15. The European Convention on Human Rights and the Human Rights Act 1998

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts' historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

9. Devolution and local government

Devolution is a recent addition to the UK constitutional law vocabulary. The concept refers to the decentralisation of power from central institutions in London to regional institutions exercising executive and legislative authority in Scotland, Wales, and Northern Ireland. This chapter explores the principle of devolution, both in terms of its historical development and its constitutional importance. It discusses recent issues and debates relevant to the role that it continues to play in the UK Constitution through the established institutions in Scotland, Wales, and Northern Ireland. All this is tied together in consideration of a problem scenario which encourages discussion of the powers of the devolved institutions and their relationship with centralised authority at Westminster.

1. The UK Constitution

This chapter provides an introduction to the UK Constitution and sets out a foundation upon which discussions in later chapters further develop. It starts by exploring definitions of constitutions, placing the unique UK system within commonly accepted themes and characteristics. It then moves to explain the nature and form of the UK Constitution and some of the sources of which it is constructed, as well as exploring some of the more theoretical considerations as regards its character, including the way in which it is legitimised. The final section entertains academic questions concerning whether or not the UK can be said to have a constitution, including discussion of the case for and against a codified system.

10. Judicial review: access to review and remedies

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

7. Central government

This chapter examines the structure and role of central government, with the latter part focusing on the key constitutional requirement that the government is accountable to the people through Parliament, reflecting the democratic nature of the constitution. The phrase ‘central government’ refers to the Prime Minister, Cabinet, ministers, government departments, and civil servants. Informally, these parts of central government are often referred to as ‘Whitehall’, reflecting how most government departments and the Prime Minister are based around that area of central London close to Westminster. A more constitutionally appropriate phrase is the ‘executive’. However, this term can also be taken to mean other elements which include the governments of Scotland, Northern Ireland, and Wales, as well as local government and organisations such as the police.

5. Parliamentary sovereignty, the European Union, and Brexit

This chapter explains the process and significance of the UK's membership in the EU and sets out the authorities underpinning the supremacy of EU law, accepted and established prior to the UK's accession. It then explores cases — from the early 1970s to the present day — which consider the ways in which EU membership has impacted on Parliament's sovereignty. Following this, the chapter explores the legal and political landscape of the UK's departure from the EU. It considers the process through which Brexit is happening and the manner in which the constitution will provide the foundation for a working relationship with the EU in the future and establish a stable system in the UK post-Brexit, looking particularly at the European Union (Withdrawal) Bill and its underpinning White Paper.

6. The royal prerogative and constitutional conventions

This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government are part of the royal prerogative, as recognised by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.

3. The rule of law

This chapter starts by defining the rule of law, explaining its importance and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution — (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern day authorities.

2. The institutions of government and the separation of powers

This chapter explores the key institutions — the legislature, the executive, and the judiciary — and considers the relevance of the principle of the separation of powers in respect of the UK Constitution. It begins with a discussion of the functions fulfilled by these institutions, including an examination of their structure and key roles, allowing fuller exploration of the separation of powers doctrine in the UK Constitution. In respect of this, the chapter identifies a common distinction drawn between what is known as the pure and partial separation of powers. One favours total separation, the latter allowing a degree of overlap to the point of ensuring a system of checks and balances. Application of this distinction enables broader exploration of the UK's application of the separation of powers doctrine.

14. Administrative justice: tribunals, ombudsmen, and public inquiries

This chapter discusses the concept of administrative justice. The complexity and scale of modern government means that it is inevitable that sometimes things will go wrong. Public bodies make hundreds of thousands of decisions each year. Sometimes, the pressures of making thousands of decisions on finite resources mean that public bodies may not treat members of the public appropriately and not fulfil the aims of good government. When things go wrong, some will wish to challenge decisions made by the public authorities. Although such disputes are usually resolved by the courts applying the principles of judicial review, alternatives such as statutory tribunals, the ombudsman, and public inquiry provide other ways to challenge decisions made by public bodies. These three procedures form the basis of the system of administrative justice.