Public Law

Written in the well-established tradition of the Clarendon Law Series, Public Law offers a stimulating re-interpretation of the central themes and problems of English constitutional law. It offers full consideration of the historical development of public law.

Adam Tomkins is Fellow and Tutor in Law at St Catherine's College, Oxford. He was previously Lecturer (1991-1999) and Senior Lecturer (1999-2000) at the School of Law, King's College, London. A well-respected and highly published author, his works include The Constitution after Scott (OUP, 1998) and Sceptical Essays on Human Rights (OUP, 2001), co-edited with Tom Campbell and Keith Ewing.

Preface

ix

Table of Legislation

xiii

Table of Cases

xvii

1. On Constitutions

1

(32)

English Public Law

1

(2)

What are Constitutions for?

3

(4)

Written and Unwritten Constitutions

7

(7)

The Character of the Constitution

14

(4)

Political and Legal Constitutions

18

(6)

From Politics to Law: Fire Brigades as a Case-study

24

(9)

Part I: Power

2. The Separation of Power

33

(28)

History and Principle

33

(2)

Power and its Separation

35

(4)

The Separation of Power in Historical Perspective

39

(5)

The Contemporary Position

44

(10)

(a) The Sovereignty of Parliament

47

(2)

(b) Ministerial Responsibility to Parliament

49

(2)

(c) The Law and the Crown

51

(3)

A Word on the Courts

54

(7)

3. The Crown

61

(29)

The Monarch

62

(10)

The Institutions of Central Government

72

(6)

The Executive and Public Law

78

(3)

The Nature of the Prerogative

81

(2)

Conclusions: Beyond the Crown?

83

(7)

4. Parliament

90

(41)

The Three Functions of Parliament

90

(7)

Questions of Composition: Commons and Lords

97

(5)

Legislative Supremacy: the 'Sovereignty of Parliament'

102

(23)

(a) The Source of the Doctrine

103

(1)

(b) The Scope of the Doctrine

104

(4)

(c) The Impact of the European Community

108

(13)

(d) The Human Rights Act 1998

121

(2)

(e) 'Constitutional' Statutes?

123

(2)

Parliamentary Privilege

125

(6)

Part II: Accountability

5. Political Accountability

131

(39)

Accountable Government

131

(4)

Collective Responsibility

135

(5)

Individual Responsibility

140

(19)

(a) Responsibility to Whom?

141

(3)

(b) Responsibility for What?

144

(4)

(c) Individual Responsibility and the Major Government

148

(6)

(d) Parliament's Response

154

(5)

The Mechanisms of Political Accountability

159

(9)

Conclusions

168

(2)

6. Legal Accountability

170

(57)

The Development of Modern Judicial Review Law

170

(12)

(a) Procedural Review: Procedural Impropriety

172

(4)

(b) Substantive Review: Illegality and Irrationality

176

(6)

Judicial Review and Rights: Argument and Reform

182

(6)

The Impact of the Human Rights Act 1998

188

(13)

The Reach of Legal Accountability

201

(5)

Conclusions: the Limitations of Legal Accountability

206

(7)

Bibliographical Essay

213

(14)

Index

227

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Summary

Author Biography

Table of Contents

Supplemental Materials