Dr John McGarry

Constitutional values are an element of both codified and uncodified constitutions. Yet, in both types of constitution, there may be disagreement about what values are encompassed in the constitution and, indeed, what we mean by constitutional values and how these may be distinguished from constitutional principles. Nevertheless, constitutional values, principles and other norms provide the background against which constitutions are interpreted and will help determine which rights are protected. These norms may also constrain the power of those in power though recent events in the US, the UK and elsewhere have brought into question how effective they can be in doing this. Moreover, in both codified and uncodified constitutions, constitutional actors may manipulate constitutional values in order to achieve significant constitutional change, particularly in an unwritten, largely political constitution such as that of the UK’s.

This chapter examines Laws LJ’s claim that constitutional statutes and the principle of legality give the UK ‘most of the benefits of a written constitution’. The chapter argues that constitutional statutes and the principle of legality are aspects of the same phenomenon: that the courts will protect constitutional fundamentals whatever their source. It then argues that this protection operates via interpretation – that legislation which may infringe a constitutional fundamental will be narrowly construed to protect the fundamental. The degree of protection afforded depends primarily on three factors: the importance of the fundamental; the potential degree of infringement by the legislation; and the explicitness of the statutory language. The final part of the chapter contends that Laws LJ’s point is that constitutional statutes and the principle of legality protect and entrench rights and other constitutional fundamentals and it is in this way that he believes they provide most of the benefits of written constitutions. Yet, the chapter argues, written constitutions offer benefits which Laws does not appear to consider. Moreover, the fact that there is no formal and certain way to displace such fundamentals in the UK may be compared negatively to the situation in countries with written constitutions.

The lack of a codified constitution in the UK has traditionally meant that unwritten norms of the constitution are not legally distinguished from non-constitutional norms and are given no particular protection. As Dicey writes, there is an ‘absence of any legal distinction between constitutional and other laws’ (Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 39). This traditional view has been challenged in recent years by judicial claims that there is a principle of legality which protects common law constitutional norms so that they may only be abrogated by express statutory language (Miller [2016] EWHC 2768 [83]). The traditional view has also been challenged by Sir John Laws’ claim in Thoburn v Sunderland [2002] EWCA 195 that, while non-constitutional statutes may be repealed by implication, constitutional statutes may not. Significantly, Sir John stated (ibid [62]) that the protection of constitutional statutes follows – ie: is derived from – the principle of legality. This paper first considers whether common law constitutional norms really are given special protection or whether the principle of legality is simply an aspect of the normal presumption of statutory interpretation that plain words are needed to alter the common law (Deeble v Robinson [1954] QB 77 (CA) 81). If common law constitutional norms are not afforded special protection – ie: if they are not protected to any greater extent that non-constitutional norms of the common law – and given Sir John’s claim that the protection of constitutional statutes follows the principle of legality, the question arises whether it is legitimate to give particular protection to constitutional statutes. Second, the paper examines the legitimacy of protecting constitutional norms in the absence of a foundational constitutional document – such as a written constitution – or an articulated, agreed meta-principle justifying an enhanced protection offered to judicially identified constitutional norms.

The claim that constitutional statutes are protected from the normal operation of implied repeal was first made by Laws LJ in Thoburn [2003] QB 151. Significantly, Laws suggests that only the courts may identify a statute as constitutional and so protected from implied repeal: ‘These instances [of statute protected from implied repeal] are given, and can only be given, by our own courts …’ (para 60). In this paper, I challenge this suggestion. I note that Laws’ view is consistent with an aspect of a traditional view of parliamentary sovereignty: that Parliament cannot specify the manner in which particular statutes may be altered or repealed. However, I argue that, if the courts may determine that a statute is constitutional and so protected from implied repeal, then a basic, fundamental account of parliamentary sovereignty should mean that Parliament is also able to do so. I further argue that, if this is correct, Parliament may also be able to conclusively identify any statute – not only those identified as being constitutional – as protected from implied repeal. These arguments would mean that Parliament’s power would be expansive – able to confer immunity from implied repeal to both constitutional and non-constitutional statutes. In contrast, I consider whether the courts’ powers are more limited: that they may simply identify statutes as being constitutional and thus protected from implied repeal. Finally, I consider what these arguments mean for the validity of the idea that there is a class of statute protected from implied repeal.

The Attorney General is a politician – a Government Minister who is also a member of the House of Commons or the House of Lords. The Attorney General currently has the virtually exclusive power under the Contempt of Court Act 1981 to initiate proceedings for contempt by publication. The Law Commission of England and Wales is currently undertaking a consultation with a view to reforming the law of contempt. The Commission suggests that the Attorney General’s role should be amended so that they no longer have the power to determine whether to bring contempt proceedings where the defendant is a current or former member of either House of Parliament. Significantly, though, the Commission proposes that the Attorney General’s role should remain unchanged in all other cases: where the defendant is not a current or former parliamentarian. This paper will challenge the Law Commission’s proposal. It will evaluate the rationales provided by the Commission for the Attorney General’s role in contempt by publication cases remaining largely unchanged. It will argue that these rationales are faulty or outweighed by other concerns. In conclusion, it will contend that the Attorney General’s role in initiating contempt proceedings should be wholly reformed.

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen.

Since 2005, police in the United Kingdom have had the power to seize vehicles where they reasonably believe they are being driven without motor insurance or driving licence. Forces across the UK have made extensive use of this provision. In this article, I examine the way in which Merseyside Police have operated this power of seizure. In particular, I consider the force’s practice of attaching to seized vehicles notices stating that they have been driven without insurance. I argue that, where such notices are attached to the vehicles of drivers who are in fact insured, they may amount to an actionable libel against which the police would have no effective legal defence. I also suggest that the use of such notices may be part of a ‘name and shame’ policy and, if so, that this is also likely to make their use unlawful.

In this paper, I use Dworkin's distinction between rules and principles to analyse the doctrine of parliamentary sovereignty. I argue that, inherent in many conceptions of the doctrine, is an assumption that it operates in the conclusive manner of a Dworkinian rule. I then submit that the doctrine actually functions in the flexible way characteristic of a Dworkinian principle. In support of this contention, I argue that Acts of Parliament may be balanced against competing principles or statutes; that they possess the dimension of weight or importance; and that the degree to which they will be adhered in any particular case will be contingent upon the importance attributed to any competing principle or statute. I finish the paper with an evaluation of my arguments and an attempt to anticipate potential counter-arguments.

It is an aspect of the traditional view of Parliamentary sovereignty that the courts will not rule as invalid an Act of Parliament, or any part of an Act, which has been passed in the correct fashion. This view has been questioned by some, including some senior judges. They argue that certain limits on the legislative competence of Parliament are necessary to protect those fundamental values that are essential in a democracy. Many who argue for limits to the legislative competence of Parliament also suggest that the relationship between the different arms of the government is one based on mutual respect, restraint and co-operation. If Parliament legislates in such a way as to breach this mutuality, and in a way that will cause conflict between Parliament and the courts, then, it is suggested, the courts may reply in kind by holding that legislation, or part of it, invalid. It is argued here that in the recent quarrel between the Government and the courts over the ouster clause contained in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003, the Government was encouraged to undertake to amend the legislation as a result, at least in part, of intimations by senior judges that the clause could be overruled by the courts. This demonstrates, it is argued, that both sides believed this threat to have some force.

The Attorney General for England and Wales is the Government’s Senior Law Officer who, inter alia, initiates certain kinds of legal proceedings. She is also a politician: a member of the House of Commons or the House of Lords and appointed to Government by the Prime Minister. This article considers the Attorney General’s role in initiating contempt proceedings against fellow politicians. I detail a number of cases where politicians have been involved in potential contempts by publication. I argue that, in such cases, the Attorney General’s position may amount to an actual or perceived conflict of interest and may breach the justice should be seen to be done principle.

It would seem axiomatic that the law should be coherent in the sense that it should be consistent and correspond to an underlying justificatory rationale. Indeed, coherence would appear to be a good, in and of itself, and give rise to other benefits which are desirable in a legal system. In this article, I explore the value and achievability of coherence. I argue that it is largely inevitable that common law legal systems are not coherent, but that each legal system will comprise areas of coherence. I examine whether it is possible to improve coherence through legislation or adjudication but conclude that any coherence attained through the former may be temporary and achieving coherence through the latter is difficult both in principle and in practice. In looking at the value of coherence, I contend that while coherence may have various intrinsic and instrumental benefits, its value should not be overstated; many of the benefits which coherence is said to provide are present in legal systems where it is lacking; other benefits depend on the awareness of a country’s citizens and I suggest that, outside of extremes, citizens are probably unaware of the degree to which their legal system is coherent. Moreover, full coherence may lead to characteristics which are undesirable in a legal system.

The Road Traffic Act 1988 gives police in the United Kingdom the power to seize motor vehicles which they have reasonable grounds for believing are being driven without a valid driver’s licence or motor insurance. Drivers may then have to pay a fee to have their vehicles returned. When exercising this power of seizure, the police may rely on information contained on the Police National Computer (PNC) which is linked to the National Insurance Database (NID). Whilst these databases are undoubtedly invaluable in this endeavour, they are not always accurate, and incidents have occurred whereby motorists who are in fact driving with valid insurance have had their vehicles seized and retained. Focusing on the case of Lisa, whose vehicle was wrongly impounded by Merseyside Police in 2007, and other cases, we explore the legitimacy and legality of such activity. We question both the discretionary power of the police in taking such action, and the validity of their (over) reliance on technology. We posit that the taking of money in cases such as Lisa’s is evidence of the turn within public policing towards marketisation, and consider the capacity for harm to innocent individuals and the implications for justice and fairness. Ultimately, we contend that police accountability is compromised and that a new approach is required. We close the piece with some recommendations for improved police practice.

Abstract

Sir John Laws, the originator of the principle of constitutional statutes, suggests that the protection accorded to them has its roots in the protection from implied repeal given to the European Communities Act 1972 and to constitutional fundamentals. We argue that this suggestion is more convincing with regard to the latter than it is with the former. Further, we contend that founding constitutional statutes on the protection afforded to constitutional fundamentals rather than the 1972 Act may provide a stronger basis for the principle of such statutes if the United Kingdom leaves the European Union. We then provide evidence that the idea of constitutional statutes has been accepted across the three arms of state and argue that, as a consequence, the rule of recognition may be taken to have changed to encompass the amendment to the implied repeal rule that such statutes represent.

The standards of good administration -- Conclusion -- Bibliography -- Index

Course Notes is designed to help you succeed in your law examinations and assessments.

In YL v Birmingham City Council [2007] UKHL 27, the House of Lords decided that a private body providing publicly funded residential care is not engaged in “functions of a public nature” under the Human Rights Act 1998 (HRA), s 6(3)(b). The significance of this issue is that it determines whether those providing such care must conform with the Convention rights under the Act. It is a matter that has been the subject of some controversy in recent years. In this case note, I will describe the facts of YL. I will then give details of the previous case law and commentary this point. This will be followed by an analysis of their Lordship’s opinions in the present case. Finally, I will briefly discuss the possibility of amending the HRA.

Engaging, accessible and very readable, this is an ideal guide for anyone starting out on an LLB or for current law students who are looking to improve their grades.

In this chapter, I examine Kelsen’s contention that the natural law doctrine necessarily depends on the existence of God or other supreme creator. I argue that this contention is based on a number of interrelated claims: that the natural law doctrine attempts to provide a definitive standard of justice; that such a definitive account may only be posited by a superhuman creator; that natural law seeks to derive principles of justice from the nature of reality; and that natural law norms may only be derived from a general norm posited by God, moreover, if natural lawyers deny the claim that the principles of natural law may only be derived from God, they must necessarily be attempting to derive an ought from an is. Throughout the chapter, I challenge Kelsen’s claims by considering natural law theories which do not conform to them. I consequently argue that Kelsen’s conception of natural law is a caricature which does not correspond to, or accurately reflect, the rich and varied tradition of natural law thought.

Focusing upon the elaboration of the concept of the juridico-political in the work of Hans Kelsen and Max Weber, this book provides an important re-assessment of the usual distinction between legal positivism and the sociology of law.

Addressing the foundation of the concept of the juridico-political in the work of Hans Kelsen and Max Weber, this book provides an important re-assesment of the usual distinction between legal positivism and the sociology of law.

This edited collection commences with a comprehensive introduction which establishes the character of Kelsen’s critical engagement as a general critique of natural law combined with a more specific critique of representative thinkers of ...

Two competing theories have emerged as providing the constitutional basis for judicial review in the English courts: the ultra vires theory and the common law theory. Both attempt to rationalise the operation of judicial review in a way which is consistent with the doctrine of parliamentary sovereignty. They differ in their conceptions of what the doctrine requires. It is inherent in the ultra vires theory that sovereignty requires adherence to Parliament's assumed intent whereas under the common law theory it simply requires adherence to Parliament's legislation. The supporters of the former theory submit that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power; indeed, that this is the only plausible assumption to make. I examine these claims. I argue that we cannot accurately ascribe any intention to Parliament and, consequently, we cannot claim that a particular assumption about Parliament's intent is the only one we can plausibly make. I also challenge the argument that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power. I contend that this assumption is only necessary if sovereignty does indeed require adherence to Parliament's presumed intent but that this is not how we usually think of the doctrine; rather, parliamentary sovereignty is traditionally taken to prohibit the courts from acting contrary to Parliament's legislation, not its intention. Finally, I argue that reliance on legislative intent brings possible disadvantages.

The new World Anti-Doping Agency code came into effect on 1st January 2009. It introduced a new international standard for testing which requires athletes in the Registered Testing Pool of their country – usually, the top athletes in an Olympic sport or the leading players in a team sport – to give three-months’ advanced notice of their ‘whereabouts’ for one hour per day, 365 days a year. The rationale put forward for the rule is that the availability of the athletes for out-of-competition testing is an essential element in the fight against doping. The article assesses whether a challenge to the rule could succeed under Article 8 of the European Convention on Human Rights. It explores the possibility of a UK athlete enforcing this right in the domestic courts against UK Athletics, and argues that, despite a tendency for the courts to give a narrow interpretation to the term ‘public authority’ under section 6(3)(b) of the Human Rights Act 1998, the enforcement of the whereabouts requirement could amount to a function of a public nature. In terms of the substantive Article 8 right, the article asks whether providing whereabouts information infringes an athlete’s right to privacy and, if it does, whether the infringement of this right can be justified. It argues that, despite pursuing a legitimate objective of protecting the rights of ‘clean athlete’, it may be a disproportionate response to the problem.

This book discusses the way in which the constitutions are shaped by, and shape, the values and identities inherent in them and how those values and identities may be realised as fundamental rights and, consequently, protected.

This chapter explores the distinction between constitutional values and principles by deploying axiological, legal, moral, ethical, and semantic arguments. It compares constitutional law perspectives and examples from Europe and from around the world. The chapter examines the essence of values and principles in modern constitutional law discourses and their significance in constitutional legal practice. While lawyers may use the two terms interchangeably, it is argued that they are different concepts and should not necessarily be used synonymously. The chapter proposes that constitutional values, in all their abstraction, may be further recognised and crystallised through constitutional principles and constitutional rights in a given constitutional order. Conversely, principles tend to operate beneath values but are actually supportive of values. The chapter argues that from the analytical and the practical point of view, a more hierarchical and, indeed, a more rational ordering of concepts, ought to be adopted in the modern subject of constitutional law, as this would benefit both the subject and practitioners. The chapter thus contends that constitutional values, where they are recognised in a constitutional law order, ought to represent and act as the highest axioms therein, followed by principles and, interestingly, by rights, which tend to be less abstract.