Written in a clear and accessible style, the book provides a detailed exposition and analysis of the principles of constitutional law, the institutions of government, the relationship between the individual and the state, and administrative law Constitutional and Administrative Law is the definitive volume on this challenging subject and remains the leading text recommended for both undergraduate and postgraduate courses It is relied upon by lawyers, judges, politicians, political scientists and public administrators in the UK and beyond This new edition has been reorganised and its scope revised to meet the needs of students and lecturers Among the numerous developments in public law which it covers are: • • • The creation of fixed-term parliaments, and other changes made by the Coalition government since 2010 The Protection of Freedoms Act 2012 and the new legislation amending the law relating to terrorism The European Union Act 2011, intended to increase parliamentary and popular control over decisions made in Brussels • The growing impact of the Human Rights Act 1998 in giving effect to decisions by the European Court of Human Rights • • • The evolving right to privacy in light of continuing intrusion by the police and media Growth areas in judicial review challenges, such as proportionality and the public sector equality duty Increased secrecy in the work of courts, with use of ‘closed material procedures’ under common law and the Justice and Security Act 2013 ‘Constitutional and Administrative Law is unmatched in its coverage of the UK’s constitution, past, present and future The detail and insight into the UK’s constitutional arrangements make it essential reading for students and academics alike The authors ensure that the reader is guided through the complex issues raised by extensive references to primary materials, constitutional theory and indications for further reading Wholly recommended.’ Constitutional & Administrative Law This well-established text, now fully up-dated, provides an authoritative account of the public law of the United Kingdom, a dynamic and rapidly evolving area of study Sixteenth Edition Dr Paul James Cardwell, Reader at the School of Law, University of Sheffield Keith Ewing has been Professor of Public Law at King’s College London since 1989, having taught previously at the Universities of Edinburgh and Cambridge His books in the fields of civil liberties, electoral law and labour law include The Cost of Democracy (2007) and Bonfire of the Liberties (2010) Cover image © Getty Images Christopher Knight is a barrister at 11KBW Chambers who practises in public law He has taught administrative law at the University of Oxford and was a judicial assistant to the Justices of the Supreme Court in 2009–10 His publications include The New Tribunals Handbook (2011) and he is a contributor to The White Book A W Bradley K D Ewing C J S Knight Anthony Bradley was Professor of Constitutional Law at the University of Edinburgh before becoming a practising barrister in London From 2002 to 2005 he was legal adviser to the House of Lords Committee on the Constitution His publications include Janis, Kay and Bradley, European Human Rights Law: Text and Materials (3rd edition, 2008) Sixteenth Edition Constitutional & Administrative Law A W Bradley, K D Ewing & C J S Knight www.pearson-books.com CVR_BRAD4212_16_SE_CVR.indd 10/07/2014 13:29 CONSTITUTIONAL AND ADMINISTRATIVE LAW A01_BRAD4212_16_SE_FM.indd i 7/10/14 12:23 PM A01_BRAD4212_16_SE_FM.indd ii 7/10/14 12:23 PM CONSTITUTIONAL AND ADMINISTRATIVE LAW Sixteenth edition A W Bradley MA, LLM, LLD, QC (Hon) Emeritus Professor of Constitutional Law, University of Edinburgh; Barrister, of the Inner Temple; Institute of European and Comparative Law, University of Oxford K D Ewing LLB, PhD Professor of Public Law, King’s College, London C J S Knight MA, BCL Barrister, of the Inner Temple A01_BRAD4212_16_SE_FM.indd iii 7/10/14 12:23 PM PEARSON EDUCATION LIMITED Edinburgh Gate Harlow CM20 2JE United Kingdom Tel: +44 (0)1279 623623 Web: www.pearson.com/uk First, second, third, fourth editions 1931, 1935, 1946, 1950 E C S Wade and G G Phillips (print) Fifth, sixth editions 1955, 1960 E C S Wade (print) Seventh, eighth editions 1965, 1970 E C S Wade and A W Bradley (print) Ninth, tenth editions 1977, 1985 A W Bradley (print) Eleventh, twelfth, thirteenth, fourteenth, fifteenth editions 1993, 1997, 2003, 2007, 2011 A W Bradley and K D Ewing (print) Sixteenth edition published 2015 A W Bradley, K D Ewing and C J S Knight (print and electronic) © Pearson Education Limited 2015 (print and electronic) The rights of A W Bradley, K D Ewing and C J S Knight to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988 The print publication is protected by copyright Prior to any prohibited reproduction, storage in a retrieval system, distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise, permission should be obtained from the publisher or, where applicable, a licence permitting restricted copying in the United Kingdom should be obtained from the Copyright Licensing Agency Ltd, Saffron House, –10 Kirby Street, London EC1N 8TS The ePublication is protected by copyright and must not be copied, reproduced, transferred, distributed, leased, licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers, as allowed under the terms and conditions under which it was purchased, or as strictly permitted by applicable copyright law Any unauthorised distribution or use of this text may be a direct infringement of the authors’ and the publishers’ rights and those responsible may be liable in law accordingly Contains public sector information licensed under the Open Government Licence (OGL) v2.0 www.nationalarchives.gov.uk/doc/open-government-licence Pearson Education is not responsible for the content of third-party internet sites ISBN: 978-1-4479-0421-2 (print) 978-1-4479-0-4229 (PDF) 978-1-292-06660-8 (eText) British Library Cataloguing-in-Publication Data A catalogue record for the print edition is available from the British Library Library of Congress Cataloging-in-Publication Data Bradley, A W (Anthony Wilfred) author Constitutional and administrative law / A W Bradley MA LLM, LLD (Hon); K D Ewing LLB PhD; C Knight -Sixteenth edition pages cm First edition, 1931, by E.C.S Wade and G.G Phillips Includes bibliographical references and index ISBN 978-1-4479-0421-2 Constitutional law – Great Britain Civil rights – Great Britain Administrative law – Great Britain I Ewing, K D (Keith D.), author II Knight, Christopher (Lawyer), author III Title KD3930.W3 2014 342.41–dc23 2014019093 10 16 15 14 13 12 Cover image © Getty Images Print edition typeset in 10/11.5 pt Ehrhardt MT Std by 35 Print edition printed in Slovakia by Neografia NOTE THAT ANY PAGE CROSS-REFERENCES REFER TO THE PRINT EDITION A01_BRAD4212_16_SE_FM.indd iv 7/10/14 12:23 PM BRIEF CONTENTS Preface Table of legislation Table of cases Abbreviations xiii xv xxix lxvii PART I Sources, structure and principles Constitutional law – its meaning and sources The structure of the United Kingdom Parliamentary supremacy The rule of law Responsible and accountable government United Kingdom and the European Union 30 45 75 95 111 PART II The institutions of government 145 10 11 12 13 147 185 217 237 269 300 322 Composition of Parliament Role of Parliament Privileges of Parliament The Crown and royal prerogative Cabinet, government departments and civil service Public bodies and public appointments Courts and the administration of justice PART III Personal liberty and human rights 355 14 15 16 17 18 19 20 357 388 418 448 478 507 537 Human Rights Act Right to liberty and police powers Right to privacy and surveillance powers Right to freedom of expression Freedom of association and assembly State security and official secrets Special and emergency powers v A01_BRAD4212_16_SE_FM.indd v 7/10/14 12:23 PM Brief contents PART IV Administrative law 567 21 22 23 24 25 26 569 581 600 629 668 695 What is administrative law? Delegated legislation Administrative justice Judicial review I: the grounds of review Judicial review II: procedure and remedies Liability of public authorities Bibliography Index 731 739 vi A01_BRAD4212_16_SE_FM.indd vi 7/10/14 12:23 PM www.freebookslides.com CONTENTS Preface Table of legislation Table of cases Abbreviations xiii xv xxix lxvii PART I Sources, structure and principles 1 Constitutional law – its meaning and sources A Constitutional law – its meaning and scope B The formal sources of constitutional law C Other rules and principles, including constitutional conventions 11 18 The structure of the United Kingdom 30 A The historic structure B Devolution of government 30 36 Parliamentary supremacy 45 A B C D E 45 49 55 69 72 The growth of the legislative authority of Parliament Meaning of legislative supremacy The continuing nature of parliamentary supremacy The Treaty of Union between England and Scotland Conclusions The rule of law 75 A Historical development B The rule of law and its implications today C The separation of powers 77 81 88 Responsible and accountable government 95 A The background B Collective responsibility C Individual responsibility of ministers 95 98 101 United Kingdom and the European Union 111 A B C D E F 112 119 129 133 139 143 European Union institutions European Union law EU law and British constitutional law Response of the courts European Union Act 2011: sovereignty revisited Conclusion vii A01_BRAD4212_16_SE_FM.indd vii 7/10/14 12:23 PM www.freebookslides.com Contents PART II The institutions of government 145 Composition of Parliament 147 A B C D E F G H I J 147 151 155 159 163 168 172 176 180 The electoral system Distribution of constituencies Political parties The conduct of elections Supervision of elections Electoral systems and electoral reform Membership of the House of Commons The House of Lords Membership of the House of Lords Conclusion 184 Role of Parliament 185 A B C D E F 185 186 194 201 208 215 The functions of Parliament Authorising expenditure and providing income Enacting legislation – House of Commons procedure Enacting legislation – House of Lords and after Scrutiny of the administration Conclusion Privileges of Parliament 217 A House of Commons B Financial interests and payment of members C House of Lords 217 229 235 10 The Crown and royal prerogative 237 A B C D E F 237 242 248 250 259 267 The monarchy Personal prerogatives of the monarch The Queen in Council The royal prerogative The royal prerogative and the courts Conclusion 11 Cabinet, government departments and civil service 269 A B C D E F G The Prime Minister The Cabinet Ministers and departments Civil service: organisation and accountability Civil service: ethics and standards Open government and freedom of information Conclusion 270 273 278 282 288 293 299 12 Public bodies and public appointments 300 A Evolution B Categories of public body 301 303 viii A01_BRAD4212_16_SE_FM.indd viii 7/10/14 12:23 PM www.freebookslides.com Contents C D E F G Status, functions and powers Appointments to public bodies Legality and accountability Reform Conclusion 307 311 315 318 321 13 Courts and the administration of justice 322 A B C D E F 322 327 332 342 347 352 Judiciary and judicial appointments Independence of the judiciary Administration of justice and contempt of court The executive and the machinery of justice Prosecution of offenders and miscarriages of justice Conclusion PART III Personal liberty and human rights 355 14 Human Rights Act 357 A B C D E The classical approach European Convention on Human Rights The Human Rights Act 1998 Enhanced Parliamentary scrutiny Conclusion 357 359 370 383 385 15 Right to liberty and police powers 388 A B C D E F G 389 390 395 399 406 412 416 Police powers short of arrest Police powers of arrest Detention and questioning of suspects Police powers of entry, search and seizure Remedies for abuse of police powers Accountability and control of the police Conclusion 16 Right to privacy and surveillance powers 418 A B C D E F G The case for protection Surveillance: acquiring information Interception of communications Storing and processing information Police databases Privacy and the press Conclusion 419 420 425 431 438 442 446 17 Right to freedom of expression 448 A B C D 448 450 453 458 The nature of legal protection Prior restraint: censorship and ownership Regulation of television and radio Offences against public order ix A01_BRAD4212_16_SE_FM.indd ix 7/10/14 12:23 PM ... and principles 1 Constitutional law – its meaning and sources A Constitutional law – its meaning and scope B The formal sources of constitutional law C Other rules and principles, including constitutional. .. 542 547 552 558 561 565 PART IV Administrative law 567 21 What is administrative law? 569 A The functions and development of administrative law B Law and the administrative process C Conclusion.. .CONSTITUTIONAL AND ADMINISTRATIVE LAW A01_BRAD4212_16_SE_FM.indd i 7/10/14 12:23 PM A01_BRAD4212_16_SE_FM.indd ii 7/10/14 12:23 PM CONSTITUTIONAL AND ADMINISTRATIVE LAW Sixteenth