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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382

In 1970 the proposed plaintiffs, parents of H, hanged for murder in April 1962, issued a writ claiming damages for negligence against the 1962 Home Secretary in failing to consider properly new material presented to him after the conviction and the dismissal of an appeal but before sentence had been carried out. The statement of claim stated that the Home Secretary had a duty to investigate the evidence not before the jury which was in his possession prior to his decision not to grant a stay of execution and not to advise Her Majesty to reprieve the convicted man....

LORD DENNING MR said that: H's defence at the trial was an alibi at Liverpool, later changed to Rhyl. After his conviction his solicitors obtained statements from witnesses at Rhyl which were sent to the Home Secretary after H's appeal had been dismissed but before the sentence had been carried out. His parents now sought to bring an action for negligence against the Home Secretary for not looking into the matter properly and claiming that they had his right of action to damages for loss of expectation of life. Even if there were fault or negligence on the part of the Home Secretary, did the law permit an action such as that proposed? No such case appeared in the books and the only colour it could be given was the recent development of the law of negligence, from Donoghue v Slevenson [1932] AC 562, to Dorset Yacht Co Ltd v Home 0fflce [1970] AC 1004; and it was urged that there was sufficient in the proposed action to warrant the court considering it. The high prerogative of mercy was exercised by the monarch on the advice of one of her principal secretaries of state who took full responsibility and advised her with the greatest conscience and care. The law would not inquire into the manner in which that prerogative was exercised. The reason was plain - to enable the Home Secretary to exercise his great responsibility without fear of influence from any quarter or of actions brought thereafter complaining that he did not do it aright. It was part of the public policy which protected judges and advocates from actions being brought against them for things done in the course of their office. It was a pity that the allegations had been made; but though the court had for the purpose of the present proceedings to assume that they were true, his lordship was satisfied that it was not a matter giving rise to any cause of action in the courts....

SALMON LJ (concurring) said that: No action for negligence could succeed unless it were shown that the negligence caused damage. The only damage that could be alleged here was that but for the negligence of the then Home Secretary the crown would have exercised its prerogative of mercy differently. So if the action were allowed to continue the courts would have to pronounce on the crown's exercise of its prerogative, something which they would not and could not do....