Public Law: Constitutional Principles & Judicial Review

Introduction to UK Public Law

Public law is a foundational subject for any UK law student. It governs the relationship between the state and the individual, and the relationships between the different organs of the state. Unlike many countries with a single, codified constitution, the UK's constitution is famously 'uncodified', drawn from a variety of sources including statutes, common law, constitutional conventions, and academic works. This guide will explore the core principles of the UK constitution and the vital mechanism of judicial review.

For LLB, GDL, and SQE students, a firm grasp of public law is not just an academic requirement but a necessity for understanding the legal landscape in which all other laws operate. We will delve into the key principles, landmark cases, and the practical application of these concepts in problem questions. As you work through this guide, consider using LexIQ's Quiz Generator to create custom quizzes on these topics to test your recall of key cases and principles.

The Core Constitutional Principles

Three principles are often cited as the pillars of the UK's constitution: the rule of law, parliamentary sovereignty, and the separation of powers.

1. The Rule of Law

The rule of law is a concept that asserts the supremacy of law over the arbitrary exercise of power. It's the bedrock of a fair and just society.

A.V. Dicey's Formulation

The traditional starting point for the rule of law in the UK is the work of A.V. Dicey. In his Introduction to the Study of the Law of the Constitution (1885), he articulated three core tenets:

• No one can be punished or made to suffer except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. This aspect emphasizes legality and due process, standing against arbitrary detention or punishment.
• No one is above the law; every person, whatever their rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. This highlights equality before the law, meaning government officials are subject to the same laws as citizens.
• The principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. Dicey argued that our rights are protected by the common law, not by a formal constitutional document.

Key Case: Entick v Carrington [1765] — This seminal case established that the state cannot act in an arbitrary manner and must have legal authority for its actions. King's messengers broke into a writer's home to seize papers based on a general warrant. The court held the warrant was illegal and void, famously stating, "if it is not to be found in our books, it is not law."

Lord Bingham's Modern Interpretation

In the 21st century, Lord Bingham offered a more substantive, modern definition of the rule of law, comprising eight sub-rules:

1. The law must be accessible, intelligible, clear, and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. The law must afford adequate protection of fundamental human rights.
5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
6. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
7. Adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.

Bingham's approach is more 'substantive' than Dicey's 'formal' view because it includes a requirement for the law to protect human rights. This is a crucial point of analysis in many exam questions.

2. Parliamentary Sovereignty

This principle, also heavily associated with Dicey, holds that the UK Parliament is the supreme law-making body. In its traditional form, it means:

• Parliament can make or unmake any law whatsoever.
• No person or body can override or set aside an Act of Parliament.
• No Parliament can bind a future Parliament (it cannot pass a law that cannot be repealed).

However, this absolute view has been challenged in the modern era, most notably by the UK's membership in the European Union (now ended), the Human Rights Act 1998, and the development of common law constitutionalism.

Key Case: R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] — This case was a landmark challenge to parliamentary sovereignty. The House of Lords had to decide whether to suspend an Act of Parliament (the Merchant Shipping Act 1988) that conflicted with EU law. They did, establishing that EU law, at the time, had primacy over UK domestic law. This demonstrated a voluntary limitation of sovereignty by Parliament itself.

Key Case: Jackson v Attorney General [2005] — This case concerned the validity of the Hunting Act 2004, which was passed using the Parliament Acts 1911 and 1949. While the court upheld the Act, some judges (notably Lord Steyn and Lord Hope) made obiter dicta comments suggesting that the rule of law might, in extreme circumstances, limit parliamentary sovereignty. Lord Hope remarked that "the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based."

3. The Separation of Powers

Inspired by Montesquieu, this doctrine advocates for the division of state power into three distinct branches to prevent the concentration of power and provide for checks and balances:

• The Legislature (Parliament): Makes the law.
• The Executive (Government): Implements the law.
• The Judiciary (Courts): Interprets and applies the law.

In the UK, there is a significant overlap, particularly between the executive and the legislature. The Government is formed from the party with a majority in the House of Commons. However, principles like judicial independence and parliamentary scrutiny of the executive are crucial checks. The creation of the Supreme Court in 2009, separating the highest court from the House of Lords, was a major step in strengthening the separation of powers.

The Royal Prerogative

The Royal Prerogative refers to the residue of discretionary powers legally left in the hands of the Crown, which are now, by convention, mostly exercised by government ministers. These powers include making treaties, declaring war, and granting pardons. Historically, these powers were not subject to judicial review.

Key Case: Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] — This case was a watershed moment. Margaret Thatcher's government banned trade union membership at GCHQ, a decision made under the prerogative. The House of Lords held that the source of a power (i.e., the prerogative) does not automatically exclude it from judicial review. The subject matter of the power is what matters. While the decision in this specific case was not overturned due to national security concerns, the principle was established: prerogative powers are reviewable.

Judicial Review: Holding Power to Account

Judicial review is the legal process by which individuals can challenge the lawfulness of decisions made by public bodies. It is not an appeal on the merits of the decision, but a review of the decision-making process. To bring a claim, you need standing (a sufficient interest in the matter), and the decision must be made by a public body exercising a public function.

When you're structuring a problem question answer on judicial review, using a tool like LexIQ's IRAC Method guide can be invaluable. First, identify the grounds of review, then apply the relevant case law. Let's break down the main grounds.

The Grounds of Judicial Review

The classic formulation of the grounds for judicial review was provided by Lord Diplock in the GCHQ case.

1. Illegality

A public body acts illegally if it acts beyond the powers conferred upon it (ultra vires). This can happen in several ways:

• Simple ultra vires: Doing something for which there is no legal authority.
• Errors of law: Misinterpreting the law that grants the power. As established in Anisminic v Foreign Compensation Commission [1969], any error of law by a public body will make its decision a nullity.
• Errors of fact: In limited circumstances, a misunderstanding of a key "jurisdictional" fact can render a decision unlawful.
• Abuse of discretion: This includes using a power for an improper purpose or taking into account irrelevant considerations while ignoring relevant ones.
• Unlawful delegation: A body entrusted with a power cannot delegate it to someone else without statutory authority.

2. Irrationality (Wednesbury Unreasonableness)

This ground concerns the substance of the decision itself. The test comes from Associated Provincial Picture Houses v Wednesbury Corporation [1948]. A decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

This is a very high threshold to meet. The courts are reluctant to intervene on this ground as it comes close to questioning the merits of the decision. It is often a last resort for claimants.

3. Procedural Impropriety

This ground relates to failures in the decision-making process. It has two main branches:

• Failure to follow statutory procedures: If an Act of Parliament sets out a procedure for making a decision (e.g., a duty to consult), that procedure must be followed.
• Breach of the rules of natural justice: These are common law principles of fairness. They include:
  • Audi alteram partem (the right to be heard): A person affected by a decision should be given a fair hearing.
  • Nemo iudex in causa sua (the rule against bias): The decision-maker must be, and appear to be, impartial.

Modern Grounds of Review

Since the GCHQ case, the grounds of review have continued to evolve.

Proportionality

Proportionality is a more intensive standard of review than Wednesbury unreasonableness. It is a key feature of European law and human rights law. It asks whether the decision-maker has struck a fair balance between the objective being pursued and the rights of the individual. The test typically involves asking:

1. Did the measure have a legitimate aim?
2. Was the measure rationally connected to that aim?
3. Was a less intrusive measure available?
4. Has a fair balance been struck between the rights of the individual and the interests of the community?

Proportionality is now the required standard for cases involving the Human Rights Act 1998 and EU law principles. There is ongoing debate about whether it should replace Wednesbury unreasonableness as a general ground of review.

Legitimate Expectation

A legitimate expectation can arise from a promise or a regular practice of a public body. If a public body has led someone to believe they will be treated in a certain way, the courts may require the body to either fulfill that expectation or act fairly before frustrating it.

• Procedural Legitimate Expectation: An expectation of being consulted or heard before a decision is made.
• Substantive Legitimate Expectation: An expectation of receiving a particular benefit or outcome. The courts are more reluctant to enforce these, as it can interfere with policy-making.

The Human Rights Act 1998 (HRA)

The HRA 1998 had a profound impact on UK public law. It incorporated most of the rights from the European Convention on Human Rights (ECHR) into domestic law. This means individuals can now enforce their Convention rights in UK courts.

Key provisions include:

• Section 3: So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. This is a powerful interpretive tool.
• Section 4: If a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of incompatibility. This does not invalidate the Act, but puts political pressure on Parliament to amend it.
• Section 6: It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The HRA has made rights-based arguments central to many judicial review claims and has been the vehicle for the rise of proportionality as a standard of review. Preparing for HRA-based questions? Use LexIQ's Flashcards tool to memorize the key articles of the ECHR.

Devolution

Devolution is the statutory granting of powers from the UK Parliament to assemblies in Scotland, Wales, and Northern Ireland. This has created a quasi-federal structure in the UK. The devolved legislatures have the power to make laws on a range of matters (e.g., health, education), while certain matters (e.g., defence, foreign policy) are reserved to the UK Parliament.

Key Case: R (Miller) v Secretary of State for Exiting the European Union [2017] — While primarily about the prerogative power to trigger Article 50, this case also had significant devolution implications. The Supreme Court confirmed that the consent of devolved legislatures was not legally required to trigger Brexit, as relations with the EU are a matter for the UK Government and Parliament. This reinforced the ultimate sovereignty of the Westminster Parliament.

Exam Technique for Public Law Problem Questions

Public law problem questions often involve a scenario where a public body has made a decision that adversely affects a client. Your task is to advise on the prospects of a successful judicial review.

1. Identify the Preliminaries: Is the decision-maker a public body? Is the decision a matter of public law? Does your client have standing? Is the claim within the time limit (promptly and in any event within 3 months)?
2. Spot the Grounds of Review: Read the facts carefully to identify potential grounds of challenge. Is there an error of law (Illegality)? Is the decision absurd (Irrationality)? Was the process unfair (Procedural Impropriety)? Does it engage human rights (Proportionality/HRA)? Was a promise broken (Legitimate Expectation)?
3. Structure Your Answer: Use each potential ground as a heading. Under each heading, state the law (citing key cases like GCHQ, Wednesbury, etc.), apply it to the facts of the problem, and conclude on the likelihood of success for that ground. LexIQ's Essay Marker can be a great tool to get feedback on the structure and clarity of your practice answers.
4. Consider Remedies: What will a successful judicial review achieve? The main remedies are a quashing order (voiding the decision), a mandatory order (compelling the body to act), or a prohibiting order (stopping a future unlawful act). Damages are rare.
5. Conclude: Summarise your advice. What are the strongest and weakest grounds? What is the overall likelihood of success?

Common Mistake: A common mistake is to argue the merits of the case (i.e., whether the decision was "right" or "wrong"). Remember, judicial review is about the lawfulness of the process, not the correctness of the outcome, unless the outcome is so unreasonable as to be irrational or disproportionate.

Mastering public law requires a deep understanding of these interlocking principles and a lot of case law. Use LexIQ's Study Planner to schedule your revision and ensure you cover all key topics before your exams. Good luck!