Constitutional & Administrative Law (Public Law)

# Constitutional & Administrative Law (Public Law) — Revision Notes

---

## PART 1: CONSTITUTIONAL LAW

### 1. Parliamentary Sovereignty

Parliamentary sovereignty is the dominant principle of the UK constitution. It means Parliament can make or unmake any law; no Parliament can bind its successor; and no court can declare an Act of Parliament invalid.

**Core authority:**
- In *Edinburgh and Dalkeith Railway v Wauchope* (1842) 8 Cl & F 710, the House of Lords held that courts have no jurisdiction to examine whether proper parliamentary procedures were followed. Once a bill is enrolled, it cannot be challenged — the enrolled bill rule. Wauchope's challenge to a private Act of Parliament failed entirely.
- In *Manuel v Attorney General* [1983] Ch 77, Canadian Indians challenged the Canada Act 1982, arguing Parliament had no authority to legislate without their consent and had breached international obligations. The Court of Appeal held that UK courts have no jurisdiction to declare Acts of Parliament invalid, regardless of alleged breaches of international law. The ratio is absolute: Parliament's legislative sovereignty cannot be overridden by international obligations.
- *MacCormick v Lord Advocate* 1953 SC 396: Lord Cooper (obiter) suggested that parliamentary sovereignty, as understood in English constitutional thought, may not apply in identical form in Scotland, and that the Treaty of Union might impose justiciable limits. This is a live doctrinal flashpoint, though the case itself dismissed the petition — the court held it had no power to question Acts of Parliament.

**Jackson v Attorney General [2005] UKHL 56** (the Hunting Act case): The House of Lords upheld the Hunting Act 2004 passed via the Parliament Acts 1911/1949. Several Law Lords (obiter) questioned whether parliamentary sovereignty is truly unlimited and whether courts might one day refuse to apply legislation that fundamentally undermined the rule of law or democratic governance. Lord Hope: "Parliamentary sovereignty is no longer, if it ever was, absolute." This obiter is a regular exam flashpoint.

**Key principle:** As Dicey explained (cited in *Jackson*), Parliament has "the right to make or unmake any law whatever; and no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."

---

### 2. The Rule of Law

Dicey identified three aspects: (1) no punishment except for breach of law established in the ordinary courts; (2) no one is above the law, including government officials; (3) the constitution is a result of ordinary law, not a code.

**Core cases:**

- *Entick v Carrington* (1765) 19 St Tr 1029: King's messengers entered Entick's home and seized his papers under a warrant from the Secretary of State. The court (Lord Camden CJ) held the warrant had no basis in statute or common law — it was unlawful trespass. **Ratio:** every invasion of private property must be justified by law; state officials must have specific legal authority for their actions. This is the bedrock of the rule of law in UK constitutional law.

- *M v Home Office* [1994] 1 AC 377: An asylum seeker from Zaire faced deportation despite a court order preventing removal. The Home Secretary deported him in breach of an injunction. The House of Lords held that the Crown and government ministers acting in their official capacity can be subject to contempt of court proceedings; injunctive relief can be granted against ministers. **Ratio:** the rule of law requires government compliance with court orders as a matter of legal necessity, not grace. Lord Templeman: the proper constitutional relationship requires mutual respect between executive and judiciary, with neither being above the law.

---

### 3. Separation of Powers and Constitutional Checks

The UK has no strict separation of powers (Montesquieu's model) but partial separation. The Constitutional Reform Act 2005 enhanced judicial independence by creating the Supreme Court and requiring the Lord Chancellor to uphold judicial independence.

The GCHQ case (see below) is central to understanding the relationship between executive prerogative and judicial review.

---

### 4. Crown Prerogative Powers and their Limits

Prerogative powers are residual common law powers of the Crown. They were once largely immune from judicial review.

**CCSU v Minister for the Civil Service (the GCHQ case) [1985] AC 374:** The government banned trade union membership at GCHQ without prior consultation, using prerogative powers on grounds of national security. The House of Lords held:
- Prerogative powers are subject to judicial review in principle — the source of a power (statute or prerogative) does not determine reviewability; rather, it is the subject matter.
- However, where national security is genuinely at stake, courts will not intervene.
- Lord Diplock established the three heads of judicial review: **(i) illegality, (ii) irrationality, (iii) procedural impropriety**.
- The unions failed because national security was a non-justiciable matter on the facts.

**Significance:** This was the first case to confirm that prerogative powers are reviewable in principle and to provide a unified framework for the grounds of judicial review.

---

### 5. Judicial Independence and Bias

**Dimes v Grand Junction Canal Co (1852) 3 HLC 759:** The Lord Chancellor (Lord Cottenham) decided a case in favour of the Grand Junction Canal Company, but he was a shareholder in that company. The House of Lords set aside his decision. **Ratio:** any pecuniary interest, however small, automatically disqualifies a judge from hearing a case. This is an absolute rule requiring no proof of actual bias — nemo judex in causa sua (no one should be a judge in their own cause). The principle that "justice must be seen to be done" flows from this case.

---

### 6. Human Rights Act 1998 and ECHR Incorporation

The HRA 1998 incorporates Convention rights into domestic law:
- **s.3 HRA:** Courts must interpret legislation compatibly with Convention rights "so far as it is possible to do so."
- **s.4 HRA:** Where compatible interpretation is impossible, a court may issue a declaration of incompatibility — but this does not invalidate the legislation (Parliament retains sovereignty).
- **s.6 HRA:** It is unlawful for a public authority to act incompatibly with Convention rights.

**R (Daly) v Secretary of State [2001] UKHL 26:** The Home Secretary introduced a policy requiring prisoners to be absent when their cells were searched and legal correspondence inspected. Daly, a prisoner, challenged this as a breach of legal professional privilege and Article 8 ECHR (right to private correspondence). The House of Lords held the policy was unlawful. Lord Steyn explained that proportionality under the HRA requires more intensive review than Wednesbury: the court must assess whether the interference with a Convention right is no more than necessary to achieve a legitimate aim. Proportionality involves a structured analysis of: (a) whether the objective is sufficiently important; (b) whether the measures are rationally connected; (c) whether less restrictive alternatives exist; and (d) proportionality stricto sensu.

---

## PART 2: ADMINISTRATIVE LAW / JUDICIAL REVIEW

### 7. Grounds of Review: Illegality

Lord Diplock in GCHQ [1985] AC 374: illegality means a decision-maker must correctly understand the law that regulates their decision-making power and give effect to it.

**Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (reported at [1968] UKHL 1 in the corpus):** The Minister refused to refer a complaint about the Milk Marketing Board to the committee of investigation, fearing the committee might recommend action embarrassing to him. The House of Lords held the Minister had acted illegally by using his discretion to frustrate the purpose of the Agricultural Marketing Act 1958. **Ratio:** a statutory discretion must be exercised to promote the policy and objects of the Act that confers it; it cannot be used for an improper purpose. This is a leading authority on irrelevant considerations and improper purpose as species of illegality.

---

### 8. Irrationality / Wednesbury Unreasonableness

**Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 (reported as [1948] 1 KB 223):** The Corporation granted a Sunday cinema licence on condition that no children under 15 be admitted. The cinema company challenged the condition. The Court of Appeal (Lord Greene MR) dismissed the challenge and formulated the test: a decision is unlawful only if it is so unreasonable that no reasonable authority could ever have come to it. This is the classical Wednesbury standard — a high threshold for court intervention.

The Wednesbury standard is supplemented (and to some extent replaced in HRA cases) by proportionality. In *R (Daly)* [2001] UKHL 26, Lord Steyn confirmed that proportionality is a more searching standard than Wednesbury irrationality when Convention rights are engaged.

---

### 9. Procedural Impropriety: Natural Justice

Two core rules of natural justice:
(a) **Audi alteram partem** — the right to a fair hearing
(b) **Nemo judex in causa sua** — the rule against bias

**Cooper v Wandsworth Board of Works (1863) 14 CB NS 180:** Cooper built a house without giving seven days' notice to the Board. The Board demolished his house without giving him any hearing. The court held the Board was wrong — even though the statute did not expressly require a hearing, natural justice implied the right to be heard before being deprived of property. **Ratio:** natural justice requires an opportunity to be heard before administrative action is taken affecting a person's rights, even where statute does not expressly provide for it. Established the principle of implying procedural fairness into statutory schemes.

**Ridge v Baldwin [1964] AC 40:** Ridge, Chief Constable of Brighton, was dismissed by the Watch Committee without notice of the charges against him or an opportunity to be heard, following his acquittal on criminal charges (though the trial judge had criticised his conduct). The House of Lords held his dismissal void. **Ratio:** public bodies must observe natural justice — including the right to a fair hearing — before making decisions that affect an individual's rights. Lord Reid: the right to be heard depends on the nature of the decision and its impact on rights; where dismissal is involved, the full audi alteram partem rule applies. This case revived natural justice as a fundamental principle of administrative law.

**Dimes v Grand Junction Canal Co (1852) 3 HLC 759** (bias): see above — nemo judex in causa sua as an absolute rule when pecuniary interest is present.

---

### 10. Proportionality in the HRA Context

**R (Daly) v Secretary of State [2001] UKHL 26** (see above). The court confirmed that proportionality is now part of domestic UK law via the HRA. Lord Steyn drew a distinction between proportionality and Wednesbury: proportionality requires the court to assess the balance struck by the decision-maker, not merely whether the decision was within the range of reasonable responses. This marks a qualitative intensification of review where Convention rights are engaged.

---

### 11. Ouster Clauses and Judicial Review

**Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147:** Anisminic sought compensation for property sequestrated in Egypt. The Commission rejected the claim. The Foreign Compensation Act 1950 provided that the Commission's determinations "shall not be called in question in any court of law." The House of Lords held that the Commission's decision was a nullity due to jurisdictional error — it had asked itself the wrong question by importing a condition (successor in title must be British) not in the Order. The ouster clause could not protect a legally non-existent determination. **Ratio:** if a tribunal acts outside its jurisdiction, its decision is a nullity; ouster clauses cannot protect decisions made without jurisdiction. Lord Reid: Parliament cannot have intended to protect determinations that are legally non-existent.

---

### 12. MacCormick v Lord Advocate 1953 SC 396 (Enrolled Bill Rule / Sovereignty in Scotland)

MacCormick challenged the Queen's use of the numeral "Elizabeth II" in Scotland, arguing there had been no "Elizabeth I" in Scotland. The Court of Session dismissed the petition, holding it had no power to question Acts of Parliament (or royal prerogative matters). But Lord Cooper's obiter is significant: he doubted whether the doctrine of parliamentary sovereignty as understood in English law was part of Scots law, and suggested the Treaty of Union might impose justiciable limitations on Parliament. Influential in debates about the constitutional limits of sovereignty.

---

## Key Statutes to Know

- **Human Rights Act 1998** (ss 2, 3, 4, 6, 7, 8)
- **Senior Courts Act 1981, s.31** (judicial review procedure)
- **Parliament Acts 1911 and 1949** (Jackson v Attorney General)
- **Bill of Rights 1689** (freedom of speech in Parliament; no taxation without Parliament)
- **Constitutional Reform Act 2005** (Supreme Court; judicial independence)
- **Crown Proceedings Act 1947** (suits against the Crown)

---

## Exam Technique Note

Most LLB Public Law problem questions blend constitutional and administrative law in a single scenario. Common formula:
1. Identify whether prerogative or statutory power is in issue
2. Apply Lord Diplock's three heads from GCHQ: illegality / irrationality / procedural impropriety
3. If HRA rights are engaged, add proportionality (R (Daly))
4. Conclude on remedies (quashing order, mandatory order, declaration)