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Constitutional and Administrative Lawcards Glossary

Click on the glossary term to see the definition

Chapter 1

Authoritative textbooks

this is one of the sources of the constitution. They are a non-legal source. An example would be An Introduction to the Study of the Law of the Constitution by AV Dicey (1885

Case law

this is one of the sources of the constitution. Cases are heard by the judiciary which then produces precedent which then provides us with the definition of the relationship between the institutions of state and between the state and the individual.

Constitution

this is a single document or series of documents or written and unwritten rules which contain either the basic rules of state or determine the creation and operation of governmental institutions.

Convention

this is an unwritten obligation which is central to the effective operation of the constitution. The most important convention in the UK is Ministerial Responsibility which plays an important role in providing guidance as to how the executive personnel should work.

Decision

is a source of EC law. It is a decision of the European Court of Justice. It shall be binding in its entirety upon those to whom it is addressed.

Legislation

this is one of the sources of the constitution. It is an Act of Parliament and examples relevant to Constitutional law would include the Human Rights Act 1998.

Chapter 2

Express and Implied Repeal

this is one of the features of the doctrine of Parliamentary Sovereignty. So that Parliament can retain its continuing sovereignty Parliament cannot bind future Parliaments. To avoid questions of supremacy if one Act of Parliament contradicts an earlier Act of Parliament then it will be assumed by the courts that the latter Act apples. This is known as implied repeal. If an Act of Parliament explicitly states that an earlier Act of Parliament has been repealed then this is an example of Express repeal.

Justiciability

this is a principle most commonly identified with the decision in Council of Civil Service Unions v Minister of State for the Civil Service (GCHQ case) (1985) where the exercising of prerogative powers was considered. In this case the House of Lords decided that the exercising of some prerogative powers could be reviewed by the courts. These powers would be justiciable, or subject to adjudication. Some of the prerogative powers (relating to national security) would not be capable of adjudication and these are termed non-justiciable.

Parliamentary Sovereignty

this is possibly the most important doctrine of Constitutional law in the UK. It confirms that the source of ultimate authority in the UK is Parliament rather than, as in the US, a constitution. At its core the doctrine states that Parliament can legislate on any topic, it cannot bind future Parliaments or be bound by its predecessors and no one can challenge the validity of an Act of Parliament. It is seen as the cornerstone of the UK constitution and it is the most democratic of doctrines because those who make most of the important decisions (House of Commons) are made by those who have been elected by the people.

Royal Prerogative

this is an ancient source of the UK Constitution. There exist powers which the executive can exercise without the passage of legislation. Such powers are common to all constitutions but are termed part of the Royal Prerogative because the UK constitution is monarchical in character. Historically these powers were actually exercised by the Monarch in accordance with their pre-eminence and dignity. In the UK today these powers are often exercised in the name of the Monarch by members of the executive. These powers include a declaration of war and the granting of honours.

Rule of Law

like Parliamentary Sovereignty and the Royal Prerogative this is a fundamental principle of the UK Constitution. It is an aspiration of all constitutions where its essence is that no man is above the law and all individuals should be equal to others and not subject to arbitrary rule. In the UK Constitution the rule of law is most commonly associated with AV Dicey in his An Introduction to the Study of the Law of the Constitution (1885).

Separation of Powers

this is one of the fundamental principles of all constitutions. It is the idea that there should be a clear demarcation in function between each of the three organs of state (executive, legislature and judiciary) and the powers of each should be held in check by the others.

In the UK the separation is often described as a fusion because of the incidence of overlap between these organs. These overlaps are regularly controlled by constitutional conventions.

Attribution of Powers

this is one of the legal doctrines of EC law which states that the Community is only entitled to act when it is given the express power to do so.

Directive

this is a secondary source of EC law. It is a form of legislation. It shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. It is the most common form of legislation.

Proportionality

this is one of the legal doctrines of EC law which states that the measure of Community action must be in proportion to the objective being pursued.

Regulation

this is a secondary source of EC law. It is a form of legislation. It shall have general application and shall be binding in its entirety and directly applicable in all Member States.

Subsidiarity

this is one of the legal doctrines of EC law which states that the Community not only has to show that it has the power to act but must justify why it and not the Member State should act.

Supremacy (EC)

this is a doctrine which has been developed by the European Court of Justice. It emerges in the case of Costa v Enel (1964) and the ECJ takes the view that Member States have limited their sovereignty, in areas of EC law, as a result of their entering into the EC Treaty, as amended.

Treaties (EC)

these are the primary and most important sources of EC law. The treaties, as amended, outline the framework under which the Community and Union operate. For example Article 234 EC Treaty provides for the ECJ as final arbiter on Community law.

Chapter Three

Cabinet

this is the committee at the heart of the executive. It is the supreme decision making body in government. Members of the Cabinet are appointed by the monarch on the advice of the Prime Minister.

Collective Ministerial Responsibility

this is one of the central conventions which ensure executive accountability to Parliament. Its basic tenets are that government must speak with one voice. Cabinet discussions are confidential and the government must collectively resign if it loses a confidence vote in the House of Commons.

Confidence rule

this is where a government loses a tabled vote of no confidence and the Prime Minister is required to resign and seek the dissolution of Parliament. Today these are rare and the last government to be removed by a vote of no confidence was that of James Callaghan in 1979.

Individual Ministerial Responsibility

this is one of the central conventions which ensure executive accountability to Parliament. Its basic tenets are that a Minister may resign if they are seen to be responsible for a policy failure within their ministry but not for an operational failure within their ministry. They may also resign for personal indiscretions. It would appear that this convention no longer contains an absolute obligation to resign. It will depend on the circumstances of each case.

Prime Minister

this is the most senior member of the Cabinet in the executive branch of government. The Prime Minister is appointed by the monarch according to the constitutional convention that the monarch must appoint the MP who is best able to command a stable majority.

Chapter Four

Devolution

this is the process by which government power has been gradually devolved from Westminster to Scotland, Wales and Northern Ireland since 1998. Parliament at Westminster does still retain its ultimate sovereignty over these devolved governments.

House of Commons

this is the elected, and therefore most powerful, chamber of Parliament in the UK. It is based in Westminster.

House of Lords

this is the unelected, and therefore least powerful, chamber of Parliament in the UK. It is based in Westminster.

Parliament

for the purposes of Constitutional law, Parliament consists of the House of Commons, the House of Lords and the Monarch.

Parliamentary Privilege

in line with the doctrine of Parliamentary Sovereignty both Houses of Parliament (House of Commons and House of Lords) enjoy member privileges in order to discharge their functions. Examples of these privileges include freedom of speech, freedom to regulate their own composition and freedom to regulate their own proceedings.

Select Committee

this is usually also known as a Commons select committee and it is generally responsible for overseeing the work of government agencies or departments. Their composition remains constant during any one Parliament.

Standing Committee

this is a committee which is also known as a public bill committee. They are responsible for scrutinising proposed legislation in order to improve its quality. They only last for the duration of the Bill.

Chapter Five

Declaration of Incompatibility

this is where a higher court signals to the Government that provision of legislation is incompatible with the European Convention on Human Rights. Its authority comes from s4 Human Rights Act 1998.

Derogation

this is enshrined in Article 15 of the European Convention on Human Rights and is therefore giving effect by the Human Rights Act 1998. It permits contracting parties (member states) to derogate from convention rights in times of war or public emergency. It has proved a popular tool for governments in their fight against terrorism. The House of Lords have been careful to ensure it is not used (or abused) lightly. See A v Secretary of State for the Home Department (2005).

Freedom of Association and Assembly: this is the right citizens have to associate and assemble. This right is enshrined in Article 11 of the European Convention on Human Rights and so given effect by the Human Rights Act 1998. The right is qualified and so can be restricted if it is in the public interest to do so. There also exist common law limitations to this right on the basis that someone is committing or threatening to commit a breach of the peace. Legislation (Public Order Act 1986) exists to limit the right to free assembly. Finally the Terrorism Act 2000 limits the freedom to associate by identifying proscribed organisations which citizens are not permitted to associate with.

Freedom of Expression: this is the right citizens have to free speech. This right is enshrined in Article 10 of the European Convention on Human Rights and so given effect by the Human Rights Act 1998. The right is qualified and so can be restricted if it is in the public interest to do so. The grounds for restriction include national security, censorship, contempt of court, defamation, public order and privacy.

National Security

this is one of the reasons why the State justifies interference with an individual's rights and freedoms.

Official Secrecy

this is one of the reasons why the State justified interference with an individual's freedom of expression.

Police Powers

these are the powers that are enjoyed by the police in their official capacity. These powers can involve the curtailing of individual liberties. Most of these powers can now be found in the Police and Criminal Evidence Act 1984.

Chapter Six

Royal Prerogative

this is an ancient source of the UK Constitution. There exist powers which the executive can exercise without the passage of legislation. Such powers are common to all constitutions but are termed part of the Royal Prerogative because the UK constitution is monarchical in character. Historically these powers were actually exercised by the Monarch in accordance with their pre-eminence and dignity. In the UK today these powers are often exercised in the name of the Monarch by members of the executive. These powers include a declaration of war and the granting of honours.

Chapter Seven

Exclusivity principle

this is a principle which was confirmed in the case of O'Reilly v Mackman (1983). It states that a distinction between public and private law must be made in respect of questioning the decisions made by statutory bodies. If an individual tries to use a private action to challenge a decision by a public body then this would amount to an abuse of process. This principle has been criticised on the basis that meritorious cases have been struck out on purely procedure grounds.

Illegality

this is one of the three grounds for judicial review as classified by Lord Diplock in Council of Civil Service Unions v Minister of State for the Civil Service (GCHQ case) (1985). It embraces a number of different reasons upon which a public body will be subject to judicial review. This includes where the public body exceeds their jurisdiction, fails to direct itself correctly in law, fails to fulfil a statutory duty, acts for an improper purpose, fails to take into account all relevant considerations, unlawfully delegates discretionary powers to another, fetters its discretion and excessively interferes with fundamental rights. It is often called the doctrine of ultra vires.

Irrationality

this is one of the three grounds for judicial review as classified by Lord Diplock in Council of Civil Service Unions v Minister of State for the Civil Service (GCHQ case) (1985). A decision of a public authority will be open to challenge on this ground if the court is satisfied that the decision is so unreasonable that no authority could ever come to it or so absurd that no sensible person could ever dream that it law within the powers of the authority. It is often termed the Wednesbury principle after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948). Since the Human Rights Act 1998 came into force it has also embraced the proportionality test. Some commentators believe that over time the concept of irrationality will be eclipsed by the much wider test of proportionality in judicial review proceedings.

Judicial Review

this is the process by which the courts exercise a supervisory role over the acts and omissions of public bodies. The process is not the same as an ordinary appeal. The court is not interested in the merits of the decision. They are concerned with the decision making process.

Legitimate expectation

this is one of the principles embraced in the 'procedural impropriety' ground of judicial review. Here a person may have a legitimate expectation that they will be given a hearing, or consulted before a decision is taken. This is usually because they have relied on a previous course of conduct to that effect.

Natural Justice

this is one of the principles embraced in the 'procedural impropriety' ground of judicial review. It broadly covers three fundamental principles. The first is that no man is to be a judge in his own cause. The second is that no man is to be condemned unheard. The third is that a decision maker has a general duty to act fairly.

Ouster clause

this is a clause in a statute which attempts to 'oust' the jurisdiction of the court. Given that these clauses try to exclude review by the courts they have construed them strictly. See Anisminic Ltd v Foreign Compensation Commission (1969).

Procedural impropriety

this is one of the three grounds for judicial review as classified by Lord Diplock in Council of Civil Service Unions v Minister of State for the Civil Service (GCHQ case) (1985). The key elements of procedural impropriety comprise where there has been a breach of natural justice, procedural unfairness, and failure to comply with statutory procedural obligations and where an applicant's legitimate expectation has been undermined.

Rule against bias

this is one of the principles embraced in the 'procedural impropriety' ground of judicial review. It means that any decision maker must not have or must not be seen to have any pecuniary, family or professional interest in the outcome of any decision.