Introduction to Constitutional and Administrative Law

Both constitutional and administrative law are central components of the ‘Public Law’ curriculum at Scottish universities. Constitutional law is chiefly concerned with the structure and powers of the state, and the relationship between citizens and the organs of government. Administrative law mainly regulates the exercise of power by those in positions of public authority.

Constitutional Law

History and Constitutional Theory

The constitutional union between England and Scotland can be set against a historical background which dates back to the settlement of 1707 and the establishment of the first United Kingdom Parliament. A unitary system of government prevailed until 1998, at which point devolution statutes were enacted for Scotland, Wales and Northern Ireland.

The essential nature of the UK constitution has not changed dramatically, though; at least in the sense that it has not yet become codified. There is no written constitution to provide for the structure and operation of the main institutions, nor are the most important statutes entrenched in any way.

The principal reason for this flexibility, or vulnerability, is that Britain’s legal framework is dominated by the doctrine of parliamentary sovereignty. The UK Parliament enjoys absolute legislative supremacy, even in Scotland over the devolved Scottish Parliament. The only restrictions on its legislative capacity arise from EC law and the newly-incorporated European Convention on Human Rights (ECHR).

The ECHR has helped to reassert the rule of law in the UK, by subjecting government and public authorities to a system of protections for the individual citizen. Law must act as a constraint on executive power in this way, and must remain superior to all persons in the constitution.

To achieve an effective rule of law, there ought to be a separation of powers between the executive, legislative and judicial functions of government. In the UK, the tradition of drawing Cabinet Ministers from the Parliament means certain persons are involved in overlapping roles, so the separation of powers is imperfect.

Parliament, Government and Elections

The UK Parliament is composed of the House of Lords and the House of Commons, with the monarch as its symbolic figurehead. The unelected Lords, officially the upper house, has been criticised as undemocratic and seems to be on the verge of reform. The Commons, which seats the country’s 659 Members of Parliament, is the dominant chamber and the ultimate source of new legislation.

MPs are voted into the Commons by an electoral system of ‘relative majority’ - in each constituency, the candidate with the most votes wins. The task of forming a government is bestowed upon the party with a majority of seats overall. Once in government, many of the most important processes, including appointment of the Prime Minister, do not follow any written rules, but are instead conducted according to long-standing constitutional conventions.

For Scotland, the process of devolution, culminating in the enactment of the Scotland Act 1998, has had several positive democratic implications. Edinburgh now houses a dedicated legislature, controlled by the leading parties in Scotland, not Westminster, and elected by proportional representation. The system of government under the Act could be said to be semi-federal: the Scottish Parliament has its own Executive and legislative competence in certain areas, but matters like international policy and the constitution are ‘reserved’ to the supreme, sovereign UK Parliament.

Ministerial Responsibility and Parliamentary Scrutiny

Individually, Ministers must be answerable for any mistakes in their departments, and must resign if they knowingly mislead or lie to Parliament. Collectively, the Cabinet ought to appear united and unanimous, defending common executive action and concealing any disagreements.

 

Administrative Law

The Human Rights Act 1998

The Act is certain to create a new dimension to administrative law by giving direct domestic effect to the substantive provisions of the ECHR. Its two principal guarantees are that all legislation be interpreted compatibly (s.3(1)), and that public authorities must act compatibly with Convention rights. The experience in Scotland, where human rights issues could be raised earlier due to devolution, suggests that fundamental changes in the law may be imminent.

The Supervisory Jurisdiction

In the absence of a specialised system of administrative courts, Scotland relies on the supervisory jurisdiction of the Court of Session for judicial control of administrative action. Its scope is very different from that of an appeal court. Judicial review follows an exclusive procedure in regulating decision-making by persons or bodies who exercise public authority.

Locus Standi – Standing to Apply for Judicial Review

In order to claim legitimate locus standi, or standing to apply for judicial review, an applicant is first obliged to exhaust any available statutory remedies and avoid other barriers such as undue delay. Thereafter, title and interest will be granted only to those with a real interest to protect, and not merely a hypothetical enquiry or a wasteful interference. In human rights proceedings, the ECHR ‘victim’ test will be applied.

Grounds for Judicial Review

The numerous and often complex grounds on which judicial review applications may be founded are best classified under three headings:- ultra vires and principles of legality, review of discretionary decisions, and procedural propriety. These categories encompass use of excessive power, various abuses of discretion, and breaches of the requirements of fairness.

Remedies available under Judicial Review

Since the supervisory jurisdiction is quite different from the appellate jurisdiction, the remedies available are also unfamiliar. Of the five main remedies – reduction, declarator, interdict, suspension and damages – none entitles the court to substitute its own decision on the facts for an unlawful original decision.