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16. Illegality  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed in depth. In addition, the public-sector equality duty in section 149 of the Equality Act 2010 is explained. The concept of jurisdiction and the distinction between error of law and error of fact are also included under this ground of review.

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11. The key functions of Parliament  

This chapter identifies Parliament’s primary functions of making law and scrutinising government action. Parliament’s scrutiny of government has been defined as ‘the process of examining expenditure, administration, and policy in detail, on the public record, requiring the government of the day to explain itself to parliamentarians as representatives of the citizen and the taxpayer, and to justify its actions’. In the absence of a codified constitution and entrenched limits on executive power, the requirement for the government to answer to Parliament for its actions acts as a check and control. The chapter also considers the legislative process, particularly legislative scrutiny. Secondary legislation made by the government can often be subject to much less scrutiny and debate than primary legislation, and sometimes none at all. These scrutiny gaps increase the risk of arbitrary law-making and ‘governing from the shadows’, again raising rule of law concerns.

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19. Police powers  

This concluding chapter studies police powers. It is the function of the police to keep the public secure by preventing and detecting crime, and maintaining public order. This involves the exercise of public power and powerfully engages the relationship between the citizen and the state. There are clear links between police powers and the rule of law: it is imperative that police powers are not used in a random, arbitrary way; are clear, foreseeable, and accessible; are not unlimited; and are in accordance with the law. Police powers are mostly statute-based, the most significant of which is the Police and Criminal Evidence Act 1984 (PACE) which was enacted to achieve a balance between protecting citizens’ rights and effective police powers. Under section 66, the Home Secretary issues detailed Codes of Practice regulating the exercise of police powers and providing clear guidelines for the police and safeguards for the public.

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8. Rule of law  

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

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12. The executive  

This chapter discusses the executive, the administrative branch of government which creates and executes policy, and implements laws. It specifically focuses on the organisation of central government in the UK. Central government in the UK carries out day-to-day administration in relation to England and the whole of the UK on non-devolved matters. Its functions include the conduct of foreign affairs, defence, national security, and oversight of the Civil Service and government agencies. Central government essentially consists of the government and Civil Service but modern government is extensive, multi-layered, and complex. The chapter then studies the sources of ministerial power. Ministers’ legal authority to act can derive from statute, common law, or royal prerogative. The royal prerogative is a source of power which is ‘only available for a case not covered by statute’.

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13. The judiciary  

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

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14. Challenging government action  

This chapter focuses on the administrative justice system. Administrative justice refers to the systems that enable individuals to resolve complaints, grievances, and disputes about administrative or executive decisions of public bodies, and to obtain redress. Grievance mechanisms exist to achieve redress and to ensure accountability and improved public administration. They include formal court action through judicial review, but range well beyond the courts to informal, non-legal mechanisms. Whereas a public inquiry may concern a grievance of a larger section of the public and can raise political issues, an inquiry by an Ombudsman concerns a grievance of an individual or small group, with a different fact-finding process. Meanwhile, tribunals determine rights and entitlements in disputes between citizens and state in specific areas of law, such as social security, immigration and asylum, and tax.

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16. Judicial review: grounds and remedies  

This chapter assesses judicial review and the rule of law, the three traditional grounds of judicial review, proportionality, the modern approach to judicial review, and remedies. Judicial review is the rule of law in action. Through judicial review, the courts place constraints on executive power by upholding and projecting rule of law principles on to executive actions. Indeed, it ensures that administrative decisions are taken rationally, in accordance with a fair procedure, and within the powers conferred by Parliament. As such, the traditional judicial review grounds of illegality, irrationality, and procedural impropriety are applied flexibly to protect individuals against the unreasonable, arbitrary, procedurally unfair, or unlawful use of power. Judicial review has unique remedies known as prerogative orders which comprise mandatory orders, prohibiting orders, and quashing orders.

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17. The Human Rights Act 1998  

This chapter addresses the Human Rights Act 1998. The Human Rights Act provides two ways for the courts to ensure compliance with Convention rights: where legislation is not human rights-compliant; and where a public authority has acted incompatibly with an individual’s rights. By providing a new benchmark for measuring UK legislation for compatibility with Convention rights, the Act gives judges a powerful interpreting role which effectively allows them to review Acts of Parliament. At the same time, the Act was carefully drafted to respect and preserve parliamentary sovereignty and does not give the UK courts power to invalidate, overrule, or strike down an Act of Parliament that is incompatible with a Convention right; and while the Human Rights Act has special status as a constitutional statute, it is not entrenched and cannot override other statutes.

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18. Human rights in action  

This chapter explores how three Convention rights operate in practice: the right to life (Article 2), the right to a private and family life (Article 8), and freedom of religious belief (Article 9). Article 2 provides that everyone’s right to life shall be protected by law. No one shall be deprived of one’s life intentionally save in the execution of a sentence of a court following one’s conviction of a crime for which this penalty is provided by law. Article 8 provides that everyone has the right to respect for one’s private and family life, home, and correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law. Meanwhile, Article 9 provides that everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change and manifest one’s religion or belief.

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10. The Legislature: membership, privileges, and standards  

This chapter explores the role and membership of Parliament’s two chambers, the House of Commons and the House of Lords, the operation of parliamentary privilege; and accountability of members. The key functions of Parliament include controlling national expenditure and taxation; sustaining the government; legislating and scrutinising government actions. The House of Commons is the pre-eminent chamber and dominates Parliament. The Commons’ membership consists of Members of Parliament (MPs) who are democratically elected by the public to represent their interests in Parliament. The membership of the House of Lords largely relies on patronage. Members of the Lords are appointed by the Queen on the Prime Minister’s advice. The House of Lords is an important revising and scrutinising chamber, and while it is subordinate to the democratically elected House of Commons, it is also a check on constitutional change by the Commons. The Parliament Acts 1911 and 1949 redefined the Lords’ legislative powers over public bills and established the Commons’ primacy. The chapter then considers the operation of parliamentary privilege. Parliament needs parliamentary privilege to conduct its core business effectively, independently, and without fear of outside interference, and to protect everything said or done in the transaction of parliamentary business. Indeed, Parliament is self-regulating and, as a sovereign body, operates outside the jurisdiction of the courts except for the criminal law. Each House has its own standards of conduct and disciplinary powers which ensure accountability.

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15. Introduction to judicial review  

This chapter looks at the purpose and constitutional significance of judicial review. Where public bodies overreach themselves by acting unlawfully, the judicial review process allows individuals to hold public bodies to account in the courts, ensuring that governmental and public powers are lawfully exercised. This maintains the rule of law by helping to protect the public from the arbitrary or unreasonable exercise of government power. Judicial review is therefore a powerful check and control by the courts on executive action, but it also raises issues of whether the process gives the judiciary too much power over the elected government. There are three preliminary or threshold issues that a claimant needs to satisfy when bringing a judicial review claim. To be amenable to judicial review, the claim must raise a public law matter; it must be justiciable; and the claimant must have standing (locus standi).

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9. Constitutional rights and principles  

This chapter addresses the doctrine of common law constitutional rights. This is a controversial area where judges uphold the rule of law to restrict not only government power, but occasionally the meaning of statutes in order to protect the fundamental rights and values that permeate the UK constitution. This can create tensions between parliamentary sovereignty, separation of powers, and rule of law. There is no definitive list of common law constitutional rights and values and they are unwritten, but they are essentially the rights and values protected by the rule of law that have evolved as rules of ‘fair play’ and justice. They include justice; legality; fundamental rights such as liberty, freedom of expression, and equality; accountable government; and democracy.