the sentiments evinced by many Conservative MPs on this issue had little to commend them from a constitutional perspective.

19. Human Rights III: New Substantive Grounds of Review

This chapter considers how the UK constitution’s approach to the issue of civil liberties and human rights has changed in the past fifteen to twenty years. It starts by discussing the judicial incorporation of the European Convention on Human Rights and the difficulties domestic courts had in applying the Convention directly. The subsequent idea of Parliament enacting a statute giving Convention articles a superior status to common law rules, and Members of the House of Lords promoting private members’ Bills intended to give domestic legal effect to the ECHR are examined. The chapter goes onto discuss the re-emergence and consolidation of fundamental human rights as an indigenous principle of common law; and the ‘judicial supremacism’ controversy.

17. Human Rights I: Traditional Perspectives

The organising principle in respect of civil liberties in Britain is that individuals may engage in any activity not prohibited by statute or common law. In addition, neither other individuals nor government officials may interfere with an individual’s legal entitlements unless they can identify a statutory or common law justification for so doing. This chapter discusses the traditional approach taken by Parliament and the courts to the regulation of public protest, the protection of personal privacy, and to certain aspects of freedom of expression

9. Constitutional Conventions

This chapter assesses the nature and purpose of constitutional conventions. The discussions cover the concepts of collective and individual ministerial responsibility; the relationship between the Monarch and her Ministers; the relationship between convention, statute, and the common law; the Matrix-Churchill controversy; the ‘Ponsonby rule’ and the Constitutional Reform and Governance Act 2010. It is argued that the concentration of effective political power is often very intense, even within a political party; small groups of senior Ministers or even the Prime Minister alone may occasionally be, to all intents and purposes, ‘elected dictators’.

5. The House of Commons

This chapter examines the relationship between the government and the legislature, in order to develop arguments concerning the doctrines of parliamentary sovereignty and the separation of powers within the contemporary constitution. It argues that, for most of the modern era, the House of Commons has been a body in which party politics is the dominant determinant both in the legislative process and in respect of executive accountability. The house is manifestly now a factional rather than national assembly for most purposes. But it would be premature to conclude that the constitution permits factional concerns to determine both the content of legislation and the parliamentary accountability of government behaviour.

4. The Royal Prerogative

This chapter considers the fate of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and its erosion; Council of Civil Service Unions v Minister for the Civil Service (GCHG) as the pivotal case in the development of judicial review of the prerogative; post-GCHG developments; and the notion of justiciability. The chapter concludes that the courts supervise the government’s use of prerogative powers more closely now than in the pre-revolutionary era. There has been an increase in the theoretical reach of the courts’ power of review since the 1967 decision in Lain. Administrative law also seems to treat prerogative and statutory powers in the same way.

2. Parliamentary Sovereignty

This chapter examines the ways in which parliamentary sovereignty has been both criticised and vindicated in more recent times, first discussing A V Dicey’s theory of parliamentary sovereignty, which has two parts—a positive limb and negative limb. The principle articulated in the positive limb of the theory is that Parliament can make or unmake any law whatsoever. The proposition advanced in the negative limb is that the legality of an Act of Parliament cannot be challenged in a court. The negative and positive limbs of Dicey’s theory offer a simple principle upon which to base an analysis of the constitution. The chapter then discusses the legal authority for the principle of parliamentary sovereignty and reviews challenges to Dicey’s theory.