Preface
Table of Cases
Table of Statutes
Table of international and European Legislation

PART A SEARCHING FOR PRINCIPLES
1 PRINCIPLES IN PUBLIC LAW
1.1 ASK YOURSELF TI-IIS
1.2 HOW WE ORGANISE OURSELVES
1.3 THE SCOPE OF PUBLIC LAW
1.4 WHAT ARE PRINCIPLES?
1.4.1 Principies and reason
1.5 PRINCIPLES AND LEGAL RULES
1.6 THE CHARACTERISTICS OF LIBERAL DEMOCRACY
1.6.1 Autonorny
1.6.2 Popular participation
1.6.3 Securing safety and welfare
1.6.4 The future of liberal democracy: consensus or crisis?
1.7 CONSTITUTIONS IN LIBERAL DEMOCRACIES
1.7.1 Autonomy and constitutions
1.7.2 Democracy and the constitution
1.7.3 Safety and security from the constitution
1.7.4 Mediating tensions between constitutional goals
SUMMARY OF CHAPTER 1

2 THE NEW CONSTITUTIONAL SETTLEMENT
2.1 INTRODUCTION
2.2 ALLOCATING DECISION MAKING POWERS
2.3 ALLOCATION OF COMPETENCES BETWEEN THE EC AND THE UK
2.4 ALLOCATION OF COMPETENCES WITHIN THE UK
2.4.1 Difficulties in mapping out competences within the UK
2.4.2 The UK Parliament
2.4.3 Government of the UK
2.5 SCOTLAND
2.5.1 The competence of the Scottish Parliament
2.5.2 The Scottish Administration
2.6 NORTHERN IRELAND
2.6.1 The Northern Ireland Assembly
2.6.2 Northern Ireland executive bodies
2.6.3 The North-South Ministerial Council
2.7 WALES
2.8 'INTERGOVERNMENTAL RELATIONS' WITHIN THE UK
2.8.1 Self-scrutiny of Bilis before introduction
2.8.2 The roles of the Secretaries of State for Scotland, Northern Ireland and Wales
2.8.3 Concordats
2.8.4 Adjudication by the Privy Council and other courts
2.9 LOCAL GOVERNANCE
2.9.1 Local authorities
2.9.2 The police
2.10 THE JUDICIARY
2.11 CONSTITUTIONAL MONARCHY
2.12 GLOBALISATION: THE WORLD OUTSIDE THE UK
2.12.1 Treaties and international organisations
SUMMARY OF CHAPTER 2

3 PRINCIPLES FROM HISTORY
3.1 THE IMPORTANCE OF HISTORY
3.1.1 The need for caution
3.1.2 Principie and pra gmatism
3.2 THE NORMAN CONQUEST AND FEIJDALISM
3.3 MAGNA CARTA 1215
3.4 THE 15TH CENTURY: THE WARS OF THE ROSES AND THE LOSS OF FRANCE
3.5 THE I6TH CENTURY AND THE PROTESTANT REFORMATION
3.6 THE I7TH CENTURY: THE CIVIL WAR, THE RESTORATION AND THE GLORJOUS REVOLUT1ON
3.6.1 Conflicts in Parliament and the courts
3.6.2 The outbreak of the Civil War
3.6.3 The Commonwealth under Cromwell
3.6.4 The Restoration of the monarchy
3.6.5 A papist king for a Protestant State?
3.6.6 The Glonous Revolution
3.7 THE 18TH CENTURY AND THE ENLIGHTENMENT
3.7.1 Rationality and radicalism
3.7.2 Revolution in America and France
3.8 THE 19TH CENTURY
3.8.1 The creation of the UK
3.8.2 The Industrial Revolution
3.8.3 Extending the franchise
3.8.4 The administrative revolution
3.9 THE 20TH CENTURY
3.9.1 The Welfare State and democracy
3.9.2 Foreign relations
3.9.3 The inter-war economic depression
3.9.4 The 1945 Labour Government
3.9.5 Building the new Europe
3.10 CONCLUSIONS
SUMMARY OF CHAPTER 3

4 POLITICIANS AND THEIR PRINCIPLES
4.1 THE IMPORTANCE OF POLITICAL PARTIES
4.2 NEW GOVERNMENTS, NEW CONSTITUTION
4.3 DO POL1TICIANS HAVE ANY PRINCIPLES?
4.4 THE CONSERVATIVES AND THE CONSTITUTION
4.4.1 Conservatives and autonomy
4.4.2 Conservatives and democracy
4.4.3 'Established usage' as an alternative to dernocracy
4.4.4 Markets as an alternative to dernocracy
4.4.5 Conservatives and security and welfare
4.4.6 Accountability and efficiency: the 'great codification'
4.5 LABOUR AND THE CONSTITUTION
4.5.1 Labour and autonomy
4.5.2 Labour and dernocracy
4.5.3 Labour on security and welfare
4.5.4 Conservative response to Labour reforms
4.6 CONCLUSION
SUMMARY OF CHAPTER 4

5 TEXTBOOK WRITERS AND THEIR PRINCIPLES
5.1 INTRODUCTION
5.1.1 A biographical sketch
5.1.2 How to read Dicey
5.1.3 Dicey's critics
5.2 DICEY'S UNDERSTANDING OF PARLIAMENTARY SOVEREIGNTY
5.2.1 Dicey's conception of dernocracy
5.2.2 Jennings attacks Dicey's view of parliamentary sovereignty
5.2.3 Can the cominon law provide a basis for declaring Acts of Parliament unconstitutionli?
5.2.4 The power of the courts to 'disapply' statutory provisions as incompatible with European Community law
5.2.5 The Human Rights Act 1998
5.3 DICEY'S VIEW OF THE RULE OF LAW
5.3.1 Jennings' criticisms of Dicey's rule of law
5.3.2 The mie of law and Parliament
5.3.3 The rule of law and governmental discretion
5.4 DICEY ON CONSTITUTIONAL CONVENTIONS
5.4.1 Jennings on conventions
5.6 CONCLUSION
SUMMARY OF CHAPTER 5

PART B PARLIAMENT AND GOVERNMENT
6 THE UK PARLIAMENT
6.1 PARLIAMENT: FROM SOVEREIGNTY TO POWER-SHARING
6.2 WHAT IS THE PO[NT OF PARLIAMENT?
6.3 THAT MPS ARE REPRESENTATIVE
6.4 THAT MPS ARE FAIRLY ELECTED
6.4.1 First past the post elections
6.4.2 The unelected upper chamber
6.4.3 The composition of MPs and peers
6.5 THAT PARLIAMENT ENACTS LEGISLATION
6.5.1 Primary legislation
6.5.2 Subordinate legislation
6.6 ONCE ELECTED, MPS SHOIJLD BE ABLE TO SPEAK OUT ON ANY ISSUE
6.7 THAT MPS ARE NOT CORRUPT OR DISHONEST
6.8 THAT MPS AND PEERS CALL THE GOVERNMENT TO ACCOUNT
6.9 PARLIAMENT'S DIMINISHJNG IMPORTANCE
SUMMARY OF CHAPTER 6

7 THE EUROPEAN UNION
7.1 INTRODUCTION
7.2 THE LEGAL BASE OF THE EUROPEAN UNION
7.2.1 The first pular: the European Community
7.2.2 The second pular: common foreign and security policy
7.2.3The third pilhar: criminal matters
7.2.4 Sole and shared competences
7.3 IS THERE A EUROPEAN CONSTITUT1ON?
7.4 THE EUROPEAN UNION AND PRINCIPLES OF LIBERAL DEMOCRACY
7.4.1 Personal autonomy and the European Llnion
7.4.2 Popular participation in the European Union
7.4.3 Security and welfare through the European Union
7.5 THE INSTITUTIONS
7.5.1 The Commission
7.5.2 The European Pariiament
7.5.3 The Council
7.5.4 The European Council
7.5.5 The European Court of Justice and the Court of First Instance
7.6 HOW THE COMMUNITY LEGISLATES
7.6.1 Regulations
7.6.2 Directives
7.7 INSTITUTIONS AND PROCESSES IN THE SECOND AND THIRD PILLARS
7.7.1 The second pular: common foreign and security poiicy
7.7.2 Third pilar
7.8 CONSTITUTIONAL RELATIONSHIPS BETWEEN THE UK,THE UNION AND CITIZENS
7.8. Loyalty to the project
7.8.2 Negotiating opt-outs at the treaty revisions
7.8.3 The principie of subsidiarity
7.8.4 Closer co-operation
7.9 COMMUNITY LAW IN NATIONAL LEGAL SYSTEMS
7.9.1 Primacy of Community iaw
7.9.2 Direct effect of Community Iaw
7.9.3 Principie of consistent interpretation
7.9.4 Compensation for breach of Community law
7.10 CONCLUSIONS
SUMMARY OF CHAPTER 7

8 GOVERNMENT AND ADMINISTRATION
8.1 INTRODUCTION
8.1.1 The constitutional status of public officials
8.1.2 Political neutrality
8.2 TYPES OF ADMINISTRATIVE BODIES
8.2.1 Executive agencies
8.2.2 Regulatory bodies
8.2.3 Self-regulatory organisations
8.2.4 Advisory bodies
8.2.5 Local authorities
8.2.6 Administration in the European Community
8.3 TYPES OF DECISION MAKING
8.3.1 Rules
8.3.2 The 'rules' versus 'discretion' debate
8.3.3 Policies
8.3.4 oft iaw in the European Community
8.4 ACCOIJNTABILITY AND CONTROL
8.5 THE ADVANTAGES AND DISADVANTAGES OF ADMINISTRATIVE RULES
SUMMARY OF CHAPTER 8

PART C RESOLVING DISPUTES
9 INTRODUCTION TO DISPUTE RESOLUTION
9.1 WHY DISPUTE RESOLUTION IS IMPORTANT
9.2 TYPES OF DISPUTE
9.2.1 Disputes about the existence of legal power
9.2.2 Disputes about the manner in. which decisions are made
9.2.3 Disputes about the motives of public officials
9.2.4 Disputes about wrong conclusions
9.3TYPES OF DISPUTE RESOLUTION
9.3.1 Intemal complaints procedures
9.3.2Ombudsmen
9.3.3 Tribunais
9.3.4 Courts
9.4 CONCLUSIONS SUMMARY OF CHAPTER 9

10 COMMISSIONERS FOR ADMINISTRATION ('OMBUDSMEN')
10.1 WHO ARE THE OMBUDSMEN?
10.2 INJUSTICE AS A CONSEQUENCE OF MALADMINISTRATION
10.3 THE STATISTICS
10.4 LIMITS ON THE OMBUDSMEN'S POWERS
10.5 THE OMBUDSMAN PROCESS
10.5.1 The PCA
10.5.2 Access to other ombudsmen
10.5.3 The ombudsman filter
10.5.4 The investigation
10.5.5 The report
10.5.6 The response to the report
10.5.7 The ombudsman reacts
10.6 THE BARLOW CLOWES AFFAIR
10.6.1 The background
10.6.2 The report of the PCA
10.6.3 The government's response
10.6.4 General lessons
10.7 THE FUTURE FOR OMBUDSMEN
10.7.1 Fire fighting and tire watching
10.7.2 Ombudsmen and internal complaints procedures
SUMMARY OF CHAPTER 10

11 INTRODUCTION TO JUDICIAL REVIEW
11.1 JUDICIAL REVIEW IN THE UK
11.2 THE GROUNDS OF REVIEW
11.2.1 Iilegality
11.2.2 Procedural impropriety
11.2.3 Irrationality
11.2.4 Other heads of judicial review
11.3 THE CONSTITUTIONAL BASIS OF THE COURT'S POWER TO INTERVENE
11.3.1 The traditional analysis: ultra vires
11.3.2 System of review versus system of appeals
11.3.3 The concept of jurisdiction
11.3.4 Summary of the ultra vires doctrine
11.4 PROBLEMS WITH THE TRADITIONALANALYSIS
11.4.1 Ultra vires is artificial in some situations
11.4.2 Existence of 'error of law on the face of the record'
11.4.3 The court's ability to review the exercise of prerogative powers
11.4.4 The court's discretion to refuse a remedy
11.5 A NEW THEORY OF JUDICIAL REVIEW? SUMMARY OF CHAPTER 11

12 GROUNDS OF JUDICIAL REVIEW 1: ILLEGALITY
12.1 INTRODUCTION
12.2 ACTING 'OUTSIDE THE FOUR CORNERS'
12.3 'INCIDENTAL' POWERS
12.4 RELEVANT AND IRRELEVANT CONSIDERATIONS
12.5 TMPROPER PURPOSE
12.6 FETTERING OF DISCRETION
12.7 DELEGATION OF DISCRETION
12.8 ERRORS OF LAW AND FACT
12.8.1 Errors of law versus errors of fact
12.8.2 Reviewable and non-reviewable errors of fact
12.9 ARE ALL ERRORS OF LAW REVIEWABLE?
12.10 A PRACTICAL APPROACH TO ERRORS OF LAW SUMMARY OF CHAPTER 1213 GROUNDS OF JUDICIAL REVIEW II: FAIR HEARINGS AND THE RULE AGAINST BIAS

13.1 INTRODUCTION
13.2 TERMINOLOGY: A BRIEF HISTORY
Principies of Public Law
13.3 A FRAMEWORK FOR THINKING ABOUT THE RIGHT TO A FAIR HEARING
13.4 WHEN 15 FAIR HEARING REQUIRED?
13.4.1 'Judiciai/administrative' and 'rights/privileges'
13.4.2 Rigid distinctions swept away
13.4.3 Fair hearings and licertsing decisions
13.4.4 Summary of entitlement
13.5 RESTRICTIONS ON ENTITLEMENT TO A HEARING
13.5.1 Express statutory exclusion
13.5.2 Implied statutory exclusion
13.5.3 Where a hearing, or disclosure of information,would be prejudicial to the public interest
13.5.4 In an emergency
13.5.5 Where it is administratively impracticable to require a hearing
13.5.6 Where the unfair decision has been 'cured' by a fair appeal
13.5.7 Where the decision is oniy preliminary to a subsequente decision before which a hearing wil be given
13.5.8 Where the error made 'no differerice' to the result, or where a hearing would be futile
13.6 CONTENT OF THE FAIR HEARING
13.6.1 Disclosure to the applicant of the case to be met
13.6.2 Written representations versus oral hearings
13.6.3 Statutory consultation
13.6.4 The right to cali witnesses
13.6.5 The right to legal representation and to cross-examination of witnesses
13.6.6 The right to reasons for the decision
13.7 THE RULE AGAINST BIAS - INTRODUCTION
13.8 BIAS AND THE APPEARANCE OF BIAS
13.9 THE TEST FOR THE APPEARANCE OF BIAS
13.10 DIRECT PECUNIARY INTEREST
13.11 DIFFERENT MANIFESTATIONS OF BIAS
13.12 MINISTERIAL BIAS
13.13 EXCEI'TIONS: WHERE BIAS WILL NOT INVALIDATE A DECISION
SUMMARY OF CHAPTER 13

14 GROUNDS OF JUDICIAL REVIEW III: LEGITIMATE EXPECTATION
14.1 INTRODUCTION
14.2 THE DOCTRINE
14.3 DISTINGUISHING LEGITIMATE EXPECTATIONS FROM
THE RIGHT TO A FAIR HEARING
14.4 SUBSTANTIVE PROTECTION OF LEGITIMATE
EXPECTATIONS?
SUMMARY OF CHAPTER 14

15 GROUNDS OF JUDICIAL REVIEW IV: IRRATIONALITY
15.1 INTRODUCTION
15.2 JUDICIAL REVIEW OF THE 'MERITS'?
15.3 WEDNESBURY UNREASONABLENESS
15.4 IRRATIONALITY
15.5 SUBSTANTIVE PRINCIPLES OF REVIEW?
15.5.1 Decisions affecting fundamental human rights
15.5.2 Decisions subject to reduced scrutiny?
15.5.3 Other substantive principles of review
15.6 THE DOCTRINE OF PROPORTIONALITY
SUMMARY OF CHAPTER 15

16 RESTRICTIONS ON REVIEW: OUSTER CLAUSES
16.1 INTRODUCTION
16.2 TWO TYPES OF OUSTER CLAUSE
16.3 GENERAL PRINCIPLES: THE COURT'S ATITUDE TO OUSTER CLAUSES
16.4 SIX WEEK OUSTER CLAUSES
16.5 TOTAL OUSTER CLAUSES
16.6 'SUPER-OUSTER CLAUSES'?
SUMMARY OF CHAPTER 16

17 JUDICIAL REVIEW PROCEDURES AND REMEDIES
17.1 ACCESS TO JUSTICE
17.2 EXHAUSTING ALTERNATIVE REMEDIES
17.3 USING THE ORD 53 PROCEDURE
17.3.1 Obtaining the permission of the court
17.3.2 The interlocutory period
17.3.3 The fuli hearing
17.4 REMEDIES
17.5 WHO MAY APPLY FOR JUDICIAL REVIEW?
17.5.1 Strict approaches
17.5.2 Whittling away the threshold
17.6 WHICH DECISIONS MAY BE CHALLENGED BY JUDICIAL REVIEW?
17.6.1 Source of power test
17.6.2 Functions test
17.7 DO LITIGANTS HAVE TO USE ORD 53?
SUMMARY OF CHAPTER 17

18 EUROPEAN COMMUNITY LITIGATION
18.1 INTRODUCTION
18.2 EUROPEAN COMMUNITY LAW IN NATIONAL LEGAL SYSTEMS
18.2.1 Preliminary references under Art
18.2.2 Chailenging Community Iaw in national courts
18.3 DIRECT PROCEEDINGS BEFORE THE COURT OF JUSTICE
18.3.1 Annulnient actions
18.3.2 Enforcement proceedings by the Commission
18.3.3 Tortious claims against the Comnumity
SUMMARY OF CHAPTER 18

PART D CIVIL LIBERTIES AND HUMAN RIGHTS
19 CIVIL LIBERTIES AND HUMAN RIGHTS
19.1 INTRODUCTION
19.2 CIVIL LIBERTIES
19.3 HUMAN RIGHTS
19.4 WHAT IS THE SOURCE OF HUMAN RIGHTS AND ARE THEY UNIVERSAL?
19.5 THE EUROPEAN CONVENTION ON HUMAN RIGHTS
19.5.1 Derogations and reservations
19.6 THE EUROPEAN COURT OF HUMAN RIGHTS
19.7 PROCEDURES AND REMEDIES IN THE EUROPEAN COURT OF HUMAN RIGHT
19.8 WHO MAY BE AN APPLICANT IN STRASBOURG?
19.9 WHO IS SUBJECT TO CHALLENGE IN STRASBOURG?
19.10 THE HUMAN RIGHTS ACT 1998
19.10.1 The duty of interpretation
19.10.2 Declarations of incompatibility
19.10.3 Remedial orders in Parliament
19.10.4 Using the ECHR as a ground of judicial review or appeal
19.10.5 Standing to apply for judicial review on ECHR grounds
19.10.6 Damages for violation of the ECHR
19.11 HUMAN RIGHTS AND EUROPEAN COMMUNITY LAW
19.12 A TRIUMPH FOR JUDGES OVER ELECTED REPRESENTATIVES?
SUMMARY OF CHAPTER 19

20 RIGHT TO LIFE
20.1 INTRODUCTION
20.2 STATE KILLING
20.3 DUTY TO PREVENT DEATH
20.4 ASYLUM, DEPORTATION AND EXTRADITION
20.5 THE RIGHT TO MEDICAL TREATMENT
20.6 THE RIGHT TO REFUSE MEDICAL TREATMENT
20.7 PRE-BIRTH MEDICAL INTERVENTION
20.8 ASSESSMENT
SUMMARY OF CHAPTER 20

21 LIBERTY OF THE PERSON
21.1 INTRODUCTION
21.2 POLICIE POWERS DURING CRIMINAL INVESTIGATIONS
21.2.1 Arrests
21.2.2 Police interrogation
21.2.3 Duration of detention
21.2.4 III treatment during interrogation
21.3 THE CONDUCT OF CRIMINAL TRIALS
21.3.1 Criminal and civil triais distinguished
21.3.2 TnaI by jury
21.3.4 Self-incrimination and the right to silence
21.3.5 Right to cross-examination
21.3.6 Imprisonment after conviction
21.4 DETENTION OUTSIDE THE CRIMINAL JUSTICE SYSTEM
21.4.1 The detention of immigrants
21.4.2 The detention of the mentally iii
21.4.3 Proposais for preventive detention
21.5 HABEAS CORPUS
21.6 ASSESSMENT
SUMMARY OF CHAPTER 21

22 RETROSPECTIVITY
22.1 INTRODUCTION
22.2 RETROSPECTIVE CIVIL MEASURES
22.3 RETROSPECT1VE CRIMINAL MEASIJRES
22.4 ASSESSMENT
SUMMARY OF CHAPTER 22

23 PRIVACY
23.1 INTRODUCTION
23.2 RIGHTS TO PRIVACY AGAINST THE STATE
23.2.1 Secret surveiliance by the police and security services
23.2.2 The police and entry and search powers
23.2.3 The European Commission
23.2.4 Search orders
23.2.5 Private information held by public authorities
23.2.6 The Data Protection Act 1998
23.2.7 lmmigration decisions
23.2.8 Family relationships
23.2.9 Sexual activity
23.2.10 Children
23.3. THE RIGHT TO PRIVACY AGAINST PRI VATE BODIES: THE NEWS MEDIA
23.4 ASSESSMENT
23.4.1 Rights of privacy against the State
23.4.2 Rights of privacy against private parties
SUMMARY OF CHAPTER 23

24 FREEDOM OF EXPRESSION
24.1 INTRODUCTION
24.2 PROTECTION OF FREEDOM OF EXPRESSION
24.3 NATIONAL SECURITY AND THE IMPARTIALITY OF THE JUDICIARY
24.3.1 Confidentiality and national security
24.3.2 Contempt of court
24.3.3 Protection of sources
24.3.4 Whistleblowers
24.3.5 Offlcial Secrets Acts
24.3.6 Broadcasting controis
24.4 THE REPUTATION OF OTHERS
24.5 THE RIGHTS OF OTHERS
24.6 PROTECTION OF HEALTH OR MORALS
24.7 MEDIA REGULATION
24.8 ACCESS TO INFORMATION
24.8.1 Access to information under the ECHR
24.8.2 Access to information in the European Community
24.10 ASSESSMENT
SUMMARY OF CHAPTER 24

25 FREEDOM OF ASSEMBLY AND ASSOCIATION
25.1 INTRODUCTION
25.2 BREACH OF THE PEACE
25.3 BINDING OVER ORDERS
25.4 OBSTRUCTION OF THE HIGHWAY
25.5 NUISANCE ACTIONS
25.6 TRESPASS AND PRIVATE PROPERTY
25.7 THE PUBLIC ORDER ACT 1986
25.7.1 Processions
25.7.2 Assemblies
25.7.3 Trespassory assemblies
25.7.4 Disorderly behaviour
25.7.5Harassment
25.7 FREEDOM OF ASSEMBLY VERSUS FREE MOVEMENT OF GOODS
25.8 RESTRICTIONS ON THE FREEDOM OF ASSOCIATION
25.9 ASSESSMENT
SUMMARY OF CHAVFER 25

26 EQUALITY
26.1 INTRODUCTION
26.2 THE SCOPE OF ANTI-DISCRIMINATION LAWS
26.2.1 The scope of Art 14
26.2.2 Anti-discrimination legislation
26.2.3 Justified discrimination
26.3 EQUALITY IN EUROPEAN COMMIJNITY LAW
26.3.1 Sex discrimination in European Community law
26.3.2 Justified discrimination: objective grounds in European Community law
26.3.3 Positive discrimination in European Community law
26.3.4 Discrimination on grounds of nationality in European Community law
26.3.5 Equality as a general principie of European Community law
26.4 DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
26.4.1 Homosexuals
26.4.2 Transsexuals
26.5 ASSESSMENT
SUMMARY OF CHAPTER 26

27 FREEDOM OF MOVEMENT
27.1 INTRODUCTION
27.1.1 The scope of freedom of movement
27.2 MOVEMENT OUT OF THE UK
27.3 MOVEMENT INTO THE LTK
27.3.1 Nationals
27.3.2 Non-nationals
27.4 INVOLUNTARY REMOVAL FROM THE UK
27.5 MOVEMENT WITHIN THE UK
27.6 FREEDOM OF MOVEMENT IN THE EUROPEAN UNION
27.6.1 Economic actors
27.6.2 Olher European Cornmunity nationais
27.6.3 Derogations from rights of free movement
27.7 'AN EVER CLOSER UNION': RIGHTS OF MOVEMENT FOR EUROPEAN UNION CITIZENS
27.8 ASYLUM
27.9 ASSESSMENT
SUMMARY OF CHAPTER 27
BIBLIOGRAPHY
Index