CONSTITUTIONAL AND ADMINISTRATIVE LAW

CONSTITUTIONAL AND ADMINISTRATIVE LAW
CORE SERIES

WHAT IS CONSTITUTIONAL AND ADMINISTRATIVE LAW?

Although Constitutional and Administrative Law form part of the generic term of Public Law, a distinction between them should be drawn. Constitutional Law relates to the rules enshrined by a constitution. A Constitution is a set of fundamental rules regulating the powers of the state and determining the relations between its institutions and individuals.

Administrative Law is generally concerned with the law relating to the administration/government. The government and its administration are invested with extensive prerogatives to provide services such as education and to adopt regulations to implement its political program. Administrative law, therefore, ensures that the administration is strictly acting within the limits of its mandate.

STUDYING CONSTITUTIONAL AND ADMINISTRATIVE LAW

Constitutional and Administrative Law is one of the seven core subjects that the Law Society and the Bar Council deem essential in a qualifying law degree. Therefore, it is vital that a student successfully pass this subject to become a lawyer. Additionally, having knowledge and understanding of its principles is needed in order to study other law subjects such as Immigration, Judicial Review, or even go on and work as an elected Minister of Parliament. Our Constitutional and Administrative Law tutors can help:

Provide an introduction to anyone studying or interested in studying Law to the key principles and concepts that exist in Constitutional and Administrative Law.
To provide a framework to consider the UK Constitutional and its law within the context of examinations.
Provide a detailed learning resource in order for legal written examination skills to be developed.
Facilitate the development of written and critical thinking skills.
Promote the practice of problem-solving skills.
Establishing a platform for students to gain a solid understanding of the basic principles and concepts of Constitutional and Administrative Law can then be expanded upon through confident, independent learning.

JUDICIAL CONTROL OF THE PREROGATIVE

General principle: In certain subject matters identified by common law, courts can legally supervise the Crown's use of the royal prerogative in the same way that they review the manner in which statutory powers are exercised.

Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 (the GCHQ case)

Facts: Margaret Thatcher, the Prime Minister, issued an instruction that civil servants who worked at GCHQ would no longer be permitted to be members of trade unions without first consulting civil servants already members of trade unions. Civil servants sought judicial review of the said instruction for breach of the duty to act fairly. The government justified the lack of consultation by claiming national security because GCHQ is the British intelligence headquarters.

Ratio: The House of Lords upheld that the mere fact that the instruction was derived from royal prerogative does not justify immunity for government actions from the court's jurisdiction. As Lord Roskill stated: “I am unable to see (…) that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.

In either case, the act in question is the act of the executive”. However, The House of Lords held that it was for the executive and not for the judiciary to decide whether or not to consult the civil servants because of national security.

Application: In this case, the House of Lords expressly stated that the manner in which common law powers, as any other statutory powers, are exercised by the executive, were subject to the supervision of the courts. In other words, by adopting this decision, the House of Lords removed any doubts about the fact that prerogative powers were covered by judicial review, resulting in a subsequent practice of control of the Crown’s use of the prerogative by the courts.