PUBLIC LAW

LECTURE #. 1 UK CONSTITUTION

“Lecture notes are not meant to replace the text or guide.”

WHAT IS PUBLIC LAW?

Public law deals with the law relating to how countries are governed. There are two
parts in the study of Public Law: Constitutional Law which establishes the principal
institutions of the state, defines the powers of those institutions and determines how
these institutions are held to account for those powers; Administrative Law confers
the legal powers and duties on individual public bodies and legal challenges to
government bodies through, for example, judicial review.

Great Britain - England, Wales, Scotland

The United Kingdom - England, Wales, Scotland and Northern Ireland.

THE WESTMINSTER MODEL

The key participants in the UK Constitution are the courts, parliament (House of Lords,
House of Commons & Monarch) and the Civil Service. Note that the Prime Minister must
come from the House of Commons while members of the Cabinet can be drawn from
either House in parliament.

At the apex of the UK constitution is Parliament which is considered to be supreme in its

law making powers and can make or unmake any law. The House of Commons is made
up of MP’s voted in at a general election and thus has more power in creating legislation
as they are considered to be the representatives of the people. The government
(cabinet) generates policy which is driven by law. Government is formed from the ruling
party which is the party that won majority seats in a general election thus government
will have a strong support in Parliament and may in theory be able to push through
policy at will. However, government is held in check by Parliament (in particular the
House of Commons) as legislation introduced by government ministers are scrutinized
and debated in Parliament, amended and voted upon, which means it can be rejected.
Departmental Select Committees also keep government in check by assisting in
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scrutinizing bills that are introduced for passage through parliament. The Supreme
Court, The Court of Justice of the European Union and the European Court on Human
Rights also help to keep government in check and arguably even constrain parliaments
will e.g. Hirst v United Kingdom (2005).

WHAT IS A CONSTITUTION?

‘…the whole system of government of a country, the collection of rules which establish
and regulate or govern the government.’ Professor K. C. Wheare.

‘A constitution is not the act of a government, but of a people constituting a

government, and a government without a constitution is power without right…a
constitution is a thing antecedent to a government; and the government is only the
creature of a constitution.’ Thomas Paine.

From these definitions, particularly the second, it can be discerned that a constitution
is something prior to government, it gives legitimacy to government and
defines the power under which government may act. It dictates and limits
government exercise of its powers. It defines the legality of power.

In most modern states these rules are contained in a single document which may or
may or not incorporate a Bill or Rights. The Bill or Rights will normally provide citizens
with guarantees regarding the protection of certain civil liberties. Such constitutions are
subject to judicial interpretation in the sense that the courts can assess the legality of
the legislative measures by reference to the constitutional document. For the citizens of
the country, the constitution is an enormously important document because it prevents
the state from abusing its powers and safeguards the rights of the individual.

THE UNWRITTEN NATURE OF THE BRITISH CONSTITUTION

Unlike most modern states, Britain does not have a codified constitution but an
unwritten one formed of Acts of Parliament, court judgments, customs and conventions.
The United Kingdom, therefore, does not have a document of fundamental importance

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setting out the structure of government and its relationship with its citizens. The key
landmark is the Bill of Rights (1689), which established the supremacy of Parliament
over the Crown following the forcible replacement of King James II after the Glorious
Revolution. This aspect of the British constitution, its unwritten nature, is its most
distinguishing characteristic.

EXAM TIP
In considering the status of individual rights in the UK, remember that, although the
unwritten constitution does not protect rights, we now have the European Convention
on Human Rights, as implemented by the Human Rights Act 1998, which does provide
greater protection for certain rights.

A point of comparison can be made with the USA where, following the American War of
Independence, a written document was prepared, which established fundamental
constitutional principles and safeguarded rights of citizens. Written constitutions usually
evolve from states - such as the USA - and some former British Colonies that desired to
make a clean break, start anew, or to establish a state that was once governed by
another. The absence of any such break in the UK history explains its mainly unwritten
constitution.

EXAM TIP
Make sure to point out that many written constitutions are produced after a revolution,
where the citizens rise up against what they see as an oppressive state. In this way the
US constitution was written after the War of Independence from Britain and the French
constitution was produced after the French Revolution. You can also make the point
that, although most countries have a written constitution, the UK is not the only country
without such a document. Both New Zealand and Israel also have unwritten
constitutions

In order to protect the citizen against the state, the constitution has to be strong
(otherwise the government will simply change it) but, if it is too strong, then it cannot
be amended to reflect changes in society. For example, the original US constitution

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included the right to own slaves, which was later removed when the majority recognised
this as unacceptable.
PARLIAMENTARY SOVEREIGNTY
There are a number of associated characteristics of Britain’s unwritten constitution, a
cardinal one being that in law Parliament is sovereign in the sense of being the supreme
legislative body. That is, the statutes passed by Parliament are the supreme and final
source of law in the UK. It follows that Parliament can change the constitution simply by
passing new statutes through Acts of Parliament. Historically, no Act of Parliament can
be unconstitutional, for the law of the land knows not the word or the idea. By contrast,
in countries with a codified constitution, the legislature is normally forbidden from
passing laws that contradict that constitution: constitutional amendments require a
special procedure that is more arduous than that for regular laws.

Burmah Oil v Lord Advocate

House of Lords held that the Crown was bound to compensate those whose property
had been destroyed by British forces during the Second World War – except where this
had occurred during the course of a battle. The decision would have resulted in a
massive drain on the country’s financial resources. Retrospective parliamentary
intervention followed in the form of the War Damage Act 1965. The preamble to the Act
recited that its purpose was to ‘abolish rights at common law to compensation in
respect of damage to property affected by the Crown during war’ . Rights which existed
prior to the Act were thus extinguished.

British Railways Board v Pickin (1974)

Lord Reid ….”The function of the court is to construe and apply the enactments of
parliament. The court has no concern with the manner on which Parliament or its
officers carrying out its Standing Orders perform these functions….”

Is Parliamentary Sovereignty a weakness in the uncodified UK Constitution?

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CLASSIFYING CONSTITUTIONS

WRITTEN AND UNWRITTEN CONSTITUTIONS

A “written constitution” is contained in a single document or series of documents
defining the basic rules of the state. By contrast an “unwritten constitution” is one that
can produce no such document or series of documents labeled to be the constitution.

RIGID AND FLEXIBLE CONSTITUTIONS

A constitutions flexibility or lack thereof is characterized by how easily it can be
amended. Framers of written constitutions tend to protect the legal framework of its
state by stipulating stringent procedures before constitutional changes can be effected -
for example, a referendum or a two-thirds majority vote. In this sense the constitution
is ‘entrenched.’ These constitutions are therefore relatively rigid. The UK constitution by
comparison is quite flexible. Under the doctrine of Parliamentary Sovereignty, parliament
is the supreme law making body and passes any law by a simple majority vote in
parliament and no court may hold an Act of Parliament void. In essence parliament has
no legal restraint and no parliament may lay down irreversible rules regulating future
legislative procedures which must be followed. Therefore the constitution is quite
flexible. However many non-legal restraints restrict parliament, mainly because of its
dependence on the support of the electorate.

SUPREME AND SUBORDINATE

A supreme constitution refers to a state in which the legislative powers of government
are unlimited. A subordinate constitution is one whose powers are limited by some
higher authority.

FEDERAL AND UNITARY

The common feature of Federal states is the sharing of power between central and
regional government. The powers divided between the federal government (central)
and state (regional) will be clearly set down in the constituent document. Some powers
will be reserved for the Federal Government and others will be held on partnership,

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powers being given to each level of government with central government possessing
overriding powers. The UK has many feature of a unitary constitution, in that the UK
Parliament at Westminster is the supreme law-making body. However following the
introduction of devolution where political power was granted to elected assemblies in
Wales, Northern Ireland and a Scottish parliament the unitary aspect of the UK
constitution has been diminished and can more accurately be described as a
multilayered form of government.

SEPARATED AND FUSED POWERS

The doctrine of the separation of powers stipulate that power vested in the principal
institutions of the state; Legislative, Executive and Judiciary should not be controlled in
the hands of any one institution. This provides checks and balances and prevents
tyranny. Fused powers, Totalitarian or purely Monarchical states have a single figure or
body with the sole power to propose and enact law, to administer the state and to apply
and adjudicate upon the law.

REPUBLICAN AND MONARCHICAL

In republics there would normally be a head of state who is directly elected by the
people. In Britain the Monarchy remains with the Queen as Head of State who holds
widespread formal powers in practice however these are exercised by the elected
government of the day by the Prime Minister.

CHARACTERISTICS OF THE UK CONSTITUTION

Unwritten/Uncodified - it can produce no single document or series of documents

labeled as “The Constitution” defining the rules of the state.

Flexible - the ease with which it can be amended. Under the doctrine of Parliamentary
Sovereignty, parliament is the supreme law making body and passes any law by a
simple majority vote in parliament and no court may hold an Act of Parliament void.

Supreme - because the legislative powers of government are unlimited.

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Unitary – Parliament sitting at Westminster, was the only body competent to legislate
for the whole of the UK. However, after the devolution of powers to Wales, Northern
Ireland and a Scottish parliament the unitary aspect of the UK constitution can more
accurately be described as a multilayered form of government.

Exhibit mainly but not complete Separation of powers - The doctrine of the
separation of powers stipulate that power should not be placed in the hands of any one
institution. Though the institutions of the state are not considered to be completely
separate it is believed that there are sufficient checks and balances in place.

Monarchical - In Britain the Monarchy remains with the Queen as Head of State and
succession to the throne is hereditary. The Queen holds widespread formal powers in
practice however these are largely exercised by the elected government of the day by
the Prime Minister.

SOURCES OF THE CONSTITUTION

Despite the fact however that there is no single document or documents in the UK
labeled constitution there are numerous rules that form the constitutional framework.

Statute – Not all Acts of Parliament can be considered constitutional. Examples are the
Bill or Rights 1689 established Parliament (rather than the monarch) as the supreme
law-making body in England. Restricted the powers of the King and set out basic
individual rights; the Acts of Settlement 1700 which provided for the succession to the
throne; the Act of the Union 1706 United England and Scotland, giving power to the
Westminster Parliament to legislate over Scotland; The European Communities Act 1972
which gave effect to EU law in the UK; the Human Rights Act 1998 made domestic
courts ‘courts of human rights’ by providing direct access to many of the rights
contained in the European Convention on Human Rights. Placed a statutory obligation
on the state to act in accordance with the Convention rights; the Parliament Act 1911 &
1949 removed the ability of the House of Lords to reject legislation which has been
passed by the House of Commons; Constitutional Reform Act 2005 provided for judicial
independence and judicial accountability; Magna Carta 1297 provided for civil liberties.

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However, there is much debate over which acts are actually constitutional documents in
Thoburn v Sunderland City [2002] Laws J gave a list of statutes that are believed to be
constitutional examples include; The Magna Carta 1297, Bill of Rights 1689,Union with
Scotland 1706 and The Human Rights Act 1998. There is however debate over certain
other statutes such as; Parliament Act 1911, and Constitutional Reform Act 2005, along
with various other acts. The fact there is so much debate over which acts are
constitutional and which are not, supports the idea that the British Constitution is
unknown and unclear, by having so many different acts that may contain important
constitutional issues it makes the law regarding the constitution incredibly uncertain to
all people. If the constitution is supposed to set out the relationship between the
institutions and the individual how is it possible to ascertain this information when there
are so many areas and statutes to consult?

Importantly, statute law on the constitution is virtually un-entrenched and unprotected.

The most important rights and regulations governing the institutions and government
are, in theory, completely vulnerable to amendment or even repeal. There are two
different schools of thought on the hierarchy of the constitution. The first of these is the
orthodox view, “Although the Magna Carta 1215 and the European Communities Act
1972 are in one sense fundamental laws, then can be as easily repealed, as say, the
Animals Act 1971…" – Barendt. This view is effectively saying that all statutes are of the
same status, the constitutional statutes have no more protection than ordinary statutes.
This view highlights quite clearly how un-entrenched the British Constitution actually is.
Lord Wilberforce stated he held some reluctance to statutes of “such constitutional
significance …being subject to the doctrine of implied repeal" (i.e. where an Act of
Parliament conflicts with an earlier one, the later Act takes precedence and the
conflicting parts of the earlier Act becomes legally inoperable). Although Lord
Wilberforce was speaking extra-judicially here it still highlights that, at least in the eyes
of the judiciary, there is some entrenchment in relation to the constitution.

Judicial Decisions/ Case Law – Another place in which to find constitutional

documents are in the Common Law, which are judicial decisions. There are many
constitutional elements of law contained in cases as a means of ‘filling the gaps’ that has
been left in the absence of statute.

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Through the development of the Common Law the courts can establish important rules
relating to the powers of various organs of government: A case which set out the limits
of the Secretary of State’s power to issue warrants - Entick v Carrington (1765) - The
King’s messengers broke into Entick’s house on orders from the Secretary of State to
seize both Entick and his papers (he was suspected of treason). Entick challenged the
legality of the search but the Secretary of State argued that such powers were an
essential part of government. Held the state had to act within legal authority. Therefore,
if there was no statute or common law precedent which authorised the search, it would
be illegal. The state was not above the law.

M v Home Office [1994] when they held the Secretary had committed contempt of
court by not allowing a Zairean teacher back into the United Kingdom.

It is a positive aspect of the Common Law that it protects the right of citizens while
making the government accountable to the citizens for their actions, the only issue
being the uncertainty behind the Common Law, these decisions are not easily accessible
and as mentioned previous, very indeterminate and ever changeable. This also shows
that the constitutional ideas present within are completely unprotected and not able to
be determined by ordinary citizens – unless they know where to look. In addition,
parliament can easily set aside or even repeal judicial decisions easily, even
retrospectively, further showing that the constitutional common law is even more un-
entrenched than statutes.

The Royal Prerogative – Dicey described this as; “…the residue of discretionary and
arbitrary authority, which at any time is legally left in the hands of the crown." These
are, privileges and immunities belonging to the Crown, such as the power to declare
war, enter into treaty obligations, issue passports, recognize foreign governments and
maintain domestic law and order. One of the most important aspects of prerogative
powers is that, traditionally, they have not been enforceable by the courts. They have
been seen as ‘non-justiciable’, which means that the court will recognize that a
prerogative power applies in a given situation but cannot enforce it. This made such
powers largely unaccountable.

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However, this position began to change with the recognition by the courts that
prerogative powers were not beyond their jurisdiction. Two of the most important
crown prerogatives are the dissolution of parliament and the declaration of war. In
theory the Crown can do this at any time; however in reality it would cause many
problems. Although Crown Prerogative is not usually demonstrated in these ways much
in the modern day, it doesn’t mean they are any less a part of our constitution, however
once again as they are unwritten and unknown to most citizens they can be seen to be
another indeterminate part of the British Constitution.

Council of Civil Service Unions v. Minister for the Civil Service (the ‘GCHQ Case’) (1985)
It was decided by the government that workers at the secret Government
Communications Headquarters (GCHQ) should not be allowed to join a trade union in
case this led to them going on strike. The government altered, by means of prerogative
power, the terms of employment of the workers to prohibit union membership. The
union sought judicial review of the policy. It was held that, although this particular
prerogative power remained non-justiciable, there was nothing in principle to prevent
the courts from considering the use of prerogative powers. This has led to various
prerogative powers being challenged in later cases.

The ‘GCHQ case’ is extremely important, even though the union lost their challenge to
the policy. The key point is that the court recognised that it had the power to review
some prerogative powers – this had previously been thought impossible.

The Cabinet Manual – Written in 2010 – 2011 forms a guide to laws, conventions and
rules on the operation of government. Though it provides rules and practices it is not
intended to be a source of any rule.

Constitutional Conventions – Another source of the British Constitution are non-legal

rules called Conventions. Conventions are binding upon the public bodies that operate
the constitution, however, they are not enforceable by the courts. They are probably the
most indeterminate and un-entrenched parts of the Constitution. It is difficult to identify

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a convention and they are incredibly easy to suspend, reformulate or even ignore as
they are not binding or punishable.

Conventions of the British Constitution include such things as the Queen’s right to
refusing a Royal Assent, however it is unlikely that the Queen will ever refuse royal
assent due to convention. Similarly, the Queen has the power to appoint anybody to be
her Prime Minister, but convention dictates that she will choose the leader of the party
with the most seats in Parliament. Another convention is that minister has a
responsibility towards parliament, in which ministers speak with one voice and have
confidentiality and unanimity. Although these conventions have no punishment failing to
comply with them will seriously damage political reputation and could lead to anarchy if,
for example, the queen decided to appoint a Prime Minister not part of the Commons.

It could be argued that these are such important rules that they ought to be enshrined
in law. The reply might be that leaving them as they are allows them to be amended
easily and gradually through practice. Also, if they were obeyed as if they are law, why
do they need to be enshrined in law, assuming they could be adequately defined.
Further conventions allow discretion and can be waived of particular circumstances
make this impossible. Their non-legal nature helps to keep the judiciary and the courts
out of politics and political controversy.

NOTE - There is a considerable overlap between the operation of constitutional

conventions and royal prerogative and this can cause confusion. The best way to view
the relationship between the two is that certain actions are authorised by Prerogative
power and the convention provides the custom or rule which dictates how the power
shall be exercised.

Examples of Conventions relating to the Monarchy

1. Royal assent - The monarch gives Royal assent by means of prerogative power
– the convention is that the monarch will always give assent to a Bill which has
been approved by Parliament.

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 2. Appointment of the Prime Minister - The Monarch appoints the Prime Minister –
by convention this is the leader of the political party with the largest number of
seats in the House of Commons.
3. The Monarch should act on advice of her ministers
4. The Sovereign should dissolve Parliament at the request of the Prime Minister

Examples of Conventions relating to the Executive

1. By convention, the government will resign if it loses a vote of confidence in the
Commons.
2. Ministers are collectively and individually responsible to Parliament
3. Ministers must be members of the House of Commons (HOC) or House of Lords
(HOL)
Examples of Conventions relating to the Parliament
1. Public expenditure measures must originate in the HOC
2. The HOL ought ultimately to defer to the will of the HOC.
Examples of Conventions relating to the Judiciary
1. A judges professional conduct should not be questioned in either House except
on a motion for dismissal
2. A judge should not be active in party politics

European Union Law – The UK Constitution is based on Parliamentary Sovereignty,

subject to the constraints imposed by membership of the European Union. The
consequence of membership to the EU is that executive, legislative and judicial decisions
on many fields of policy are now made through or influenced by EU institutions.

International Law – Customary International Law & Treaties

o Customary International Law describes the widespread conduct of states

such conduct being based on the belief that the conduct is required
because the rule of law renders it obligatory

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 o A treaty is an agreement under international law and the Vienna
convention on the Law of Treaties (1969) requires that treaties be in
writing. Treaties tend to influence domestic law as governments are
bound to operate within their confines.

WRITTEN CONSTITUTION
ADVANTAGES DISADVANTAGES
All key provisions are contained in a single Requires one document to encompass the
document. regulation of the entire constitution.
Provides a clear statement of how the May lead to litigation over the precise
state should operate with no uncertainty meanings of the terms used, particularly if
over words. Everyone can read and agree the language is outdated.
what it says.
Protects the individual from abuses by the May be difficult to amend if the provisions
government of the day. become outdated (e.g. the USA and
slavery).
Provides clear protection of individual May be inflexible and unresponsive to
rights. change.
UNWRITTEN CONSTITUTION
ADVANTAGES DISADVANTAGES
Flexible and responsive to changing Can appear vague and uncertain. No single
circumstances. agreed source of constitutional law.
Leaves the state free to develop the law Leaves the state free to abuse its powers
for the benefit of citizens. and develop laws which act against its
citizens.
Encourages the evolution of the Provides no protection for individual civil
constitution. liberties.

CONSTITUTIONAL PRINCIPLES

RULE OF LAW
A core constitutional principle, the rule of law, is a phrase that was popularized by legal
scholar A. V. Dicey in his 1885 work, Introduction to the Study of the Law of the
Constitution, which is recognized as a work of authority on the constitution by the British
Parliament. This is the idea that all laws and government actions conform to principles.
These principles include equal application of the law: 1)everyone is equal before the law

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and no person is above the law, including those in power. Another is that 2) no person
is punishable in body or goods without a breach of the law: as held in Entick v
Carrington, persons are free to do anything, unless the law says otherwise; thus, no
punishment without a clear breach of the law.

RvR

R married his wife in August 1984 but the marriage became strained, and his wife
moved back to her parents' house in October 1989, leaving a letter expressing her
intention to seek a divorce. A few weeks later, in November 1989, R broke into the
house while his wife's parents were out, and attempted to force her to have sexual
intercourse with him against her will. He also assaulted her, squeezing his hands around
her neck. The police arrested R and charged him with rape. HOL declared that it is
possible for a H to rape his W at a time when it have been lawful for him to do so.
ECHR upheld this decision despite the fact that it imposed retrospective criminal liability.

SEPARATION OF POWERS
The essence of the doctrine is that there should be ideally a clear demarcation of
personnel and functions between the (3 elements of a democratic constitution)
legislature, executive, and judiciary in order for no one body to have excessive
power and to put in place a system of checks and balances between the institutions.

The legislature - law-making body, and is comprised of the House of Commons and
the House of Lords.

The executive - is all the institutions and persons concerned with the implementation
of the laws made by the legislature. It involves central and local government and the
armed forces.

The judiciary is made up mainly of professional judges, and their main function is ‘to
determine disputed questions of fact and law in accordance with the law laid down by
Parliament and expounded by the courts and …is exercised mainly in the civil and
criminal courts.’

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When people talk of a written constitution they normally have in mind the sort of model
to be found in the American constitution. This operates on a basis that the three
branches of government, each with different spheres of operation, acts as a check and
balance on the other. The key point is that each branch of government is subordinate
to a written document, i.e. the constitution, setting out the powers and functions of the
judiciary, legislature and executive. Each branch must operate within the limits on its
powers laid down by the constitution. In this sense it is possible for legislation enacted
by the legislature to be struck down as ‘unconstitutional’ by the Supreme Court. The
rights in the American constitution are entrenched i.e. they can only be altered by two-
thirds majority vote on Congress.

French Legal writer Montesquieu believed that: “When legislative power is united with
executive power in a single person or in a single body of the magistracy, there is no
liberty” Therefore, if power is concentrated in one group of persons, the result would
inevitably be corruption and an abuse of power. Tyranny and dictatorship would ensue
and this, in turn, would mean a loss of liberty for the people as there would be no group
to ensure checks and balances.

There are significant departures from the pure doctrine under the UK’s constitution, that
is, there is no strict separation of Powers.

Saunders explains that: ‘…If there was a strict separation, and we did not have overlaps
or checks and balances, our system of Government would become unmoveable. A lack
of cooperation between limbs would result in constitutional deadlock and therefore, ‘…
complete separation of powers is possible neither in theory nor in practice.’

Historically, the position of Lord Chancellor was distinctive in that he was a member of
all three branches of Government and exercised all three forms of power. He would sit
as speaker in the House of Lords (legislative function), was head of the judiciary (judicial
function), and was a senior cabinet minister (executive function). After the Human
Rights Act 1998 and the case of McGonnell v UK (2000), the Government announced
changes to the role of Lord Chancellor in the UK.

McGonnell v UK (2000 - the applicant challenged the Bailiff of one of the Channel
Islands (Guernsey) who has a position analogous to the Lord Chancellor in that he
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combines judicial and executive functions and had had a role in previous legislative
proceedings. The actual appeal concerned a refusal of planning permission and an
alleged breach of Article 6(1) of the European Convention. The European Court of
Human Rights held that whilst no actual bias was suggested on the part of the Bailiff,
his involvement in the proceedings gave rise to a legitimate sense on the part of the
applicant that there was doubt about his judicial impartiality and independence.

Government enacted the Constitutional Reform Act 2005, which meant that the
Chancellor was replaced as head of the judiciary by the Lord Chief Justice. He was
replaced as speaker in the House of Lords by the creation of the post of Lord Speaker,
and now only appoints judges on the basis of recommendation from a Judicial
Appointments Commission.

These changes show that there is a strong importance still placed upon the doctrine of
separation of powers. However it is still possible to see overlaps within the three limbs.

JUDICIAL INDEPENDENCE
The Primary role of the judiciary is to adjudicate upon legal disputes that are brought
before the courts. This involves interpreting and applying legislation and developing and
applying common law. To achieve this, the judiciary must be able to decide cases free
from pressure from politicians and other improper pressures from, for example, the
media and the general public.

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (1999)

Chilean dictator Pinochet accused by a Spanish judge of torture a crime under
international law which can be prosecuted in any country. The Spanish judge faxed an
arrest warrant to London and Pinochet was arrested. Pinochet lawyers argued that
since he was head of the state at the time of the alleged crime he was immune from the
jurisdiction of the courts. The House of Lords was required to consider whether a
former head of state enjoyed immunity from extradition. The House of Lords held that
Pinochet did not have immunity, however it emerged that one of the Law Lords had
close links with Amnesty International, which was pressing for the extradition to take
place. This raised the possibility of bias and so required the decision to be set aside and
the case reheard.

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Council of Civil Service Unions v Minister of Civil Service (1985) (GCHQ CASE)
Courts has the authority to review prerogative power if justiciable

M v Home Office
Executive is bound by the rule of law and judicial remedies

HUMAN RIGHTS ACT 1998

The European Convention on Human Rights has been incorporated into domestic law
with the enactment of the HRA 1998. This is not the same as adopting a written
constitution to protect the fundamental rights but it does go some way to effectively
entrenching these rights in the constitution. It is true that the HRA 1998 could be
repealed by any future Parliament in a simple majority vote, but politically this is
unlikely. Legislation could be enacted that conflicted with the rights protected by the
HRA, but a minister would be required to bring this fact to the attention to the HOC
when presenting a bill that was designed to achieve this outcome- in effect he would
have to invite the HOC to ignore the HRA.

SHOULD THE UK ADOPT A WRITTEN CONSTITUTION?

A truly new constitution would involve constitutional resettlement. 1) The adoption of a
written constitution would place the legislature firmly within clear legal limits 2) place
prerogative power on a statutory basis with ultimate power in the hands of the judges
(creating an institutional imbalance) 3) secure a clear demarcation of the three
branches of government 4) Parliamentary Sovereignty will cease to exist

HOMEWORK QUESTION

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