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contents Preface to the fourth edition v Table of statutes xix Table of treaties and agreements xx List of cases xxi defining the constitution? 1 The meaning(s) of `democracy'? The first `modern' constitution? The problem – majoritarianism The solutions – representative government, federalism, a separation of powers, and supra-legislative `fundamental' rights Conclusion parliamentary sovereignty 21 Pre-1688 – natural or divine law The Diceyan (or orthodox) theory The political source of parliamentary sovereignty – the `Glorious Revolution' Legal authority for the principle of parliamentary sovereignty Substance or procedure? The enrolled bill rule The doctrine of implied repeal Inconsistency with international law Entrenching legislation – challenges to the orthodox position Jennings' critique and the `rule of recognition' Is parliamentary sovereignty a British or English concept? Women's enfranchisement Conclusion the rule of law and the separation of powers 56 The Diceyan perspective: the rule of law in the pre-welfare state Entick v Carrington Dicey's rule of law – process or substance? The `independence of the judiciary' The rule of law in the welfare state Hayek – the road to serfdom Jones – the rule of law in the welfare state Judicial regulation of government behaviour: the constitutional rationale Principles of statutory interpretation Liversidge v Anderson R v IRC, ex p Rossminster Ltd Conclusion Stare decisis Parliamentary sovereignty v the rule of law Ouster clauses – Gilmore and Anisminic Retrospective law-making Retrospectivity in legislation – the War Damage Act 1965 Retrospectivity at common law? Rape within marriage Conclusion the royal prerogative 94 The source of prerogative powers Post 1688 – the revolutionary settlement The relationship between statute, the prerogative and the rule of law A-G v De Keyser's Royal Hotel Ltd Fitzgerald v Muldoon Laker Airways Ltd v Department of Trade R v Secretary of State for the Home Department, ex p Fire Brigades Union The traditional perspective on judicial review of prerogative powers: and its erosion Developments in the 1960s and 1970s Full reviewability – the GCHQ case Post-GCHQ developments R v Secretary of State for the Home Department, ex p Northumbria Police Authority Foreign affairs? Excluded categories: a shrinking list? `Justiciability' revisited – are all statutory powers subject to full review? Conclusion the house of commons 128 Crown and Commons – the original intent and the subsequent rise of `party' politics The fusion of powers, the rise of the party system and Cabinet dominance of the Commons Setting the context The sources of the Commons' procedural rules The Speaker Resources The passage of legislation The second reading Standing committees Report and third reading Conclusion Private member's Bills Private Bills Hybrid Bills Delegated legislation `Henry VIII clauses' Conclusion Controlling the executive Motions on the floor of the house Emergency debates and adjournment debates Questions to Ministers Prime Ministerial accountability on the floor of the house Early Day Motions Questions for written answer Informal processes The departmental select committee system Conclusion the house of lords 172 Bicameral legislatures: a functionalist justification The historical background Co-equality to complementarity: a conventional change Lloyd George and the `People's Budget' The Parliament Act 1911 The Salisbury Doctrine and the Parliament Act 1949 The House of Lords in the modern era Life Peerages The 1968 reforms The 1974–1979 Parliament The House of Lords and the Thatcher governments The work of the House of Lords today Deliberation Revision of legislation Control of delegated legislation Scrutiny of the executive The 1999 reforms The `reformed' House of Lords The recommendations of the Wakeham Commission The 2001 White Paper One Parliament or three: Jackson v Attorney-General Conclusion the electoral system 221 The evolution of a `democratic' electoral system? The Great Reform Act 1832 Chartism and the pursuit of a `democratic' electoral system The 1867–1884 reforms: towards a universal `right' to vote and a `fair' electoral contest Gender discrimination: women's right to vote Conclusion The contemporary electoral process Apportionment – drawing constituency boundaries The contents and conduct of election campaigns Counting the vote Conclusion parliamentary privilege 264 Article 9 of the Bill of Rights 1689 The admission, retention and expulsion of members Ashby v White revisited Paty's Case John Wilkes Charles Bradlaugh Freedom from imprisonment, arrest and molestation The principle of informed consent? The justiciability of `proceedings in parliament' Actions in defamation What are `proceedings in Parliament'? `Redefining Parliament' – Pepper v Hart `Contempt' of the House The 1967 report of the Privileges Committee The regulation of MPs' ethical standards The Register of Members' Interests `Cash for questions' and the report of the Nolan Commission The Defamation Act 1996 s 13 and the Hamilton libel actions Conclusion constitutional conventions 303 The Diceyan perspective – laws and conventions distinguished The functions and sources of conventions Collective ministerial responsibility Confidence Unanimity Confidentiality The Monarch The Australian crisis of 1975 Collective ministerial responsibility revisited: from Cabinet to Prime Ministerial government . . .? . . . and back again? Individual ministerial responsibility Issues of competence Errors of judgment Issues of morality Reforming the executive: 1 – the Parliamentary Commissioner for Administration Reforming the executive: 2 – `Next Steps' and privatisation Can conventions become laws?: patriating the Canadian Constitution Patriating the Canadian Constitution From ministerial responsibility to ministerial accountability? The Matrix-Churchill controversy Conclusion – the conventional basis of parliamentary sovereignty? local government – i: conventional pluralism? 349 Localism, tradition and the `modernisation' of local government The Municipal Corporations Act 1835 Local government's constitutional status in the early twentieth century – law and convention The physical boundaries of local authorities Taxation and representation: the fiscal autonomy of local government The role of the judiciary Council housing Education The emergence of comprehensive education Conclusion local government – 2: legal authoritarianism? 375 `Authoritarian populism' – the ideological agenda of the Thatcher governments Financial `reform' 1: Grant penalties and ratecapping Ratecapping Collective politics and individual rights: the judicial role `Fares Fair': Bromley London Borough Council v Greater London Council Wheeler v Leicester City Council R v Lewisham London Borough Council, ex p Shell UK Ltd Section 17 of the Local Government Act 1988 Institutional and ideological reform The abolition of the GLC and the metropolitan counties Privatising local government The Widdicombe Report Housing – individuated and collective privatisation The management of state schools Financial `reform' 2: The Community Charge A step too far? The demise of the poll tax Conclusion The Blair government's reforms The Local Government Acts 1999 and 2000 The governance of London Conclusion – from ambivalence to intolerance? the european economic community 1957–1986 409 The Treaty of Rome 1: Founding principles The types of EEC law and law-making processes The status of EC law within the legal systems of the Member States Questions of accessibility 1: the `direct effect' of Treaty articles Questions of hierarchy 1: the `precedence' or `supremacy' of Treaty articles over domestic legislation Laws, conventions and `ultimate political facts': the `empty chair crisis' and the Luxembourg Accords Questions of accessibility and hierarchy 2: The direct effect and precedence of decisions, regulations and directives Member State judicial reaction to the direct effect and precedence of EEC law Conclusion United Kingdom accession EEC membership and parliamentary sovereignty: the legislators' views – and their votes The European Communities Act 1972 – the passage The European Communities Act 1972 – the terms Parliamentary sovereignty: a non-justiciable concept? The 1975 referendum The Treaty of Rome 2: precedence and direct effect revisited Confirming the direct effect of directives The horizontal direct effect of Treaty articles – Walrave v Koch The justiciability test and the horizontal direct effect principle reaffirmed and expanded – Defrenne v SABENA Immediate precedence: Simmenthal Effet utile before the Conseil D'Etat: the Cohn-Bendit controversy EEC Law, parliamentary sovereignty and the UK courts: phase one The end of the doctrine of implied repeal? Macarthys v Smith A matter of interpretation? Garland v British Rail Engineering Ltd Direct effect – the saga continues The horizontal and vertical direct effect of directives? Marshall v Southampton and South West Hampshire Area Health Authority Making sense of Marshall? The emergence of `indirect effect' An analytical overview: `normative' and `decisional' supra-nationalism The reduction of the `democratic deficit' and the emergence of human rights as general principles of EEC law Conclusion the european community after the single european act 466 The Single European Act the terms Reducing the democratic deficit – Treaty amendment Domestic disquiet: Margaret Thatcher's Bruges speech Normative supra-nationalism – the ECJ continues The `indirect effect' of directives – continued Reducing the democratic deficit: judicial initiatives EC Law, parliamentary sovereignty and the UK courts: phase two Duke v GEC Reliance Ltd Pickstone v Freemans Litster v Forth Dry Dock and Engineering Co Ltd Pickstone and Litster – usurping the legislative function? The end of parliamentary sovereignty: Or its reappearance? The demise of the legal doctrine? Factortame The reappearance of the political doctrine? Monetary union, collective ministerial responsibility and the fall of Margaret Thatcher The Francovich remedy Francovich Maastricht and Amsterdam The terms of the Maastricht Treaty The ratification and incorporation of the Maastricht Treaty The Treaty of Amsterdam Conclusion substantive grounds of judicial review: illegality, irrationality and proportionality 503 Illegality Excess of powers Unlawful delegation of powers Fettering of discretion Estoppel Irrationality Proportionality – a new ground of review? Conclusion procedural grounds of judicial review 535 Audi alterem partem – the right to a fair hearing The initial rise, dilution and fall of the audi alterem partem principle The re-emergence of the principle? Ridge v Baldwin The emergence of the procedural fairness doctrine and the appearance of the legitimate expectation Legitimate expectation – an entitlement to a procedural benefit or substantive benefit? The content of procedural fairness – legal representation and an obligation to give reasons for decisions Conclusion The rule against bias Direct financial interests Indirect financial interests – a mere suspicion or a real likelihood of bias? Clarifying the law? The Gough formulae Ideological bias in `judicial' decisions Further clarifying the law? The Porter v Magill formula Bias in non-judicial proceedings Conclusion the application for judicial review 574 The turning point? Barnard v National Dock Labour Board The Order 53 reforms The initial Order 53 case law O'Reilly v Mackman Exceptions to the general principle? The post-O'Reilly case law The flip side of the O'Reilly coin A `nature' not `source' of power test – the Datafin, Aga Khan and Wachmann decisions Retreating from O'Reilly? The Roy case Public law principle as a defence in criminal proceedings Conclusion locus standi 601 The `old' case law Declaration and injunction – a restrictive test? Certiorari and prohibition – an expansive test? Mandamus – broad or narrow test? Section 31(3) of the Supreme Court Act 1981 and the Inland Revenue Commissioners case Standing in the private law stream Post-IRC developments `Representative standing' Conclusion human rights and civil liberties 1: traditional perspectives 625 Public protest and public order The classic dilemma – Beatty v Gillbanks The Public Order Act 1936 The Public Order Act 1986 Privacy Speech and communication Sado-masochistic sexual behaviour Freedom of speech Official secrecy The Official Secrets Act 1989 Blasphemy Contempt of court Political libels Conclusion human rights and civil liberties ii: emergent principles 658 The European Convention on Human Rights – introductory principles Institutional and jurisdictional issues The jurisprudential methodology of the Convention The initial status of the ECHR in domestic law Political responses – why did Parliament not incorporate the ECHR? Legal responses – the ECHR as a source of principle at common law The impact of the ECHR on domestic law 1: privacy Speech and communication Sado-masochistic sexual behaviour The impact of the ECHR on domestic law 2: freedom of expression Official secrecy Political libels Contempt of court Blasphemy Conclusion human rights and civil liberties iii: new substantive grounds of review 690 Judicial incorporation of the Convention The Convention in domestic law The (re-)emergence and consolidation of fundamental human rights as an indigenous principle of common law Derbyshire County Council v Times Newspapers Ltd in the House of Lords R v Secretary of State for the Home Department, ex p Leech R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants The `judicial supremacism' controversy Judgments of the ECJ and the ECtHR Judgments in domestic courts on immigration policies A judicial response Lord Mustill's analysis Conclusion human rights and civil liberties iv: the human rights act 1998 712 The terms of the Act An incorporation of fundamental rights? Section 3 – new rules of statutory interpretation? Section 4 – the `Declaration of Incompatibility Section 6 – the reach of the Act: vertical (and horizontal?) direct effect A special status for churches and the press? Questions of procedure On the separation of powers Political entrenchment? A new `rights' culture within government and Parliament Conclusion The initial impact of the Human Rights Act The approach to statutory interpretation mandated by s 3 and the use of declarations of incompatibility The notion of `deference' to legislative judgment The horizontality of the Act Proportionality as a ground of review of executive action Conclusion scots and welsh devolution 764 The Scotland Act 1978 and the Wales Act 1978 The Scotland Act 1998 The terms of the Act The first Scottish Parliament and government Conclusion The Government of Wales Act 1998 Conclusion conclusion – entrenchment of fundamental law revisited 785 Issues of legality and legitimacy Questions of legitimacy Conclusion Bibliography 797 Index 000
Library of Congress Subject Headings for this publication:
Constitutional law -- Great Britain.