European Constitutional Law uses a distinctive two-part structure to examine the legal foundations and powers of the European Union. The text takes a critical approach to ensure awareness of the intricacies of European constitutional law. Part I looks at the constitutional foundations including a constitutional history. This part also looks at the governmental structure of the European constitution. Part II moves on to governmental powers. It looks at legislative, external, executive, and judicial powers. It ends with a study of limiting powers and EU fundamental rights.
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Chapter
Thomas Poole
This chapter focuses on the executive, the branch of government responsible for initiating and implementing the laws and for acting where necessary to secure the interests of the state. We trace its development out of a medieval model of government structured around the king and his court, to a modern world of offices exercising executive functions, grouped under the legacy term ‘the Crown’. The resulting institutions display a complicated pattern of law and custom, and legal concepts and principles relate to them often in convoluted ways. Our analysis focuses on how executive power is normally understood from the legal point of view—deriving from an authorizing statute via rules made within a government department to eventual application by subordinate officials or agents—and traces some of the ways the courts monitor that process. But we also examine the executive’s non-statutory or ‘prerogative’ powers, the two main compartments of which are treated separately, as the general executive powers and the general administrative powers of the Crown respectively.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary from author Thomas Webb.
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This chapter considers the evolving constitutional status 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 the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.
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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 discusses the nature and extent of constitutional conventions, which are political rules that are binding upon those to whom they apply. They apply to the relationships between the Crown, Parliament, the judiciary, the civil service, and the executive, and play a key role in limiting the powers granted to institutions of government by unwritten rules or sources. Constitutional conventions also regulate key parts of the relationship between the institutions of government. The doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. There are two main branches of ministerial responsibility. One is individual ministerial responsibility—that is, a minister’s obligation to account to Parliament for his or her words and actions and for those of his or her civil servants. The second branch of ministerial responsibility is collective ministerial responsibility. Amongst other things, collective ministerial responsibility prescribes that decisions reached by the Cabinet or other ministerial committees are binding on all members of the government, regardless of whether or not the individual ministers agree with them.
Chapter
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary and questions from author Thomas Webb.
Book
Anne Dennett
Public Law Directions provides a balance of depth, detail, context, and critique. The aim is to empower readers to evaluate the law, understand its practical application, and confidently approach assessments. The text offers scene-setting introductions and highlighted case extracts, making the practical importance of the law clear. It shows readers when and how to critically evaluate the law by introducing the key areas of debate and encourages a questioning attitude towards the law. Topics covered include: the UK constitution; constitutional principles and values; power in the UK including an examination of the three arms of state; an analysis of the relationship between the individual and the state; and a close examination of human rights, including a look at the Human Rights Act 1998.
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This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.
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This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.
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This chapter discusses the UK’s constitutional arrangements, and in particular, four important issues concerning the UK constitution, of which it is necessary to be aware at the outset. First, it sets out the three key themes that emerge from the study of contemporary UK public law, and second, examines the sources of the UK constitution. Third, the chapter addresses a number of principles that occupy a central role in UK public law, before finally considering whether the UK should adopt a written, or codified, constitution.
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This chapter explains the separation of powers doctrine, first describing the three branches of government: the legislative, judicial, and executive. It then discusses why separation of powers is needed, different conceptions of separation of powers, and separation of powers in the UK.
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When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.
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The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter considers the constitution of the United Kingdom of Great Britain (England, Scotland, and Wales) and Northern Ireland. The questions deal with issues such as whether a written constitution would make a great improvement to the UK system of government; the purpose of constitutional conventions; Dicey’s theory of the rule of law; the meaning of ‘separation of powers’; and its role in the constitutional arrangements of the UK and devolution or federalism.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in British Railways Board v Pickin [1974] AC 765, House of Lords. The case concerned the unwillingness of the courts to look behind the process by which statutes were enacted by Parliament. The case note explores the wider implications of this position in the context of debate between orthodox and alternative conceptions of parliamentary sovereignty, and the notion of constitutional statutes. The document also includes supporting commentary from author Thomas Webb.
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This chapter examines government powers of arrest and detention. Section I provides a three-part analysis of police powers to restrict an individual’s physical liberty under what we might regard as ‘ordinary’ laws. The first part of the chapter considers powers of ‘arrest’; the second section addresses powers of detention that arise consequent upon arrest but before the detained person has been charged with any offence; and the third considers situations in which a person can lawfully be detained without actually being arrested. Section II shifts the focus of the chapter to what we might consider to be ‘extraordinary’ laws, by describing and analysing the extent to which the constitution permits deprivation of liberty for ‘terrorist’ offences, specifically powers of arrest and detention which existed between 1945 to 1977, and then in the post-1977 era.
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This chapter examines the relationship between the government and the House of Commons, in order further to develop arguments concerning the doctrines of parliamentary sovereignty and the separation of powers within the contemporary constitution. Consideration is given both to the role played by the House of Commons within the legislative process and its effectiveness as a means to provide scrutiny of and challenges to the ways in which the government exercises its statutory and prerogative powers. The chapter 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 and asks if we should accept that the Commons is manifestly now a factional rather than national assembly for most purposes. But it is also suggested that 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.
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This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility; and control the power of the state. Indeed, a state’s constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK’s national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.
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This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.
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This chapter discusses the origins and meaning of the separation of powers doctrine. It highlights the contribution of French nobleman and parliamentary magistrate Charles Louis de Secondat, otherwise known as Baron de Montesquieu, to political theory: L’Esprit des Lois (The Spirit of the Laws). The chapter also addresses the question of whether there is a separation of powers in the UK constitution. Differences of opinion between academics and judges as to the importance of the separation of powers doctrine to an understanding of the UK constitution are reviewed. Examples of overlap between the three functions of government are presented, and the key reforms made by the Constitutional Reform Act 2005 are discussed.
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