23. European Union Law in the United Kingdom Courts

This chapter discusses the reception of Community (now EU law) in the UK courts, and in particular how UK courts reconciled the doctrine of supremacy with the doctrine of parliamentary sovereignty. The chapter will examine three ways in which the UK courts have attempted to reconcile these competing doctrines: by constructing national law in light of EU law; by disapplying conflicting national law; and by reasserting national sovereignty and threatening not to apply EU law automatically. Finally, the chapter will briefly re-visit the case of Miller in order to evaluate that case in light of earlier cases on the relationship between UK and EU law.

18. Administrative Justice: Tribunals and Ombuds

This chapter considers the main ways in which disputes between individuals and public bodies are resolved outside the court system in what is widely referred to as the landscape of ‘administrative justice’. The discussions cover initial decision-making; accessing the administrative justice ‘system’; and the two pillars of administrative justice—tribunals and ombuds.

16. Introduction to Judicial and Dispute Resolution Functions

This chapter provides an overview of the themes covered in Part 4 of the book, consisting of Chapters 16 to 20. Chapter 17 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 18 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapter 19 examines the grounds on which the courts will judicially review the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.

15. Case Study: Constitutionally Contested Legislation

This chapter looks at the circumstances surrounding two events. The first is the 2005 decision of the UK Parliament to set up a committee to examine whether the constitutional conventions governing the relationship between the House of Lords and the House of Commons should be codified. The second is the decision of the Commons (and the Labour government) to press ahead and present the Hunting Bill 2004 for royal assent despite the opposition of the Lords to the policy of a total ban on hunting wild animals with dogs; the Lords preferred a policy of licensed hunting.

13. Primary Legislation

This chapter examines ‘primary legislation’, in the form of UK Acts of Parliament, and how they are made. The discussions cover who or what is the ‘legislature’ in the British constitution; the roles of different institutions in policymaking; drafting bills by Parliamentary Counsel; pre-legislative scrutiny of some ‘draft bills’ before the start the formal legislative process in Parliament ; the parliamentary year; parliamentary stages of a bill—first reading, second reading, committee stage, report stage, and third reading; bills of constitutional importance; the constitutional framework for bringing legislation into force; how government and Parliament carries out post-legislative scrutiny of some Acts of Parliament to review how they are operating in practice; and legislative functions in the British system of devolution.

10. Prerogative Powers

This chapter examines the meaning and the continuing significance of prerogative powers. Prerogative powers are those that were originally exercised by the Monarch before the modern parliamentary system was established. While most prerogative powers have now been replaced by statutory powers, prerogative powers remain important in some contexts, especially in relation to the conduct of the United Kingdom’s foreign affairs. In this context the decision of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union is of particular importance. The chapter is organized as follows. Section 2 considers the various legal foundations on which central government ministers may base their actions and compares prerogative and statutory powers. Section 3 examines prerogative power—a source of power possessed only by ministers in UK government and the monarch—in more detail. Section 4 considers the progress towards the reform of ministerial prerogatives.

1. Introduction to Constitutional Fundamentals

This introduction examines the ideas of constitutions as a text of fundamental importance, setting out how a country should be governed, and as a system of government. Also explored is the question why the United Kingdom has not adopted a codified constitution and the consequences of this.

19. Judicial Review

This chapter looks at judicial review. It considers its recent history, the constitutional foundations for judicial review, and some key issues relating to the practical use and effects of judicial review. It also surveys the grounds of judicial review, and examines what has happened when government and Parliament have attempted to oust judicial review.

9. Government and Accountability

This chapter examines the people and processes that comprise government in the UK. It considers the constitutional and legal status and role of the monarchy, ministers, civil servants, as well as holders of appointed public offices. It then turns to one of the central features of a good constitution, namely that it provides opportunities for those who exercise public power to be ‘held to account’ or ‘accountable’ for their decisions and conduct.

2. The Constitutional Rulebook

This chapter looks at the constitution of the United Kingdom to understand its function as a rulebook: for constitutional arrangements to work well, people need to know what the rules are and there also needs to be broad consensus that the rules are right. It explores the sources of the rules in the United Kingdom’s famously ‘unwritten’ constitution: these include Acts of Parliament, the common law, and constitutional conventions. It also considers the question: who makes the rulebook? To answer this, we must listen to a debate about the respective roles of politicians and judges (called ‘political constitutionalism’ and ‘common law’ or ‘legal’ constitutionalism).