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Public law

Eloise Ellis
Edward Stone
This module guide was prepared for the University of London by:

uu Edward G. Stone, MA (Oxon), Solicitor (non-practising), Editorial Manager, CILEx Law


School.

The 2015, 2016, 2017 and 2018 updates were prepared by:

uu Eloise E.C. Ellis, Lecturer in Law, University of East Anglia.

The 2019 update was prepared by:

uu Hilaire Barnett, BA, LLM.

The authors would like to thank Dr Jo Murkens for his help in the preparation of this
module guide.

This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide. If you have any comments on this module guide,
favourable or unfavourable, please use the form at the back of this guide.

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Published by: University of London


© University of London 2018. Reprinted with minor revisions 2019

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Public law  Contents page i

Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

1 Introducing public law . . . . . . . . . . . . . . . . . . . . . . . . . . 1


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 How public law differs from other law subjects . . . . . . . . . . . . . . . . 3
1.2 Content of individual chapters of the module guide . . . . . . . . . . . . . . 3
1.3 Textbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Journals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Online study resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2 The UK constitution and its core institutions . . . . . . . . . . . . . . . 7


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Key participants in the UK constitution . . . . . . . . . . . . . . . . . . . 11
2.3 The ‘Westminster model’ . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.4 Reforming the Westminster model . . . . . . . . . . . . . . . . . . . . . 14
2.5 Direct democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3 Parliamentary supremacy . . . . . . . . . . . . . . . . . . . . . . . . 17
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 The traditional view . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.2 The enrolled Bill rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.3 Doctrine of implied repeal . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.4 The ‘manner and form’ argument . . . . . . . . . . . . . . . . . . . . . . 21
3.5 Parliament Acts 1911 and 1949 . . . . . . . . . . . . . . . . . . . . . . . . 21
3.6 The Act of Union 1706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Parliamentary supremacy and the European Union . . . . . . . . . . . . . 23
3.8 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.9 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4 The rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.1 Bingham’s eight ‘sub-rules’ . . . . . . . . . . . . . . . . . . . . . . . . . .29
4.2 ‘Content-free’ and ‘content-rich’ interpretations of the rule of law . . . . . . 31
4.3 Dicey’s description of the rule of law . . . . . . . . . . . . . . . . . . . . . 32
4.4 Protection of the rule of law by the courts . . . . . . . . . . . . . . . . . . 32
4.5 Protection of the rule of law by Parliament . . . . . . . . . . . . . . . . . . 34
4.6 Protection of the rule of law by the Lord Chancellor . . . . . . . . . . . . . 34
4.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5 Limited government and the separation of powers . . . . . . . . . . . 37


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.1 Montesquieu and L’esprit des lois . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Functions of the executive, legislature and judiciary in the United Kingdom . 39
5.3 Reasons for the separation of powers . . . . . . . . . . . . . . . . . . . . 41
5.4 Separation of powers between the Crown and Parliament . . . . . . . . . . 42
page ii University of London
5.5 The judicial approach to the separation of powers . . . . . . . . . . . . . . 44
5.6 Interactions between Parliament, the government and the judiciary . . . . 45
5.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

6 Ministerial accountability . . . . . . . . . . . . . . . . . . . . . . . . 51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.1 Legitimacy and accountability . . . . . . . . . . . . . . . . . . . . . . . . 53
6.2 The role of the monarch . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.3 The role of the Prime Minister . . . . . . . . . . . . . . . . . . . . . . . . 55
6.4 The role of ministers and the cabinet . . . . . . . . . . . . . . . . . . . . 58
6.5 Ministerial accountability and the civil service . . . . . . . . . . . . . . . . 64
6.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

7 Crown and prerogative powers . . . . . . . . . . . . . . . . . . . . . 69


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.1 Comparing sources of legal authority for public bodies . . . . . . . . . . . 71
7.2 Categories of prerogative powers . . . . . . . . . . . . . . . . . . . . . . 72
7.3 Definitions of prerogative powers . . . . . . . . . . . . . . . . . . . . . . 76
7.4 Relationship between prerogative and statutory powers . . . . . . . . . . 77
7.5 Judicial review of prerogative powers . . . . . . . . . . . . . . . . . . . . 78
7.6 Reforming ministerial prerogatives . . . . . . . . . . . . . . . . . . . . . 79
7.7 Case study: deployment of British armed forces abroad . . . . . . . . . . . 80
7.8 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

8 UK primary legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.1 The purpose of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.2 Researching the meaning of an Act of Parliament . . . . . . . . . . . . . . 87
8.3 Policy making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8.4 Drafting Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.5 Framework Bills and the interaction with delegated legislation . . . . . . . 90
8.6 Pre-legislative scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
8.7 The legislative process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
8.8 Bills of ‘first class constitutional importance’ . . . . . . . . . . . . . . . . . 91
8.9 Bringing legislation into force . . . . . . . . . . . . . . . . . . . . . . . . 91
8.10 Post-legislative scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
8.11 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

9 UK delegated legislation . . . . . . . . . . . . . . . . . . . . . . . . . 95
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
9.1 Terminology of delegated legislation . . . . . . . . . . . . . . . . . . . . .97
9.2 Uses of delegated legislation . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.3 Drafting secondary legislation . . . . . . . . . . . . . . . . . . . . . . . . 99
9.4 Parliament’s role in delegated legislation . . . . . . . . . . . . . . . . . . 99
9.5 The role of the courts in scrutinising delegated legislation
– judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
9.6 The Legislative and Regulatory Reform Act 2006 . . . . . . . . . . . . . . 101
9.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Public law  Contents page iii

10 Constitutional conventions: case study . . . . . . . . . . . . . . . . 103


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
10.1 The Salisbury-Addison convention . . . . . . . . . . . . . . . . . . . . . 105
10.2 The Parliament Acts 1911 and 1949 . . . . . . . . . . . . . . . . . . . . . 106
10.3 House of Commons and House of Lords in conflict . . . . . . . . . . . . . 107
10.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

11 EU legal and governmental order . . . . . . . . . . . . . . . . . . . . 109


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
11.1 Background to the European Union . . . . . . . . . . . . . . . . . . . . . 111
11.2 The European Council . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.3 The Council of the European Union/Council of Ministers . . . . . . . . . . 112
11.4 The European Commission . . . . . . . . . . . . . . . . . . . . . . . . . 113
11.5 Accountability of the EU institutions . . . . . . . . . . . . . . . . . . . . 114
11.6 Treaty on European Union (TEU) and Treaty on the Functioning of the
European Union (TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.7 UK ‘opt-outs’ from the Treaties . . . . . . . . . . . . . . . . . . . . . . . 116
11.8 The treaty-making process . . . . . . . . . . . . . . . . . . . . . . . . . 117
11.9 European Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
11.10 The ‘ordinary legislative process’ – how the Commission and Parliament
create law jointly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11.11 Types of EU legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11.12 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

12 EU law and UK constitutional law . . . . . . . . . . . . . . . . . . . . 121


‘BREXIT’: Britain leaves the EU . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.1 Key principles guiding national courts in relation to EU law . . . . . . . . . 123
12.2 Contradictions between parliamentary sovereignty and EU law . . . . . . 123
12.3 Responses of UK courts to the conflict between parliamentary supremacy
and the doctrine of direct effect . . . . . . . . . . . . . . . . . . . . . . 124
12.4 European Union law – the ‘pick and mix’ approach . . . . . . . . . . . . . 125
12.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

13 Devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13.1 Political geography of the United Kingdom . . . . . . . . . . . . . . . . . 129
13.2 Comparing federalism to devolution . . . . . . . . . . . . . . . . . . . . 129
13.3 Development of the United Kingdom into a nation state . . . . . . . . . . 129
13.4 The Act of Union with Scotland 1706 . . . . . . . . . . . . . . . . . . . . 129
13.5 The Scottish devolution settlement . . . . . . . . . . . . . . . . . . . . 130
13.6 The Welsh devolution settlement . . . . . . . . . . . . . . . . . . . . . 131
13.7 Devolution in Northern Ireland . . . . . . . . . . . . . . . . . . . . . . . 131
13.8 The roles of the Secretaries of State for Wales, Scotland and
Northern Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
13.9 Intergovernmental relations . . . . . . . . . . . . . . . . . . . . . . . . 133
13.10 The English question – regional government within England? . . . . . . . 133
13.11 Local government functions . . . . . . . . . . . . . . . . . . . . . . . . 134
13.12 Local government – legislative powers . . . . . . . . . . . . . . . . . . . 134
13.13 A Welsh legal system? . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
13.14 Scottish independence . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
13.15 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
page iv University of London

14 Judicial independence and accountability . . . . . . . . . . . . . . . 137


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
14.1 Judiciary – facts and figures . . . . . . . . . . . . . . . . . . . . . . . . . 139
14.2 Judicial independence . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
14.3 Judicial accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
14.4 Judicial impartiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
14.5 Appointment of judges . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
14.6 Judges’ roles in chairing public inquiries . . . . . . . . . . . . . . . . . . 141
14.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

15 Principles of judicial review I: illegality . . . . . . . . . . . . . . . . . 143


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
15.1 Historical background . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
15.2 Constitutional background . . . . . . . . . . . . . . . . . . . . . . . . . 145
15.3 Judicial review in practice . . . . . . . . . . . . . . . . . . . . . . . . . 145
15.4 Amenability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
15.5 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
15.6 Remedies for judicial review . . . . . . . . . . . . . . . . . . . . . . . . 147
15.7 Grounds for judicial review – illegality . . . . . . . . . . . . . . . . . . . 147
15.8 Reform of judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . 149
15.9 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

16 Principles of judicial review II: procedural fairness . . . . . . . . . . . 153


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
16.1 Why is procedural fairness important? . . . . . . . . . . . . . . . . . . . 155
16.2 Legitimate expectations . . . . . . . . . . . . . . . . . . . . . . . . . . 155
16.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

17 Principles of judicial review III: irrationality and proportionality . . . 157


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
17.1 Irrationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
17.2 Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
17.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

18 Human rights protection . . . . . . . . . . . . . . . . . . . . . . . . 161


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
18.1 International Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . 163
18.2 The European Convention on Human Rights . . . . . . . . . . . . . . . . 163
18.3 Enforcement of human rights in the European Court of Human Rights . . . 163
18.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 164
18.5 Case study – prisoners’ voting rights . . . . . . . . . . . . . . . . . . . . 164
18.6 Criticism of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . 165
18.7 A British Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
18.8 Reform of the European Court of Human Rights . . . . . . . . . . . . . . 166
18.9 Charter of the Fundamental Rights of the European Union . . . . . . . . . 167
18.10 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Public law  Contents page v

19 Human Rights Act 1998 jurisprudence . . . . . . . . . . . . . . . . . 169


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
19.1 Duty to take into account decisions of the European Court of
Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
19.2 Can the UK courts extend Convention rights? . . . . . . . . . . . . . . . . 171
19.3 The interpretative obligation . . . . . . . . . . . . . . . . . . . . . . . . 171
19.4 Declarations of incompatibility . . . . . . . . . . . . . . . . . . . . . . . 172
19.5 Enforcement proceedings against ‘public authorities’ . . . . . . . . . . . 173
19.6 Case study – Denbigh High School . . . . . . . . . . . . . . . . . . . . . . 173
19.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

20 Human Rights Act 1998 and terrorism . . . . . . . . . . . . . . . . . 175


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
20.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
20.2 Part 4 of the Anti-terrorism, Crime and Security Act 2001 . . . . . . . . . . 178
20.3 A v Secretary of State for the Home Department [2004] UKHL 56 . . . . . . . 178
20.4 Control orders under the Prevention of Terrorism Act 2005 . . . . . . . . 179
20.5 Terrorism Prevention and Investigation Measures Act 2011
– the TPIMs regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
20.6 Counter-Terrorism and Security Act 2015 . . . . . . . . . . . . . . . . . . 180
20.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 183


Using feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Chapter 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Chapter 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Chapter 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
page vi University of London

Notes
Public law page vii

Module descriptor
GENERAL INFORMATION

Module title
Public law

Module code
LA1020

Module level
4

Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk

Credit value
30

Courses on which this module is offered


CertHE, LLB, EMFSS

Module pre-requisite
None

Notional study time


300 hours

MODULE PURPOSE AND OVERVIEW


Public law is one of the seven foundation modules required for a qualifying law degree
in England and Wales and is a core requirement of the University of London LLB and
CertHE Common Law courses.

This module is concerned with the core features of the UK constitution and examines
the impact of both EU membership and Council of Europe membership. Emphasis is
placed throughout on the changing nature of the UK constitution – in particular the
move from a political to a more legal constitution – as well as the case for further
change.

MODULE AIM
This module introduces students to the role of the main institutional actors (the
legislature, the executive, and the judiciary) within the UK constitution and the
processes of constitutional change. Students will be able to analyse key issues
governing the relation between citizens and the state, including sovereignty and the
division of powers between legislature, executive and administration.

LEARNING OUTCOMES: KNOWLEDGE


Students are expected to have knowledge and understanding of the main concepts and
principles of Public law. In particular they should be able to:

1. Explain the nature and purpose of constitutions including the ways in which
governmental powers are generally allocated among the institutions of the state,
and the way in which courts operate to review administrative action and protect
basic rights;
page viii University of London

2. Describe the main institutions and legal characteristics of the EU and analyse the
implications for the UK constitution during membership of the EU 1973 to 2019;

3. Assess the constitutional implications for the UK of the Human Rights Act 1998 and
the role of the European Court of Human Rights;

4. Understand the social and political context in which Public law is situated;

5. Evaluate suggestions for constitutional reform in the United Kingdom and the
European Union.

LEARNING OUTCOMES: SKILLS


Students completing this module should be able to:

6. Conduct straightforward legal research, retrieving information from a range of data


sources and including interpretation of textual and numerical data;

7. Distinguish relevant facts and issues presented in a range of legal material;

8. Interpret primary and secondary legal sources, including case law and statutes, to
answer questions;

9. Construct a coherent argument in response to oral or written stimuli.

BENCHMARK FOR LEARNING OUTCOMES


Quality Assurance Agency (QAA) benchmark statement for Law (2015).

MODULE SYLLABUS
a. The conceptual framework of public law. Introducing public law. The UK
constitution and its core institutions. Parliamentary supremacy. The rule of law.

b. Executive and legislative functions. Limited government and the separation of


powers. Ministerial accountability. Crown and prerogative powers. UK primary
legislation. UK delegated legislation. Constitutional conventions.

c. Multi-layered governance. EU legal and governmental order. EU law and UK


constitutional law during membership 1973–2019. Devolution.

d. Courts and the constitution. Judicial independence and accountability. Principles of


judicial review I: Illegality. Principles of JR II: procedural fairness. Principles of JR III:
Irrationality and proportionality.

e. Human rights. Human rights protection. HRA jurisprudence. HRA and terrorism.

LEARNING AND TEACHING

Module guide
Module guides are the student’s primary learning resource. The module guide covers
the entire syllabus. It sets out the learning outcomes that must be achieved as well
as providing advice on how to study the module. Each chapter of the guide includes
essential and further reading and a series of activities designed to test knowledge and
develop relevant skills. A summary of the main points arising in each chapter of the
guide is also provided. It is supplemented each year with the pre-exam update, made
available on the VLE.

The Laws Virtual Learning Environment


The Laws VLE provides one centralised location where the following resources are
provided:

uu a module page with news and updates, provided by legal academics associated
with the Laws Programme;

uu a complete version of the module guides;

uu online audio presentations;


Public law page ix

uu pre-exam updates;

uu past examination papers and reports;

uu discussion forums where students can debate and interact with other students;

uu Computer Marked Assessments – multiple choice questions with feedback


are available for some modules allowing students to test their knowledge and
understanding of the key topics.

The Online Library


The Online Library provides access to:

uu the professional legal databases LexisLibrary and Westlaw;

uu cases and up-to-date statutes;

uu key academic law journals;

uu law reports;

uu links to important websites.

Core text
Students should refer to the following core text. Specific reading references are
provided for this text in each chapter of the module guide:

¢¢ Le Sueur, A., M. Sunkin and J.E.K. Murkens Public law: text, cases and materials.
(Oxford: Oxford University Press, 2019) fourth edition [ISBN 9780198820284].

ASSESSMENT
Learning is supported by means of a series of activities in the module guide. Generic
feedback on each of the activities is provided at the end of the guide. The activities are
designed to test knowledge and understanding and also assist students to develop
skills listed in outcomes 6–8. There are additional online activities in the form of
multiple choice questions. The formative activities also prepare students to achieve
the module learning outcomes tested in the summative assessment.

Summative assessment is through a three hour and fifteen minute unseen


examination. Students are required to answer four questions out of eight. Summative
assessment will demonstrate achievement of outcomes 1–5 and 9.

Permitted materials
Students are permitted to bring into the examination room the following specified
document:

¢¢ Core statutes on public law & civil liberties 2019–20 (Palgrave Macmillan).
page x University of London

Notes
1 Introducing public law

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 How public law differs from other law subjects . . . . . . . . . . . . . . 3

1.2 Content of individual chapters of the module guide . . . . . . . . . . . . 3

1.3 Textbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.4 Journals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.5 Online study resources . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.6 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
page 2 University of London

Introduction
Welcome to the Public law module guide. Public law is a fascinating and challenging
subject area which will give you the chance to engage with fundamental issues
affecting how law works in the context of democratic government in the United
Kingdom. In this chapter we will consider how public law differs from other law
subjects as well as looking briefly at the structure and content of the chapters of the
module guide.

Finally, we will briefly review study skills for public law and the structure of the
examination.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Part 1: Constitutional fundamentals (see Section
1.3 ‘Textbooks’, below).
Public law  1  Introducing public law page 3

1.1 How public law differs from other law subjects


In the course of studying law modules students will normally approach their studies
on the basis of dealing with one topic at a time. After achieving some understanding of
a topic, they will move on to the next one, only returning to it at the revision stage.

When studying public law, however, it is very important to develop as soon as possible
a sense of how the different elements fit together. Topics such as the rule of law and
parliamentary supremacy will be relevant in a variety of different contexts as a wide
range of public law topics are studied.

The political dimension of public law will often be a challenge for students.
International students may feel that they lack an understanding of British politics and
political institutions but this can be remedied by making use of newspaper websites
such as the Guardian, The Times and the Daily Telegraph, as well as the BBC website.
Inevitably, students will find that their studies of public law make them more sceptical
of journalists’ interpretations of the legal implications of politicians’ actions.

1.2 Content of individual chapters of the module guide


Each chapter will contain an introduction setting the scene. Brief descriptions of the
law will follow, accompanied by a variety of activities. The activities will usually require
you to follow links to a variety of different websites, including:

uu www.parliament.uk

uu www.legislation.gov.uk

uu www.judiciary.gov.uk

uu www.gov.uk/government/organisations/cabinet-office

In addition, reading case reports and other material on LexisLibrary or Westlaw will be
important.

In response to the material on the internet, a variety of questions will be given. Some
of them will be straightforward factual questions to which there is only one correct
answer. Other questions will ask you to consider your own personal responses to
the material and the wider issues discussed. At the end of the module guide answers
are provided to the activities. In response to some questions, the answer will state
‘Students will form their own views’. The author may also include their own personal
views, but the intention is to challenge you to respond ‘But I think…because…’.

Audio presentations are also referred to within the chapters and can be listened to on
the Virtual Learning Environment (VLE), or the scripts can be read instead.

The weblinks provided are subject to change. If a link is no longer working please use
the title or other information given to search for its new address.

1.3 Textbooks

Core text
¢¢ Le Sueur, A., M. Sunkin and J.E.K. Murkens Public law: text, cases and materials.
(Oxford: Oxford University Press, 2019) fourth edition [ISBN 9780198820284].

Statute book
¢¢ Core statutes on public law & civil liberties 2019–20 (Palgrave Macmillan).

Further reading
¢¢ Bogdanor, V. The new British constitution. (Oxford: Hart Publishing, 2009)
[ISBN 9781841136714].
page 4 University of London

¢¢ Brazier, R. Constitutional reform: reshaping the British political system. (Oxford:


Oxford University Press, 2008) third edition [ISBN 9780199233045].

¢¢ Jowell, J., D. Oliver and C. O’Cinneide (eds) The changing constitution. (Oxford:
Oxford University Press, 2019) ninth edition [ISBN 9780198806363]. This book
contains recent essays on many of the topics covered in this module.

¢¢ King, A. The British constitution. (Oxford: Oxford University Press, 2009)


[ISBN 9780199576982].

¢¢ Leyland, P. The constitution of the United Kingdom: a contextual analysis. (Oxford:


Hart Publishing, 2016) third edition [ISBN 9781849469074].

¢¢ Syrett, K. The foundations of public law. (Basingstoke: Palgrave Macmillan, 2014)


second edition [ISBN 9781137362674].

There are several introductory books, shorter than textbooks, which seek to give an
overview of constitutional law. These include:

¢¢ Loughlin, M. The British constitution: a very short introduction. (Oxford: Oxford


University Press, 2013) [ISBN 9780199697694].

¢¢ Tomkins, A. Public law. (Oxford: Clarendon Press, 2003) [ISBN 9780199260775].

¢¢ Barendt, E. An introduction to constitutional law. (Oxford: Oxford University Press,


1998) [ISBN 9780198762546]. This provides a clear and succinct account of some
of the principles underlying the UK constitution. It does, however, precede the
substantial constitutional changes that have taken place over the last 20 years
or so.

For an introduction to the history of the UK constitution, try one of these:

¢¢ Lyon, A. Constitutional history of the UK. (Abingdon: Routledge, 2016) second


edition [ISBN 9781138910676].

¢¢ Wicks, E. The evolution of a constitution: eight key moments in British constitutional


history. (Oxford: Hart Publishing, 2006) [ISBN 9781841134185].

There are also some references to texts not listed here in the Further reading.

Detailed reading references in this module guide refer to the editions of the textbooks
listed above. New editions of one or more of these textbooks may have been
published by the time you study this module. You can use a more recent edition of
any of the books; follow the detailed chapter and section headings and the index
to identify relevant readings. Also check the VLE regularly for updated guidance on
readings.

1.4 Journals
You will often be referred to articles in journals. These are generally available online.
The main UK journal in the field is Public Law, published four times a year since 1956.
This is available electronically via Westlaw. The general UK academic law journals, such
as the Cambridge Law Journal, Law Quarterly Review, Modern Law Review and the Oxford
Journal of Legal Studies, also often have articles of interest. The journal Parliamentary
Affairs is also a useful source for some topics — though not written primarily by or for
lawyers (please note this journal is not available in the Online Library). There is also
a recently launched journal, the International Journal of Constitutional Law, devoted
to international and comparative constitutional law. Here you will find articles and
comments on developments pertaining to many different constitutional systems
including that of the European Union as well as its Member States (which of course
included the UK until 2019). The leading specialist journals pertaining to EU law are the
Common Market Law Review, the European Law Review (not currently available in the
Online Library) and the European Law Journal.
Public law  1  Introducing public law page 5

Please note that as long as you read the Essential reading you are then free to read
around the subject area in any text, paper or online resource. You will need to support
your learning by reading as widely as possible and by thinking about how these
principles apply in the real world. To help you read extensively you have the VLE,
Online Library and other legal resources.

1.5 Online study resources


In addition to the module guide and the Essential reading, it is crucial that you take
advantage of the study resources that are available online for this module, including
the VLE and the Online Library.

1.6 Assessment
Important: the information and advice given here are based on the examination
structure for the session 2019/20. We strongly advise you to always check both the
current Regulations for relevant information about the examination, and the VLE. You
should also carefully check the rubric/instructions on the paper you actually sit and
follow those instructions.

The examination usually contains eight questions. Many of these are essay questions,
which require you to show knowledge of the law and a critical approach to the law.

Others are problem questions, which require you to apply the law to a given factual
situation.

To cope with problem questions successfully, you must be able to see what issues
arise on the facts and advise on them accurately and succinctly, referring always to
the sources of law upon which you rely for your conclusions. The law may well be
uncertain. If so, you must explain why, and then choose what you believe to be the
decision most likely to be made by the court, giving reasons for your choice. In general
you must be aware of major proposals for reform of the law. You must also show a
capacity for independent thought. It follows that during your studies you should:

uu think for yourself about the persuasiveness of the arguments put forward in what
you read

uu ‘read around’ the topic

uu discuss problems with your tutor or lecturer

uu discuss problems with fellow students.


page 6 University of London
Notes
2 The UK constitution and its core institutions

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.1 Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.2 Key participants in the UK constitution . . . . . . . . . . . . . . . . . . 11

2.3 The ‘Westminster model’ . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.4 Reforming the Westminster model . . . . . . . . . . . . . . . . . . . . 14

2.5 Direct democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
page 8 University of London

Introduction
‘What is the constitution?’ A US citizen might answer ‘It’s a document in Washington
DC guaranteeing our liberties.’ The importance of this physical document to the
history and current sense of identity of the USA is set out on the following website:
www.archives.gov/exhibits/charters/constitution_transcript.html

Most other nations also have a document labelled ‘the constitution’ which has some
kind of a special status over and above the respect owed to ordinary laws.

A British citizen, on the other hand, will not find it so easy to reply. Although the Magna
Carta of 1215 might be pointed to as one source of British liberties, there is no single
document labelled the ‘British Constitution’.

This does not mean, of course, that functions of a written ‘constitution’ do not need to
have equivalents in a modern Western democracy such as the United Kingdom. In fact
these functions are described in a variety of sources, including ‘constitutional’ Acts of
Parliament and constitutional ‘conventions’.

In this chapter we will first look at some classifications of different types of


constitution. When reading around this area, it is important to bear in mind that some
of these classifications relate to the form that a constitution takes rather than to its
content.

We will then start to examine features of the UK constitution, commonly referred to as


‘the Westminster model’ and the key participants.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 1: The constitutional rulebook.

Further reading
¢¢ Bogdanor, V. The new British constitution, Chapter 1: A peculiar constitution.

¢¢ King, A. The British constitution, Chapter 1: What is a constitution?

¢¢ Leyland, P. The constitution of the United Kingdom, Chapter 1: UK constitution.

¢¢ Loughlin, M. The British constitution, Chapter 1: What constitution?

¢¢ Syrett, K. The foundations of public law, Chapter 1: An introduction to the study of


public law.

¢¢ Tomkins, A. Public law, Chapter 1: On constitutions.


Public law  2  The UK constitution and its core institutions page 9

2.1 Classifications
As we examine the traditional ways in which constitutions have been distinguished,
it is very important to remember that there is always a risk of over-simplification if
we do not recognise the complexity of the historically constructed and often untidy
institutions which they describe.

You might find it of interest to browse through a few different constitutions to gain
an overall impression of the similarities and differences. The following weblink to
the ‘Constitute project’ provides an easy means to do so: www.constituteproject.
org. You might like to briefly compare several constitutions which differ significantly
from each other in order to appreciate how these might reflect the different values
of their respective states – some interesting examples are to be found in the Cuban
constitution and the Irish constitution.

2.1.1 Written and unwritten


A written constitution represents an attempt by politicians and statesmen to
codify all the important laws and rules relating to the way in which the state will be
governed. It is important to remember that this is not an attempt to codify all laws in
a state. The aspiration is usually to include everything which is important in a single
document. Although historically the writers of constitutions have derived ideas from
other constitutions, the French and US constitutions being particularly influential
internationally, there is no universal blueprint for what should be included. Inevitably,
differing decisions will be made by different statesmen as to what is sufficiently
‘constitutional’ to be included.

The lack of a single overarching constitutional document for the United Kingdom
perhaps reflects its unique history in which there was no single moment of national
political consensus when a serious attempt was made to set out all the constitutional
arrangements in a coherent framework. The nearest attempt was made in the
17th century after the civil wars between the Royalists and Parliament. During the
Protectorate when there was no king, Oliver Cromwell drafted his ‘Instrument of
Government’ which set out how England, Wales, Scotland and Ireland were to be
ruled. However, this document was abandoned and not replaced when Charles II was
‘restored’ to the throne after Cromwell’s death.

2.1.2 Rigid and flexible


The importance of the subject matter of a constitution means that most people
will see the value in its stability. Countries where there is constant conflict between
elected politicians and judges amid uncertainty about the rules governing their
relationships are not usually happy ones. Nonetheless, from time to time, political
and social changes may mean that the existing constitutional arrangements have to
change and adapt.

The process of changing the constitution may be very difficult in a rigid constitution,
such as the USA, or relatively straightforward in a flexible constitution, such as
the United Kingdom. Consider the method by which the United Kingdom shared
its political sovereignty with other European states when it entered the European
Community (now the European Union) in 1973. A simple Act of Parliament was
passed (i.e. the European Communities Act 1972) and, although a referendum was
subsequently held to endorse the decision, there was no constitutional requirement
to hold one. By way of comparison, when the Irish government wished to change
the (written) Irish constitution to permit divorce in 1995, it was obliged to hold a
referendum. Remember, though, both constitutional changes were politically very
difficult for the Irish and British governments.
page 10 University of London

2.1.3 Republican and monarchical


The United Kingdom is often described as a constitutional monarchy. Its head of state
is an unelected king or queen who ‘reigns’ over his or her ‘subjects’. Although the
presence of the current monarch, Elizabeth II, is still pervasive on coins, stamps and
letterboxes, the constitutional significance of her status is much diminished. Lord
Bingham has stated:

The political power of the monarch has diminished to vanishing point, since the personal
directions which remain are very limited, must be exercised according to clearly-
understood principles and cannot be regarded as an exercise of independent power in
any ordinary sense.

The formal powers of the monarch, referred to as prerogative powers, are now (with
a few exceptions) largely exercised by the head of the government, the Prime Minister.
We will discuss the significance of the Crown, representing the government, and the
prerogative powers in more detail in Chapter 7.

There are a variety of republican constitutional models. One clear distinction is


between those states that give the elected head of state (usually known as the
president) significant political power, such as France and the USA, and those whose
presidents are meant to represent the nation as a whole and be above the political
fray, for example Germany.

2.1.4 Unitary and federal


The political and governmental arrangements of a nation reflect many factors
including, of course, its history. The geography of the state is also often significant.
States which have a very large land mass with diffuse centres of population have been
compelled by reasons of practicality to adopt systems of government where many
aspects of decision making are divided among the legislatures of provincial or state
assemblies or parliaments. Governmental functions that are seen as truly national,
including foreign affairs, are exercised by a national legislature. Such systems of
government are known as federal, with Canada and the USA being obvious examples.
Political and constitutional conflict between federal legislatures and provincial or
state governments are very common in many federal countries.

In many (though not all) smaller countries, government from the centre is accepted
more readily, with much weaker local government. Such political systems are referred
to as unitary. Ireland is an example.

The United Kingdom has operated for centuries as a state with many features of a
unitary constitution. The UK Parliament in Westminster, London, has legislated for the
whole of the United Kingdom, although it has always recognised the distinctiveness
of Scotland, in particular, through various conventions. Following the introduction
of devolution, granting political power to elected assemblies in Wales and Northern
Ireland and an elected Scottish Parliament, the unitary aspects of the UK constitutional
model have been diminished. It is now more appropriate to describe it as a
‘multilayered’ form of government.

On 18 September 2014 a referendum was held in Scotland on the question of whether


Scotland should become an independent country. In this referendum the majority
voted against independence. However, had this resulted in a majority vote in favour
of independence, the structure of the UK would have been subject to fundamental
constitutional and structural change.

We will discuss devolution in more detail in Chapter 13.

Further reading on UK constitutional reform and development:

¢¢ Bogdanor, V., T. Khaitan and S. Vogenauer ‘Should Britain have a written


constitution?’ (2007) 78 The Political Quarterly 499–517.

¢¢ Gordon, R. Repairing British politics: a blueprint for constitutional change. (Oxford:


Hart Publishing, 2010) [ISBN 9781849460491].
Public law  2  The UK constitution and its core institutions page 11

¢¢ Constitution UK, ‘The People’s Constitution’: http://blogs.lse.ac.uk/


constitutionuk/2015/06/15/the-peoples-constitution/

2.2 Key participants in the UK constitution


Consider the following diagram:

Supreme Court House of Lords

Cabinet Special Civil


advisors Service
Prime Minister
Court of Appeal
House of Commons

Lower courts

Figure 2.1
The structure of the court system is fairly orthodox when compared to legal systems
in other jurisdictions. The Supreme Court is at the apex of the appeal system and the
progression of a case from the lower courts to the Supreme Court via the Court of
Appeal seems logical and coherent.

When we examine Parliament, however, we have some curious features. The head of
government, the Prime Minister, must (by constitutional convention) be a member of
the ‘lower’ House, the House of Commons. The cabinet is drawn from both the House
of Commons and the House of Lords (i.e. the upper House) and the Prime Minister’s
personal powers are derived largely from the historical prerogative powers given to
the monarch.

Alongside the cabinet and government in the diagram we can see the civil service.
An important aspect of government is that the ministers who form the government
need help to achieve their objectives. Unlike in some countries, such as the USA, where
there is a convention that senior civil servants are replaced when a new government
is formed, the traditional approach in the United Kingdom has been for senior civil
servants to remain in post. The neutrality of the civil service has been questioned
in recent years in the light of the growing importance of politically partisan ‘special
advisers’, whose roles have sometimes brought them into conflict with professional
civil servants.

2.3 The ‘Westminster model’


There are a number of key features that have been identified in the system of
government of the United Kingdom.

uu The government is largely drawn from the ‘lower’ House of Parliament, the House
of Commons.

uu Parliament is the apex of the system of government and has supreme law-making
power, unchecked by a constitutional court.

uu The ministers in the government are effectively held in check by systems of


‘accountability’ which apply not only during elections but in between them as well.

This simple description has, inevitably, been challenged on the grounds that it
describes an ideal that has never existed rather than the more fluid and untidy reality
of government in 21st-century Britain. We will now consider some aspects of how the
constitution works in practice and compare them to the ideal.
page 12 University of London

2.3.1 Relationship between government and Parliament


In theory the government is held in check by Parliament, in particular the House of
Commons. There are various aspects by which the degree of control of government
by Parliament and of Parliament by government can be measured. One aspect is
the extent to which Acts of Parliament can be passed without the support of the
government. Parliamentary procedures provide limited opportunities for ‘backbench’
(i.e. non-ministers) MPs and members of the House of Lords to introduce Private
Members’ Bills on topics of their own choosing. In theory this should be a great
opportunity for law making to be carried out in less fashionable areas of law with
greater consensus between politicians of all parties. Nonetheless, the hard reality is
that very few Private Members’ Bills actually become statutes. In relation to public
bills in the 2013–14 parliamentary session, for example, a mere five Private Members’
Bills completed the parliamentary legislative process, compared to a total of 30 Acts
of Parliament. In the 2014–15 parliamentary session, 10 Private Members’ Bills received
Royal Assent out of a total of 36 public bills which became statutes.

Activity 2.1
Watch the podcast about Private Members’ Bills at:
www.parliament.uk/about/podcasts/theworkofparliament/privatemembersbills/
and answer the following questions.
a. What day of the week are Private Members’ Bills considered by Parliament?

b. How many days are allocated in a parliamentary session to Private Members’ Bills?

c. How many Private Members’ Bills are selected in the ballot?

d. What was the subject matter of Cheryl Gillan’s Bill?

e. How can an opponent of a Private Member’s Bill ‘kill’ it?

f. Is there any method of preventing a Private Member’s Bill being ‘killed’?

g. How did David Mundell make his decision on what he should include in his
Private Member’s Bill?

h. Which government departments did he consult and what was their response?

i. Statistically, what proportion of Private Members’ Bills become law?

j. Do you think that the system of Private Members’ Bills should be improved and,
if so, how?

Activity 2.2
Find the ballot results for Private Members’ Bills for the 2015–16 Parliamentary
session via the Parliament website and answer the following questions:
a. What is the name of the MP who was drawn first in the ballot?

b. Find at least one of the Private Members’ Ballot Bills which became law in the
previous (i.e. 2014–15) parliamentary session.

Activity 2.3
Find the ballot results for Private Members’ Bills for the 2016–17 Parliamentary
session via the Parliament website and answer the following questions:
a. What is the name of the MP who was drawn first in the ballot?

b. What was the subject matter of the Private Members’ Bill introduced by this MP?

Another method by which government departments and ministers can be held in


check by Parliament is the use of departmental select committees. Select committees
are made up of backbench MPs and are headed by a chair who is elected by a secret
ballot of the House of Commons. The importance of the secret ballot lies in the fact
that it prevents the government from using government whips to influence more MPs
to choose chairs who are more malleable.
Public law  2  The UK constitution and its core institutions page 13

Activity 2.4
Watch the film ‘Select committees in the House of Commons. Asking the questions
you want answered’, on the Parliament website: www.parliament.uk/about/
podcasts/theworkofparliament/select-committees-in-the-house-of-commons/
Compare this description to the blogpost ‘The House of Commons’ Select
Committees are now more independent of government. But are they any better
informed?’ (Dunleavy, P. and C. Gilson, 15 July 2010): http://blogs.lse.ac.uk/
politicsandpolicy/the-house-of-commons’-select-committees-are-now-more-
independent-of-government-but-are-they-any-better-informed/ and answer the
following questions:
a. What are the factors that influence the topics which select committees
investigate?

b. What reforms have been introduced to deal with the problem of MPs not
attending their select committees?

c. How valid do you think Dunleavy and Gilson’s criticisms of the methods of
information gathering by select committees are?

2.3.2 Lack of constraint by a constitutional court


Although the United Kingdom now has a Supreme Court, it is inaccurate to assume
that it has a similar function to the US Supreme Court, which has an overt role as a
guardian of the US constitution. Nonetheless, the Supreme Court (and its predecessor,
the House of Lords) has made a number of important decisions that have caused
considerable frustration to government ministers and, arguably, imposed constraints
on the will of Parliament. The Court of Justice of the European Union has enforced EU
law in the United Kingdom and the European Court of Human Rights (ECtHR) has made
a number of very controversial decisions concerning the civil liberties of suspected
terrorists. The decision in Hirst v United Kingdom (2005) by the ECtHR that s.3 of the
Representation of the People Act 1973, which imposes a complete ban on voting by
prisoners, breached the European Convention on Human Rights (ECHR) has caused
particular controversy among MPs and government ministers.

2.3.3 Delegated legislation


Delegated legislation, usually in the form of rules, regulations and orders (collectively
described as ‘statutory instruments’), makes up an increasingly large proportion of UK
law. The scale of this law making can be seen at: www.legislation.gov.uk, where the ‘UK
Statutory Instruments’ section indicates that 1,290 statutory instruments were created
in 2017 and 1,243 in 2016. This compares with only 35 Public General Acts in 2017 and 25
in 2016.

Although a large proportion of statutory instruments concern temporary road


traffic closures of minimal public interest to those not stuck in resulting traffic jams,
a significant number deal with important detailed areas of law such as welfare
benefits, environmental regulation, etc. Delegated legislation does not pass through
the parliamentary stages undergone by Acts of Parliament. Instead most statutory
instruments are created by ministers (and usually drafted by their civil servants) who
have been given this law-making power by Acts of Parliament.

Parliamentary scrutiny of delegated legislation is, as a result, fairly minimal. Some


statutory instruments must be approved by both Houses under the affirmative
procedure and others may be annulled by a resolution of either House under the
negative procedure, but two-thirds are not examined by MPs or Lords at all. We will
examine UK delegated legislation in more detail in Chapter 9.
page 14 University of London

2.3.4 Prime ministerial government instead of cabinet government?


The focus of media discussion of politics in the United Kingdom tends to be on
personalities. The greatest attention is often on the Prime Minister and his or her
decisions about how the nation should be governed. Recent Prime Ministers, such as
Margaret Thatcher and Tony Blair, were such strong personalities that their personal
political power tended to overshadow that of their cabinet colleagues. Nonetheless,
both of them were constrained in important ways by the need to retain support from
the ministers in their cabinets.

Although there was a single-party (Conservative) majority government from 2015–17


this previous ‘norm’ does not appear to be as certain an outcome as it was in the
past. The current Prime Minister, Theresa May, since the early election in June 2017,
is leading a minority government (the Conservatives remained as the largest party
in the Commons but having lost their majority agreed a ‘confidence and supply’
arrangement with the Democratic Unionist Party (DUP) of Northern Ireland).
Between 2010 and 2015 May’s predecessor, David Cameron, was Prime Minister of
the Conservative/Liberal Democrat coalition government. He thus had to work with
cabinet colleagues who had significantly different politics from him. This meant that
a more consensual and collegiate approach was adopted, in which the Prime Minister
worked closely with the Liberal Democrat Deputy Prime Minister, Nick Clegg. However,
as the 2015 general election drew closer, it arguably became politically advantageous
for David Cameron to emphasise the areas of policy in which he had different views
from his Liberal Democrat cabinet colleagues.

‘Confidence and supply’ agreements are arrangements short of a formal coalition in


which smaller parties agree to support another, larger party in critical votes, such as in
votes of confidence and in finance (‘supply’) votes.

2.3.5 Membership of the European Union


Since the United Kingdom joined the European Economic Community (the
predecessor of the European Union) in 1973, there has been a series of treaties which
have contained measures integrating decision making and legislation into European
law. We will discuss EU law and its impact on UK constitutional law in Chapters 11
and 12, but it is worth noting at this stage that the introduction of majority voting
by member states in some areas of policy, rather than a requirement of unanimity,
represented a particular challenge to the Westminster model during Britain’s
membership from 1973 to 2019.

2.4 Reforming the Westminster model


Despite the problems with the Westminster model, which we have outlined above,
many MPs, ministers and Lords continue to be intellectually and even emotionally
attached to it. A number of steps have been taken to improve the effectiveness of law
making and debate in and around Parliament. Ministers are increasingly expected to
be accountable for their decisions. Note the following innovations.

uu Debates on topics selected by backbench MPs: Debates may now be heard in


Westminster Hall, a building adjoining the Houses of Parliament, as well as in
Parliament itself. The Backbench Business Committee, which was created in 2010,
has the power to allocate a limited amount of parliamentary time for debates on
topics selected by backbench MPs. Such debates are usually on topical issues and
should attract a reasonable amount of interest from MPs.

uu Draft Bills: In recent years judges and other commentators have criticised the
quality of the drafting of controversial Acts of Parliament. In order to identify
problems with legislation at an early stage, the government will now publish some
draft Bills to allow more time for comments and improvements. The draft Bills will
be examined by select committees from either the House of Commons or House of
Lords. See www.parliament.uk/about/how/laws/draft/
Public law  2  The UK constitution and its core institutions page 15

2.5 Direct democracy


Underpinning the idea of direct democracy is the belief that law making will have
greater acceptability to the voters if they have a direct say in what laws will be made
and their content. This is clearly a significant challenge to the Westminster model
which rests on the assumption that law is best made by representatives of the people
rather than by the people themselves. There are clearly difficulties with this approach:
is it realistic to expect most voters to engage with the complexity of many legislative
issues? Will populist campaign groups distort the debate and drown out opposing
arguments?

Several methods of direct democracy have been used in the United Kingdom.

2.5.1 Referendums
The ideal form of referendum is a straightforward question to which there are two
possible answers – ‘yes’ or ‘no’. Not all referendum questions are as succinct. Consider
the following examples:

‘Do you think the United Kingdom should stay in the European Community?’

uu The answer in 1975 was ‘yes’.

‘I agree/do not agree that there should be a Scottish Parliament’ and ‘I agree/do not
agree that the Scottish Parliament should have tax-varying powers’

uu The answer from Scottish voters in 1997 was agreement to both propositions.

More recently, the response of voters to referendum questions has often been
negative. Note the decisive rejection of the following question in 2011:

uu ‘At present, the UK uses the “first past the post” system to elect MPs to the House of
Commons. Should the “alternative vote” system be used instead?’

In June 2016, the UK voted in a referendum on continued UK membership of the EU.


The question was:

‘Should the United Kingdom remain a member of the European Union or leave the
European Union?’

The other recent use of a referendum in the UK was not UK-wide (unlike the AV and
EU referendums) but confined to voters in Scotland – on the question of Scottish
independence.

Activity 2.5
Look at the House of Lords select committee 12th Report of session 2009–10
‘Referendums in the United Kingdom’ (HL paper 99) at: www.publications.
parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf and answer the following
questions.
a. Identify three suggested advantages of referendums. Which of your chosen
three advantages do you think is the strongest argument in favour and why?

b. Identify three suggested disadvantages of referendums. Which of your chosen


three disadvantages do you think is the strongest argument against and why?

2.5.2 Other methods of direct democracy


A number of other methods of engaging more directly with voters outside elections
have been used in the United Kingdom.

E-petitions
Following an inquiry by the Procedure Committee, in 2015 a new e-petitions system
was set up and a Petitions Committee established to look at both e-petitions and
paper petitions presented to the House of Commons.
page 16 University of London

Please look at the Petitions Committee on the Parliament website for further details of
its function, in particular how it makes decisions, and also consider how it works with
the Backbench Business Committee: www.parliament.uk/petitions-committee

Activity 2.6
Go to the e-petitions website at: https://petition.parliament.uk/ and identify which
e-petitions are currently trending. Do you think they are raising important and
neglected issues for Parliament to consider?

Social media
Parliament has started to engage with social media such as Twitter, Facebook, etc. See:
www.parliament.uk/get-involved/have-your-say/online-discussion-rules/

2.6 Summary
1. Constitutions can be classified in different ways, including federal or unitary,
republican or monarchical. They may be rigid or flexible.

2. In contrast to most democratic countries, the United Kingdom is often described


as having an unwritten constitution. There is no single document labelled the
‘UK Constitution’, but a better description is that it is uncodified, since most of
the rules and conventions are written down in various Acts of Parliament and
descriptions of conventions.

3. The ‘Westminster model’ of government is still considered by many


parliamentarians (though not by many legal commentators) to represent the
form of government of the United Kingdom. It features government drawn
from the majority party or parties in the House of Commons and House of Lords.
Parliament is the unchallenged apex of the system of government, without any
limitations imposed by a constitutional court, and ministers are held accountable
to Parliament.

4. The relationship between Parliament and the government can be viewed in various
ways, including the extent to which individual MPs and Lords can create law
through Private Members’ Bills.

5. Select committees have acquired greater powers to question and challenge


government ministers, but their effectiveness is still limited.

6. The relationship between the courts and government has been strained in recent
years over various issues, including the effect of decisions of the Court of Justice of
the European Union and the ECtHR. The UK Supreme Court does not, however, fulfil
the functions of a constitutional court.

7. Control by Parliament over delegated legislation (statutory instruments) is very


limited, although the affirmative and negative procedures are sometimes used.

8. The ability of the Prime Minister to impose his or her will on the government varies
depending on the personalities involved, and, occasionally, as in 2010–15, in the
light of the constraints of coalition government.

9. Incremental reforms to the Westminster model include providing a mechanism for


backbench MPs to instigate debates. The use of draft Bills enables earlier scrutiny
by MPs and other interested parties.

10. Direct democracy poses challenges to the Westminster model. Referendums, in


particular, detract from the representative approach to law making and may lead
to bad policy making when difficult decisions are considered in isolation.

11. Other methods of direct democracy include e-petitions and social media.
3 Parliamentary supremacy

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3.1 The traditional view . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.2 The enrolled Bill rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.3 Doctrine of implied repeal . . . . . . . . . . . . . . . . . . . . . . . . 19

3.4 The ‘manner and form’ argument . . . . . . . . . . . . . . . . . . . . 21

3.5 Parliament Acts 1911 and 1949 . . . . . . . . . . . . . . . . . . . . . . 21

3.6 The Act of Union 1706 . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3.7 Parliamentary supremacy and the European Union . . . . . . . . . . . . 23

3.8 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 24

3.9 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
page 18 University of London

Introduction
In this chapter we consider a crucial, if controversial, feature of the UK constitution:
parliamentary supremacy or, more exactly, the legislative supremacy of Parliament. We
will examine the traditional approach, favoured by legal writers and politicians known
as ‘political constitutionalists’, which treats the political process and Parliament as
having supreme power and legitimacy. Ultimately, according to this view, the courts
will follow the expressed will of Parliament regardless of the content of the statute.

We will then consider the legal writers, including some senior judges, who are
described as ‘legal constitutionalists’. Their approach is to argue that the judiciary
should have and, indeed, does have residual powers to strike out Acts of Parliament
which are contrary to fundamental rights or constitutional principles. Issues which are
relevant to the arguments of the legal constitutionalists include the Parliament Acts
1911 and 1949, the Act of Union with Scotland and the status of EU law in the United
Kingdom as well as the Human Rights Act 1998 (HRA).

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 2: The legislative supremacy of the UK
parliament.

Further reading
¢¢ Gordon, M. ‘The conceptual foundations of parliamentary sovereignty:
reconsidering Jennings and Wade’ (2009) Public Law 519.

¢¢ Jowell, J. ‘Parliamentary sovereignty under the new constitutional hypothesis’


(2006) Public Law 562.

¢¢ Laws, J. ‘Constitutional guarantees’ (2008) 29 Statute Law Review 1.

¢¢ Loughlin, M. The British constitution, Chapter 2: Writing the constitution.


Public law  3  Parliamentary supremacy page 19

3.1 The traditional view


The legal writer Dicey defined parliamentary supremacy as follows:

Neither more nor less than this, namely, that Parliament thus defined has, under the
English constitution, the right to make and unmake any law whatsoever; and, further, that
no person or body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament.
(Dicey, A.V. Introduction to the study of the law of the constitution. (Indianapolis, IN: Liberty
Fund, 1982) 8th revised edition [ISBN 9780865970038])

Parliament, as understood by Dicey, meant the House of Commons, the House of Lords
and the monarch collectively. His statement makes two propositions: first, all Acts
of Parliament, whatever their purpose, will be obeyed by the courts; and second, no
person or body can override an Act of Parliament.

The obvious question which follows from Dicey’s assertion is: what is the legal basis of
this power of parliamentary supremacy, given that (as explained in Chapter 2) there is
no single document called ‘The English Constitution’? Wade has argued:

The rule is above and beyond the reach of statute...because it is itself the source of the
authority of statute...The rule of judicial obedience is in one sense a rule of common law,
but in another sense – which applies to no other rule of common law – it is the ultimate
political fact upon which the whole system of legislation hangs. Legislation owes its
authority to the rule: the rule does not owe its authority to legislation.
(Wade, H.W.R. ‘The basis of legal sovereignty’ (1955) 13 CLJ 172)

There are numerous instances of judicial decisions where the courts have affirmed
the supremacy of Acts of Parliament. In Madzimbamuto v Lardner-Burke (1969), where
the Southern Rhodesia Act 1965 was considered following the unilateral declaration
of independence of the white minority government of Southern Rhodesia (now
Zimbabwe), the court held that the Act was still valid and Southern Rhodesia remained
a British colony. Lord Reid stated:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do
certain things, meaning that the moral, political and other reasons against doing them
are so strong that most people would regard it as highly improper if Parliament did these
things. But that does not mean that it is beyond the power of Parliament to do such things.
If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

3.2 The enrolled Bill rule


* Each Act of Parliament is
The courts’ reluctance to challenge the validity and authority of an Act of Parliament is printed on a ‘roll’ of vellum
illustrated by their approach to arguments about defects or procedural irregularities (calfskin). An interesting
in particular Acts. In Edinburgh and Dalkeith Rly Co v Wauchope (1842), the House of debate has arisen recently
Lords rejected the argument that an Act was invalid because the claimant had not with regards to the continued
been given notice of it in accordance with parliamentary Standing Orders. Lord printing of Acts of Parliament
Campbell stated, obiter: on vellum. You might like
to read about it here: www.
All that a court of justice can look to is the parliamentary roll;* they see that an Act has
parliament.uk/business/
passed both Houses of Parliament, and that it has received the Royal Assent, and no court
committees/committees-
of justice can inquire into the manner in which it was introduced into Parliament, what
a-z/commons-select/
was done previously to it being introduced, or what passed in Parliament during the
administration-committee/
various stages of its progress through both Houses of Parliament.
news-parliament-2015/
This statement was affirmed by Lord Reid in British Railways Board v Pickin (1974). publication-of-first-report/

3.3 Doctrine of implied repeal


As we have seen, one of the key features of the traditional approach to parliamentary
supremacy is the potential for any Act of Parliament to be amended or repealed by a
later Act. Parliamentary draftsmen take great pains to review the context of how a new
Bill is to fit into the framework of existing Acts. Often the Schedules of a Bill will list a
series of specific repeals and amendments of existing Acts.
page 20 University of London

Sometimes, however, an unanticipated inconsistency between two Acts of Parliament


becomes apparent. The courts are faced with the dilemma of deciding between the
two Acts. Under the doctrine of implied repeal, the later Act is deemed impliedly to
repeal the earlier Act to the extent that the two Acts are incompatible.

Activity 3.1
Find Ellen Street Estates Ltd v Minister of Health (1934) in LexisLibrary or Westlaw and
answer the following questions.
a. Which two inconsistent Acts were considered in this case?

b. In what way were the two Acts in conflict?

c. State the wording of s.7(1) of the earlier Act.

d. What did Scrutton LJ consider the effect of s.7(1) on the conflicting provisions of
the later Act?

The doctrine of implied repeal was considered more widely in Thoburn v Sunderland
City Council (2002), when it was held that the European Communities Act 1972 could
not be impliedly repealed by the Weights and Measures Act 1985. Laws LJ identified
a class of ‘constitutional statutes’ which define fundamental rights. In his opinion a
constitutional statute:

(a) conditions the legal relationship between citizen and state in some general,
overarching manner, or

(b) enlarges or diminishes the scope of what we would now regard as fundamental
constitutional rights.

He listed examples of such Acts, including the Magna Carta, the Bill of Rights 1689, the
Acts of Union, the Reform Acts, the European Communities Act 1972, the Scotland Act
1998, the Government of Wales Act 1998 and the HRA.

He argued that ‘constitutional statutes’ can only be repealed expressly and not impliedly:

The court would apply this test: is it shown that the legislature’s actual – not imputed,
constructive or presumed – intention was to effect the repeal or abrogation?

Subsequently he explained the implications in relation to parliamentary supremacy:

It would not mean the loss of sovereignty. It would merely specify the conditions in
which Parliament could change the constitutional law. And the conditions would be just
the same as those which presently apply if Parliament seeks to change constitutional
principles established by the common law.

There are problems with Laws LJ’s arguments, not least because they have not been
explicitly approved by the Court of Appeal or Supreme Court. Although for recent
discussion see the HS2 case – R (HS2 Action Alliance Ltd) v Secretary of State for Transport
[2014] UKSC 3 – in which ‘constitutional instruments’ are referred to (at para.207)
and the following blogpost: https://ukconstitutionallaw.org/2014/01/23/mark-elliott-
reflections-on-the-hs2-case-a-hierarchy-of-domestic-constitutional-norms-and-the-
qualified-primacy-of-eu-law/

There is also the difficulty of identifying who decides whether a particular statute is a
‘constitutional’ statute – the courts or Parliament? For further discussion see Chapter 8.

Activity 3.2
Listen to the audio presentation on the VLE discussing the concept of
entrenchment.
No feedback provided.
Public law  3  Parliamentary supremacy page 21

3.4 The ‘manner and form’ argument


One of the ways in which the traditional approach to parliamentary supremacy has
been challenged has been the argument that, although Parliament has no limits on
the subject matter on which it legislates, the manner and form in which it legislates
can be limited. Under this argument special procedures for making legislation, such
as requiring a referendum, can be imposed. If the set procedures are not followed, the
courts could, it is argued, prevent the subsequent Act from being passed.

One of the cases which has been used to support this argument is Minister of the
Interior v Harris (1952). This South African case concerned a provision in the UK
Parliament’s South Africa Act 1909 which created the Union of South Africa from
the previous British colony. Under the South Africa Act 1909 an attempt was made
to preserve the existing voting rights of a mixed-race community known as ‘Cape
Coloureds’ by requiring a two-thirds majority of both Houses of the new Union
of South Africa parliament before these rights could be removed. As part of the
introduction of apartheid in 1948, the South African parliament removed the voting
rights under an Act which was passed without the two-thirds majority. The Supreme
Court of South Africa held that the requirements of the South Africa Act 1909 were
entrenched and the 1948 Act was therefore invalid.

Minister of the Interior v Harris (1952) is, of course, a Commonwealth case and not
binding in the United Kingdom. A more fundamental problem with relying on it in the
UK context is that it reflects a relationship between a legislature and a ‘higher’ law, in
this case imposed by the UK Parliament in 1909.

3.5 Parliament Acts 1911 and 1949


In the United Kingdom there is no written documentary constitution setting out the
procedures for legislating. It is useful, nonetheless, to consider the Parliament Acts 1911
and 1949 under which special procedures can be applied, in specified circumstances,
for passing Acts of Parliament without the consent of the House of Lords.

3.5.1 Historical background


The Parliament Act 1911 was passed following a constitutional struggle between the
Liberal government, which controlled the House of Commons, and a Conservative-
dominated House of Lords. When the Liberal government was not able to get its social
welfare legislation approved by the House of Lords, the Prime Minister threatened to
overturn the Conservative majority in the House of Lords by creating large numbers
of Liberal peers. Eventually the House of Lords approved the Parliament Act 1911. The
Parliament Act 1949 subsequently shortened the required period of delay before the
procedures for obtaining the Royal Assent without the approval of the House of Lords
could be used.

3.5.2 Key provisions


uu Section 1: This provides that ‘money Bills’ (covering taxation and finance) approved
by the House of Commons must, so long as there is at least one month remaining
before the end of the parliamentary session, be approved without amendment
within one month by the House of Lords.
page 22 University of London

uu Section 2: A non-money Public Bill can be approved if the following timescale has
been met:

Parliamentary session 1* House of Commons 2nd Reading

House of Commons approval At least one year

House of Lords rejection

Parliamentary session 2* House of Commons approval

House of Lords rejection

Bill is sent for Royal Assent

* A parliamentary session usually lasts for one year, starting in the spring.

Figure 3.1

Activity 3.3
Find s.2 of the Parliament Act 1911 (as amended) in LexisLibrary or Westlaw and
answer the following questions.
a. Consider the following fictitious Bill:

The Drainage (Miscellaneous Operations) Bill had its second reading approved
by the House of Commons on 1 July 2012 and was subsequently approved by the
House of Commons and rejected by the House of Lords. The minister proposing
the Bill is aware that there is implacable political hostility to the proposals
in the Bill by the House of Lords and no scope for compromise. She wishes to
reintroduce the unchanged Bill in the next parliamentary session using the
Parliament Acts procedure. What time limit must she ensure is observed?

b. Identify a type of Public Bill (in addition to a money Bill) for which the
Parliament Acts procedures are not available.

An unusual feature of Acts passed under the Parliament Acts procedures is the
‘enacting formula’ at the beginning of the Act which states:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent
of the Commons, in this present Parliament assembled, in accordance with the provisions
of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows.

The significance of this formula was considered by R. Ekins in ‘Acts of Parliament and
the Parliament Acts’ (2007) 123 LQR 91:

Parliament intended the 1911 Act to serve as a decision-making procedure, enabling


the Queen, Lords and Commons to legislate even when the Lords disagreed. If the Act
bypassed the Lords altogether, it would be a delegation of authority...Thus the Lords do
participate in legislative acts pursuant to the Parliament Acts. The authority they share is
exercised to enact legislation and the Lords should understand the resulting Act to be in
some sense their Act, in the same way that the minority in the House understands the vote
of the majority to settle how the House acts.

Besides the Parliament Act 1949, only a few Acts have been passed under the
Parliament Acts procedure. This reflects the normal deference of the House of Lords to
the democratic will of the people as expressed in the voting of the House of Commons,
as well as the willingness of both Houses to compromise. Acts which were passed
under these procedures include the Government of Ireland Act 1914, the War Crimes
Act 1991 and the Hunting Act 2004.

In Jackson v A-G (2005) the opponents of the Hunting Act 2004, which banned the
hunting of wild animals with dogs, argued that the Parliament Act 1949 was invalid
because, as delegated legislation, it was outside the powers of the Parliament Act 1911.
Public law  3  Parliamentary supremacy page 23

The House of Lords held that the Parliament Act 1949 was valid primary legislation
(see Ekins above) and was valid along with the Hunting Act 2004. The fact that only
two of the three constituent elements of Parliament had approved it did not make it
delegated legislation.

Activity 3.4
Look at the UK Parliament website to find out how many Acts have been passed
using the Parliament Acts procedure.

3.6 The Act of Union 1706


This Act provided for the union of Scotland and England ‘for ever after’. It contained
a number of provisions which were intended to be entrenched and bind the future
United Kingdom Parliament. Although there have subsequently been changes in
legislation affecting the Act of Union, some Scots lawyers have argued that restraints
have been recognised and complied with in practice.

In MacCormick v Lord Advocate (1953) objections were raised as to the designation of


the new Queen Elizabeth as ‘Queen Elizabeth the Second’ when Elizabeth I had only
been queen of England and not Scotland (for a historical time line of the English and
Scottish monarchs, see: www.britroyals.com/rulers.htm). The claim failed, but in obiter
comments Lord Cooper stated:

[t]he principle of the unlimited sovereignty of Parliament is a distinctively English principle


which has no counterpart in Scottish constitutional law.

The force of this statement has been undermined by the fact that no Scottish court has
held an Act of Parliament to be invalid on the basis of inconsistency with the Act
of Union.

3.7 Parliamentary supremacy and the European Union


NOTE that the UK is due to leave the EU in 2019. What follows relates to the law during
the period of EU membership 1973 to 2019.

We will examine the relationship between EU law and UK law in more detail in
Chapter 12. At this stage it is important to note the provisions of s.2 of the European
Communities Act 1972:

(1) All such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties...are without further enactment to be given
legal effect or used in the United Kingdom shall be recognised and available in law...

(4) any enactment passed or to be passed, other than one contained in this part of this
Act, shall be construed and have effect subject to the foregoing provisions of this
section…
Lord Hope in Jackson v A-G (2005) has argued that the net effect of these two
subsections:

[c]oncedes the last word in this matter to the courts. The doctrine of the supremacy of
Community law restricts the absolute authority of Parliament to legislate as it wants in
this area.

We should note, however, that Sir John Laws has interpreted s.2(4) more narrowly as
simply providing a rule of construction for later statutes.

Section 18 of the European Union Act 2011 attempts to clarify the status of the
European Communities Act 1972:

Directly applicable or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in the United
Kingdom only by virtue of that Act or where it is required to be recognised and available
in law by virtue of any other Act.
page 24 University of London

3.8 The Human Rights Act 1998


The HRA was passed under the normal procedures of Parliament for Public General
Acts. The broad effect of the Act was to enable UK courts to enforce rights created
under the European Convention on Human Rights (ECHR) to which the United
Kingdom was a party in 1951. Until the HRA came into force, the rights of UK citizens
under the Convention could only be enforced by going to the European Court of
Human Rights (ECtHR).

We will review the HRA in more detail in Chapters 18–20, but it is important, in the
context of parliamentary supremacy, to be aware of the following key features.

1. A new interpretive duty is applied to all primary and secondary legislation.

2. So far as it is possible to do so, primary legislation and subordinate legislation must


be read and given effect in a way that is compatible with Convention rights: s.3(1).

3. Where it is not possible to read and give effect to subordinate legislation in a way
that is compatible with Convention rights, such legislation may be quashed except
where the parent Act prevents the removal of the incompatibility: s.3(2).

4. Where it is not possible to read and give effect to primary legislation (this includes
Acts but is not limited to them) in a way that is compatible with Convention rights,
the legislation remains in force, but the High Court or appeal courts may make a
‘declaration of incompatibility’. The government can then use ‘fast-track’ measures
in Parliament to remove the incompatibility: s.10.

5. All public authorities, including courts and tribunals, must, when exercising public
functions, comply with Convention rights unless authorised otherwise by primary
legislation: s.6(1).

6. All courts and tribunals must comply with case law from the ECtHR.

7. Ministers promoting Public Bills must issue a statement to Parliament stating


either that the Bill is compatible with the Convention or that it is not and the
government still wishes to proceed.

It is noticeable that the HRA does not distinguish between existing and former Acts.

The declaration of incompatibility is particularly significant in respect of parliamentary


supremacy. Although the form of parliamentary supremacy is preserved, since the
primary legislation remains valid, the ruling of the court has the practical effect that
others affected by it, if it remains unchanged, will take their claims to the ECtHR in
Strasbourg. Effectively the courts may not have the power to strike down an Act of
Parliament, but they can deliver a fatal wound to it, even if Parliament and not the
courts must switch off its life support.

3.9 Summary
1. The basic principle underlying the traditional view of parliamentary supremacy
as set out by Dicey is that Parliament has ‘the right to make and unmake any
law whatsoever; and, further, that no person or body is recognised by the law of
England as having the right to override or set aside the legislation of Parliament’.

2. The courts have been unwilling to challenge the validity of an Act of Parliament
by reference to arguments over procedural irregularities. This is known as the
‘enrolled Bill rule’ and is illustrated by Edinburgh and Dalkeith Rly Co v Wauchope
(1842) and British Railways Board v Pickin (1974).

3. The doctrine of implied repeal deals with the difficulties caused when a later Act
conflicts with an earlier Act but does not expressly repeal it. Under the traditional
approach, exemplified in Ellen Street Estates Ltd v Minister of Health (1934), the later
Act is deemed impliedly to repeal the earlier Act in respect of the incompatibility.
In Thoburn v Sunderland City Council (2002) Laws LJ identified a new approach which
was to be applied to ‘constitutional statutes’. Under this approach constitutional
statutes could only be repealed expressly.
Public law  3  Parliamentary supremacy page 25

4. Under the ‘manner and form’ argument, while Parliament has no limits on the
subject matter on which it can legislate, the manner and form in which it legislates
can be limited. Special procedures, such as a requirement to hold a referendum,
can be laid down and enforced by the courts if they are not followed. Several
Commonwealth cases such as Minister of the Interior v Harris (1952) have been used
to justify this argument.

5. The Parliament Acts 1911 and 1949 set out procedures under which the House of
Lords is unable to prevent the passage of ‘money Bills’ and Bills which have been
approved by the House of Commons in two successive sessions. In Jackson v A-G
(2005), the validity of the Parliament Act 1949 and subsequent Acts passed under
the procedure as primary legislation was affirmed.

6. Some Scots lawyers have argued, following MacCormick v Lord Advocate (1953), that
the principle of parliamentary supremacy does not apply in Scots constitutional
law.

7. European Union Treaties and legislation under s.2 of the European Communities
Act 1972 are recognised under UK law and all Acts are to be construed accordingly.
In Jackson v A-G (2005) Lord Hope stated that the doctrine of the supremacy of
Community law restricts Parliament’s power to legislate (but note that this will
change once the UK leaves the EU).

8. The HRA enabled UK courts to enforce the ECHR. All primary and secondary
legislation must be interpreted in accordance with Convention rights. Subordinate
legislation may be quashed, if it is incompatible. Where an Act is held to be
incompatible, the court will issue a ‘declaration of incompatibility’ whose practical,
though not legal, effect will usually be for the government to amend the legislation
as soon as practical.
page 26 University of London

Notes
4 The rule of law

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4.1 Bingham’s eight ‘sub-rules’ . . . . . . . . . . . . . . . . . . . . . . . . 29

4.2 ‘Content-free’ and ‘content-rich’ interpretations of the rule of law . . . . 31

4.3 Dicey’s description of the rule of law . . . . . . . . . . . . . . . . . . . 32

4.4 Protection of the rule of law by the courts . . . . . . . . . . . . . . . . 32

4.5 Protection of the rule of law by Parliament . . . . . . . . . . . . . . . . 34

4.6 Protection of the rule of law by the Lord Chancellor . . . . . . . . . . . 34

4.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
page 28 University of London

Introduction
Section 1 of the Constitutional Reform Act 2005 states:

This Act does not adversely affect –

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle.

This short section, which was the subject of learned debate in Parliament, leaves
the reader little the wiser as to the question – what is the rule of law? Clearly it is a
principle which pre-dates the 2005 Act and was seen as sufficiently important for
the Lord Chancellor’s role in relation to it to be preserved. In fact, the absence of
any attempt in the Act to define the rule of law reflects the uncertainty which exists
around this rather nebulous concept.

In this chapter we will look first at Lord Bingham’s eight sub-rules and then consider
briefly the distinction between ‘content free’ and ‘content rich’ interpretations of
the rule of law. Dicey’s influential, if flawed, description of the rule of law will then be
reviewed, together with criticisms of his approach.

Finally we will discuss the practical ways in which the rule of law is protected in the
United Kingdom: through the courts, Parliament and the office of Lord Chancellor.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 3: The rule of law.

Further reading
¢¢ Bingham, T. ‘The rule of law’ (2007) CLJ 67.

¢¢ Bingham, T. The rule of law. (London: Penguin, 2010) [ISBN 9780141034539].

¢¢ Craig, P. ‘Formal and substantive conceptions of the rule of law: an analytical


framework’ (1997) Public Law 467–87.

¢¢ Dicey, A.V. Introduction to the study of the law of the constitution. (Indianapolis,
IN: Liberty Fund, 1982) eighth revised edition [ISBN 9780865970038], Part II,
Chapter IV (available in HeinOnline).

¢¢ Jowell, J. ‘The rule of law’, in Jowell, J., D. Oliver and C. O’Cinneide (eds) The
changing constitution.
Public law  4  The rule of law page 29

4.1 Bingham’s eight ‘sub-rules’


Lord Bingham grappled with the challenge of defining the rule of law by breaking it
up into eight ‘sub-rules’. His discussion of these sub-rules has been one of the most
influential modern discussions of the rule of law. The sub-rules are as follows.

1. The law must be accessible and, so far as possible, intelligible, clear and
predictable.

2. Questions of legal right and liability should ordinarily be resolved by application of


the law and not the exercise of discretion.

3. The laws of the land should apply equally to all, save to the extent that objective
differences require differentiation.

4. Ministers and public officers at all levels must exercise the powers conferred on
them in good faith, fairly, for the purpose for which the powers were conferred,
without exceeding the limits of such powers and not unreasonably.

5. The law must afford adequate protection of fundamental rights.

6. Means must be provided for resolving, without prohibitive cost or undue delay,
bona fide civil disputes which the parties themselves are unable to resolve.

7. Adjudicative procedures provided by the state should be fair.

8. The rule of law requires compliance by the state with its obligations in
international law as in national law.

Activity 4.1
On a preliminary reading of Bingham’s eight sub-rules, which, if any, do you think
might be viewed as somewhat controversial and why?
We will now consider a number of issues arising from these sub-rules in the light of the
UK constitution.

4.1.1 Accessibility, clarity and predictability


Why are these requirements important? Bingham gives three reasons: first, so that
we know what we might face a criminal penalty for; second, so we can claim our
rights and understand our obligations; third, because successful conduct of trade and
commerce depends on accessible rules.

A recent example of an
In recent years considerable efforts have been made to enable British citizens to
attempt at consolidation
have access to the ‘raw’ law through government websites such as www.legislation.
can be found in a Law
gov.uk as well as government department websites and the www.gov.uk portal. This
Commission project
represents a significant advance in the accessibility of the law for those members of
proposing reform based on
the public with access to the internet. Groups with little access to the internet lose out
the following principles:
by comparison.
• the laws governing
Clarity is always a difficult challenge for parliamentary draftsmen of statutes and elections should be
statutory instruments. Particular difficulties are generated when areas of law are rationalised into a single,
very controversial politically and subject to frequent legislative change. Criminal consistent legislative
justice has become more confusing in recent years, with Criminal Justice Acts every framework governing all
year and changes introduced before the innovations in the previous Act have been elections, and
• electoral laws should be
implemented. Other areas of law have benefited from considered ‘consolidating’ Acts†,
consistent across all types
often drafted or influenced by the Law Commission. In relation to the development of
of election.
case law, Bingham has highlighted the difficulties of interpretation caused for lawyers
See: www.lawcom.gov.
and their clients in subsequent cases when the Court of Appeal judges or Supreme
uk/project/electoral-
Court justices give separate individual judgments, rather than agreeing to a single
law/#electoral-law-
‘leading’ judgment. Lord Donaldson in Merkur Island Shipping Corpn v Laughton (1983)
consultation-related-
stated:
documents
Absence of clarity is destructive of the rule of law; it is unfair to those who wish to preserve
the rule of law; it encourages those who wish to undermine it.
([1983] 1 All ER 334, p.351)
page 30 University of London

Predictability is a very important aspect of the rule of law. In dictatorships, citizens are
often left uncertain as to whether or not a particular action will be subject to criminal
punishment – the power of the state is enhanced by the unpredictability. Particular
difficulties arise when laws are made to apply retrospectively (to actions which have
already happened). This happened when the War Damage Act 1965 abolished the
right to compensation for damage done during war ‘before or after the passing of
this Act’. Following Article 7 of the ECHR, the courts will interpret legislation under a
presumption that it does not have retrospective effect.

4.1.2 Application of the law equally to all, subject to objective


distinctions
In the criminal law children and those without mental capacity are treated differently
in terms of procedures for investigation and trial as well as in sentencing. Children
under 10 are treated as doli incapax – legally incapable of committing a crime.

4.1.3 Ministers and public officials should act in good faith, fairly, within
their powers and not unreasonably
This is the core of administrative law, which is discussed in detail in Chapters 15–17. The
remedy of judicial review is available to challenge the actions of ministers (including
their role in creating secondary legislation) and other public bodies where they have
acted outside the powers which were given to them (usually by an Act of Parliament),
or acted unfairly or unreasonably. Decision making can be challenged if there is bias or
individuals are not given the right to a fair hearing.

4.1.4 Protection of human rights


The incorporation of the ECHR into UK law by the HRA has had major implications
for the protection of individual rights. We will examine this area in more detail in
Chapters 18–20.

4.1.5 Access to civil justice without excessive cost or delay


Although alternative dispute resolution (ADR) is increasingly popular and encouraged
by government, handling civil court cases is still a core function of the legal system.
In R v Lord Chancellor, ex p Witham (1998) an applicant in receipt of state benefits
successfully challenged, by way of judicial review, an order made by the Lord
Chancellor increasing the costs of writs (claim forms). Laws J stated:

Access to the courts is a constitutional right; it can only be denied by the government if it
persuades Parliament to pass legislation which specifically – in effect by express provision
– permits the executive to turn people away from the court door. That has not been done
in this case.
([1998] QB 575, p.586)

The costs of civil litigation are always controversial and the labour-intensive nature of
the adversarial court system has led to rapidly increasing civil legal aid costs. The Legal
Aid, Sentencing and Punishment of Offenders Act 2012 has introduced ‘damages-based
agreements’, enabling claimants’ lawyers to be paid on the basis of a percentage share of
the damages and has weakened still further the availability of legal aid. The introduction
of the Civil Procedure Rules (CPR) has not led to the savings in costs that were originally
hoped for, although judicial case management under the CPR has reduced delays.

Even more recently the notion of adequate access to justice (i.e. access to the courts
and tribunals and the ability to challenge decisions made about or against them) as a
component part of the rule of law has been highlighted in case law, for example R (on the
application of UNISON) v Lord Chancellor [2017] UKSC 51.
Public law  4  The rule of law page 31

4.2 ‘Content-free’ and ‘content-rich’ interpretations of the rule


of law
The content-free interpretation of the rule of law focuses on the form of the law
and the procedures by which law is made. The legal writer Raz identified eight basic
principles which reflect this approach.

1. All law should be prospective, open and clear.

2. Laws should be relatively stable.

3. The making of laws should be guided by clear rules.

4. The judiciary should be independent.

5. The principles of natural justice should be observed (see the discussion of


administrative law at Section 4.1.3).

6. The courts should be able to review the implementation of other principles.

7. The courts should be easily accessible.

8. The discretion of the police and crime fighting agencies should not pervert the law.

Clearly most people would value these principles and accept that their absence would
damage confidence in the state. Are they enough for a good society? Supporters of the
‘content-free’ interpretation do not deny that the principles should be supplemented
by other values such as rights, justice and democracy but argue that these values
should not be attached to the concept of the rule of law:

The message is therefore that if you wish to argue about the justness of society do so by
all means. If you wish to defend a particular type of individual right then present your
argument...It is however on this view not necessary or desirable to cloak the conclusion
in the mantle of the rule of law, since this will merely reflect the conclusion which has
already been arrived at through reliance on a particular theory of rights or the just society.
(Craig, P. Sixth Report from the House of Commons Select Committee on the Constitution,
HL 151 of 2006–07)

The ‘content-rich’ interpretation is a more complex and, perhaps, idealistic view of the
rule of law. Ronald Dworkin summarised it as:

I shall call the second conception of the rule of law the ‘rights’ conception...It assumes
that citizens have moral rights and duties with respect to one another, and political rights
against the state as a whole. It insists that these moral and political rights be recognised in
positive law, so that they may be enforced upon the demand of individual citizens through
the courts and other judicial institutions of the familiar types, so far as this is practicable.
(A matter of principle. (Boston, MA: Harvard University Press, 1985) [ISBN 9780674554610])

Activity 4.2
Match, so far as you can, Raz’s eight principles to Bingham’s sub-rules in the table
below:

Bingham Raz

In the light of this comparison, do you think that Bingham’s eight sub-rules are
‘content-rich’ or ‘content-free’ interpretations of the rule of law?
page 32 University of London

4.3 Dicey’s description of the rule of law


Traditionally public law textbooks have started their chapters on the rule of law with
Dicey’s fairly succinct three-point description. The danger of this approach is that
students may fail to appreciate how much Dicey’s summary in Introduction to the study
of the law of the constitution reflects the political and legal realities of the late 19th
century, rather than those of the United Kingdom of the 21st century. Nonetheless
the description continues to influence constitutional writers and it is important to
understand the three elements as well as the criticisms of them. He described the rule
of law as follows.

No man is punishable or can be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary Courts of the
land.

Effectively ‘regular’ law was to be applied and not the use of arbitrary or discretionary
powers.

No man is above the law...every man, whatever be his rank or condition, is subject to the
ordinary law of the realm…every official, from the Prime Minister down…is under the
same responsibility for every act done without legal justification as any other citizen…

The general principles of the constitution (as for example the right to personal liberty, or
the right of public meeting) are...the result of judicial decisions determining the rights of
private persons.

In short, he was arguing that the constitution was ‘judge-made’.

4.3.1 Criticisms of Dicey


Sir Ivor Jennings, in The law and the constitution (London: University of London Press,
1933), has criticised Dicey’s assumption that the rule of law was inconsistent with
the use of discretionary powers by the executive. We will see in Chapter 9 how
the complexities of governing a technically sophisticated country, as well as other
constraints such as limited parliamentary time, have led to a great increase in the
use of delegated or secondary legislation, in the form of rules and regulations. The
importance of this legal framework in setting the ground rules for business and
industry, as well as fulfilling other social purposes, such as the protection of the
environment, must be understood.

Jennings also argued strongly that Dicey’s second point ignored the particular
responsibilities public officials held by virtue of their roles. In addition, he ignored the
special immunities certain categories of individuals have, for example children and
foreign diplomats with diplomatic immunity.

Finally, Dicey’s third point completely ignored the role of statute in the constitution.
Even in respect of the examples he gives – personal liberty and the right of public
meeting – there are many statutes giving vital protections and imposing significant
constraints. These include, of course, the HRA.

4.4 Protection of the rule of law by the courts


Before we examine some individual examples of how the courts have dealt with
arguments relating to the rule of law, it is worth recalling some of the basic constraints
under which the system of judge-made law (i.e. the ‘common law’) operate. These
constraints include the fact that the courts are unable to protect rights that have been
recognised previously as important to the rule of law if they are expressly abolished
by an Act of Parliament. An example is the Criminal Evidence (Witness Anonymity)
Act 2008 which removed the common law right of a criminal defendant to know
who was bearing witness against them by replacing it with a regime in which witness
anonymity orders could be used in limited circumstances. The nature of case law is, in
a sense, always erratic and focused on responding to claims by particular individuals
for protection in their particular circumstances. Individual judges in different cases
Public law  4  The rule of law page 33

may show undue deference to government or be unwilling to challenge political and


public pressure. J.A.G. Griffith (The politics of the judiciary) has argued that judges, by
virtue of their background, are:

Necessarily conservative, not liberal and show tenderness towards private property and
dislike of trade unions, strong adherence to the maintenance of order, distaste for minority
opinions, demonstrations and protests and support for government secrecy.

Griffith was writing in 1977, in an era when conflict between trade unions, employers
and the government was widespread in the streets and in the courts. It is arguable
therefore that this sweeping criticism does not reflect the subsequent willingness of
at least some judges, regardless of their personal backgrounds, to risk political and
popular disapproval by protecting liberties in the name of the rule of law.

One of the earliest cases where the courts demonstrated a willingness to challenge the
power of government in this area was Entick v Carrington (1765). A ‘King’s Messenger’
(a government investigating officer) attempted to seize a suspect for seditious libel
under a warrant which gave him sweeping powers to seize papers and books. Lord
Camden highlighted the fact that these powers were not justified by any statute or
common law power.

Dicey’s second proposition, focusing on the personal responsibilities of public officials,


was illustrated in M v Home Office (1994), where an asylum seeker was deported by
the Home Secretary before his application for judicial review had been completed.
Although the applicant was beyond the jurisdiction by this stage, the House of Lords
held that the Home Secretary, in his official capacity, had been guilty of contempt of
court for failing to comply with an order to return the applicant while he was still en
route. Lord Woolf stated that:

The object of the exercise is not so much to punish an individual as to vindicate the rule of
law by a finding of contempt.

Since the terrorist attacks on 11 September 2001 on the USA, one of the main areas
of conflict between the courts and government has been over a relentless tide of
legislation aimed at increasing the powers of the police and state with a view to
minimising the risks of terrorism. In A v Secretary of State for the Home Department
(2005), the powers of the state to detain non-UK nationals without trial under the Anti-
terrorism, Crime and Security Act 2001 were considered. This concerned individuals
who were considered to be a security threat in the United Kingdom, but could not
be deported to their home countries because of the risk that they would face torture
there. The 2001 Act was challenged under the HRA on the grounds of discrimination
under Article 14 of the ECHR, because it only applied to non-UK nationals. The House
of Lords accepted (by 8:1 – Lord Hoffmann dissenting) the right of the government
to conclude that the public emergency justified the detention, but ruled that it was
applied in a discriminatory manner.

The government responded by introducing a ‘control order’ regime under the


Prevention of Terrorism Act 2005 which applied to UK nationals as well as non-UK
nationals. This regime has now been replaced by the Terrorism Prevention and
Investigation Measures Act 2011 which has replaced control orders with ‘terrorism
prevention and investigation measures’ (TPIMs; these are more limited in scope and,
in particular, have a two-year time limit). Some further amendments were made to the
operation of TPIMs in the Counter-Terrorism and Security Act 2015.

Activity 4.3
Find in Westlaw or LexisLibrary R (on the application of Corner House Research) v
Director of the Serious Fraud Office (2008) and answer the following questions.
a. What reason did the Director of the Serious Fraud Office (SFO) give in his press
release for his decision to drop the investigation into alleged bribery?

b. Which two reasons did he state did not lead to the decision?

c. In Lord Bingham’s summary of the decision of the Divisional Court, why was the
alleged threat by Prince Bandar significant?
page 34 University of London

d. Why did Lord Bingham describe the Director as ‘courageous’ for not using the
reason of ‘evidential weakness’ for his decision?

e. The Director of the SFO did not consider whether a decision to drop the
prosecution would affect national security if other countries learned that the
United Kingdom had given in to the threat. Why did Lord Bingham not consider
this important?

f. Do you think that the decision of the House of Lords strengthened or


undermined the rule of law?

4.5 Protection of the rule of law by Parliament


It is important to view the role of Parliament in protecting the rule of law in the light of
our discussion of parliamentary supremacy in Chapter 3. The doctrine of parliamentary
sovereignty gives Parliament the ultimate decision over whether or not an Act of
Parliament that conflicts with the rule of law should be passed. The courts have
only limited powers of constraint. The consequences of a clash between these two
principles were discussed obiter in Jackson v A-G (2005) by Lord Steyn:

In exceptional circumstances involving an attempt to abolish judicial review or the


authority of the courts, [the courts] may have to consider whether this is a constitutional
fundamental which even a complaisant House of Commons cannot abolish.

Lord Hope, in the same case, stated:

It is no longer right to say that [Parliament’s] freedom to legislate admits of no


qualification...the rule of law enforced by the courts is the controlling principle upon
which our constitution is based.
The extreme circumstances suggested by Lord Steyn have not yet arisen and it is
difficult to envisage a government that would be able to win support in the House of
Commons and House of Lords for any attempt to abolish judicial review.

4.6 Protection of the rule of law by the Lord Chancellor


We saw in the Introduction to this chapter that s.1 of the Constitutional Reform Act
2005 explicitly preserved the existing constitutional role of the Lord Chancellor.
Unhelpfully the Act failed to spell out what that role was, although this omission
perhaps reflected the difficulty of defining it. During the debate on the Act, Lord
Falconer commented:

We all agreed that we do not want to change the Lord Chancellor’s existing role in
relation to the rule of law. That role goes further than simply respecting the rule of law in
discharging his ministerial functions. It includes being obliged to speak up in Cabinet or as
a Cabinet Minister against proposals that he believes offend the rule of law. That role does
not require him proactively to police every act of government. The role is not one that is
enforceable in the courts. (Hansard, HL, Vol 667, col 1538 (20 December 2004))

Lord Bingham has argued instead that the Lord Chancellor’s role in protecting the rule
of law would no doubt be susceptible, in principle, to judicial review.

Given that meetings of the cabinet are held in private, the exact role in decision
making of individual Lord Chancellors has been hard to determine and, as a result, the
courts have had no opportunity to consider it.

Activity 4.4
Find s.2 of the Constitutional Reform Act 2005 and list the factors that the Prime
Minister may take into account when appointing a Lord Chancellor.

Activity 4.5
If it were up to you to decide, would you view a legal background as an advantage
or disadvantage for a prospective Lord Chancellor/Secretary of State for Justice?
Explain your answer.
Public law  4  The rule of law page 35

4.7 Summary
1. Lord Bingham described the rule of law by reference to eight ‘sub-rules’.

a. The law must be accessible, clear and predictable.

b. Questions of legal right and liability should normally be dealt with under the
law and not by discretion.

c. The laws of the land should apply equally to all, unless there are objective
differences.

d. Ministers and public officers must act in good faith, fairly, for the purpose
for which the powers were conferred, without exceeding the limits of such
powers and not unreasonably.

e. The law must protect human rights.

f. Genuine civil disputes must be resolved without undue cost or delay.

g. Adjudicative procedures should be fair.

h. International law must be complied with.

2. Accessibility is enhanced by greater public access to ‘raw’ law through websites


such as www.legislation.gov.uk Clarity of statute making is variable, with political
influence sometimes leading to hasty legislation. Predictability is enhanced by the
principle that legislation should not have a retrospective effect.

3. Objective distinctions, which justify the application of law being applied differently,
include the test for criminal responsibility for children and the treatment of
mentally disabled people under the law.

4. The remedy of judicial review is available where ministers fail to act in good faith,
fairly, within their powers or reasonably.

5. The HRA is a key tool for protecting human rights.

6. The Civil Procedure Rules have limited the problem of delay in the civil justice
system, but the withdrawal of civil legal aid is increasing the costs for ordinary
litigants.

7. The ‘content-free’ interpretation of the rule of law, described by Raz, emphasises


the importance of the form of law and its procedures. The ‘content-rich’
interpretation, favoured by Dworkin, attributes morals and values to the rule of
law. Lord Bingham’s eight sub-rules fit best into the ‘content-rich’ interpretation,
although they illustrate the fact that there is overlap between both interpretations.

8. Dicey’s three-part definition of the rule of law has been very influential, although it
is now challenged on a number of grounds. It is as follows:

a. No one is to be punished or suffer loss except for a distinct breach of law


established in the ordinary legal manner before the ordinary courts of the land.
Arbitrary or discretionary powers are to be excluded.

b. No one is above the law. Everyone is subject to the ordinary law of the realm.
Every official, from the Prime Minister down, is under the same responsibility
for every act done without legal justification as for any other citizen.

c. The general principles of the constitution are the result of judicial decisions
determining the rights of private persons.

9. Critics of Dicey, such as Jennings, have pointed to the widespread use of


discretionary powers in the modern UK constitution through which vital and
complex secondary legislation is passed. In addition, the fact that public officials
are subject to particular legal constraints due to their office has been highlighted.
Finally, the importance of statute (e.g. the HRA) in protecting the rights of
individuals is completely ignored in Dicey’s summary.
page 36 University of London

10. Protection of the rule of law by the courts has been erratic since, by its nature,
issues are only dealt with when an individual chooses to take them to court.
The social background of the judges has been felt by some critics (e.g. Griffith)
to encourage an excessively conservative and cautious approach. Cases such
as Entick v Carrington (1765) and M v Home Office (1994) have demonstrated the
courts’ willingness, in some circumstances, to challenge the power of government
in order to protect personal liberties. The clash between the protection of civil
liberties and the determination of the government to impose greater restrictions
in the name of preventing terrorism has led to many cases. In A v Secretary of State
for the Home Department (2005) the House of Lords accepted the use of control
orders, but required discrimination against non-UK nationals suspected of offences
to be removed. Control orders have since been replaced by terrorism prevention
and investigation measures with a more limited scope. In R (on the application of
Corner House Research) v Director of the Serious Fraud Office (2008), the House of
Lords refused to grant judicial review where the DPP dropped a prosecution of
an arms company for corruption solely on the grounds that national security was
threatened.

11. Protection of the rule of law by Parliament must be considered in the light of the
doctrine of parliamentary supremacy. In Jackson v A-G (2005), Lords Steyn and Hope
speculated obiter about potential (extreme) circumstances in which the rule of law
would be seen by the courts as justified in striking down Acts of Parliament that
removed fundamental rights.

12. The role of the Lord Chancellor in protecting the rule of law was explicitly
preserved in s.1 of the Constitutional Reform Act 2005. Although not defined in
the 2005 Act, the role has been described as to speak up in cabinet and Parliament
against proposals that might damage the rule of law. The first non-lawyer Lord
Chancellor in recent times, Chris Grayling, was appointed in 2012, followed by the
appointment of the Rt Hon Michael Gove MP in 2015 and then the Rt Hon Elizabeth
Truss MP in July 2016. The Rt Hon David Lidington MP – appointed in July 2017 – was
the fourth consecutive non-lawyer to hold the position. In January 2018 the Rt Hon
David Gauke MP, a former solicitor, was appointed as Lord Chancellor, bucking this
trend.
5 Limited government and the separation of powers

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

5.1 Montesquieu and L’esprit des lois . . . . . . . . . . . . . . . . . . . . . 39

5.2 Functions of the executive, legislature and judiciary in the


United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5.3 Reasons for the separation of powers . . . . . . . . . . . . . . . . . . 41

5.4 Separation of powers between the Crown and Parliament . . . . . . . . 42

5.5 The judicial approach to the separation of powers . . . . . . . . . . . . 44

5.6 Interactions between Parliament, the government and the judiciary . . . 45

5.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
page 38 University of London

Introduction
In this chapter, we consider another fundamental constitutional concept: the
separation of powers. The essence of this doctrine is a distinction that has been
made between functions of the state and the personnel responsible for the functions
dealing with the execution of power (the executive), debating and making laws (the
legislature) and judging of individual cases according to the law (the judiciary). One
way to visualise these aspects of the state is as a three-legged stool, with each element
of the constitution being vital for the stability and functioning of the state as a whole.

UK Constitution

Judic
tive

Legislature
Execu

iary

Figure 5.1
We will consider the idealised, but highly influential, description of the separation of
powers in Montesquieu’s 18th-century text L’esprit des lois (The spirit of the laws) and
then review the functions of the three branches of the state in the United Kingdom,
looking at the institutions and their personnel. Different reasons for the separation
are then discussed, including the defence of liberty and efficiency. We will then
discuss an alternative description of the separation of powers between the Crown and
Parliament in the United Kingdom and review some judicial analysis of the separation
of powers.

Finally we will consider the reality of interactions between the different elements.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 4: Separating and balancing powers.

Further reading
¢¢ Barendt, E. ‘Separation of powers and constitutional government’ (1995) Public
Law 599 (this article was written long before recent constitutional reforms, but
remains a worthwhile read).

¢¢ Leyland, P. The constitution of the United Kingdom, Chapter 3: Constitutional


principles.

¢¢ Munro, C. Studies in constitutional law. (Oxford: Oxford University Press, 1999)


second edition [ISBN 9780406981431], Chapter 9 (like the Barendt piece, it is still
worth reading).

¢¢ Woodhouse, D. ‘The Constitutional Reform Act 2005 – defending judicial


independence the English way’ (2007) 5 Int’l J Const L 153.
Public law  5  Limited government and the separation of powers page 39

5.1 Montesquieu and L’esprit des lois


In the years leading up to the French Revolution in 1792 there was considerable
intellectual debate in France about how the state should be governed, encouraged by
the wide recognition of the weaknesses of the rigid and despotic monarchical system
in place. Baron de Montesquieu was one of the most creative thinkers and his ideas
were significantly influenced by his visit to England between 1728 and 1731. L’esprit des
lois (1748) was a text that dealt with many aspects of law and government, but one
section in particular has been particularly influential among academic writers and the
draftsmen of the US constitution.

When legislative power is united with executive power in a single person or in a single
body of the magistracy, there is no liberty, because one can fear that the same monarch or
senate that makes tyrannical laws will execute them tyrannically.

Nor is there liberty if the power of judging is not separate from legislative power and from
executive power. If it were joined to legislative power, the power over the life and liberty
of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to
executive power, the judge could have the force of an oppressor.

All would be lost if the same man or the same body of principal men, either of nobles, or
of the people, exercised these three powers: that of making the laws, that of executing
public resolutions, and that of judging crimes or the disputes of individuals.
(Book XI , Chapter VI, p.181)

Although this quote is found in the section of the book headed ‘On the laws of
England’, it is vital to note that its symmetrical and tidy description did not reflect the
messy reality of the 18th-century UK constitution. As we will see in this chapter, it does
not fit the modern UK constitution either, although it is a helpful starting point for
analysing the fuzzy and overlapping elements of the constitution.

Note Montesquieu’s recurring theme justifying why the separation of powers is


important: without it, liberty will be replaced by tyranny. As we review the working
of the different elements of the UK constitution, it is important to consider critically
whether or not the overlapping elements, which would make Montesquieu shudder,
really do undermine liberty.

5.2 Functions of the executive, legislature and judiciary in the


United Kingdom
At this stage it is helpful to look at how these functions apply to the role of the state in
government and law:

uu legislative – making of binding rules which apply generally (not merely to particular
individuals)

uu executive – developing national policy, administration, foreign affairs, declaration


and conduct of wars

uu judicial – applying the law in criminal cases to individuals and resolving civil
disputes according to law.

In the UK constitution, the legislature is a function which is dealt with primarily by the
Westminster Parliament, consisting of the House of Commons and House of Lords.
Other bodies also carry out this function, including the Scottish Parliament, the Welsh
Assembly and local councils.

The executive function is carried out primarily by the UK government, consisting of


government ministers, led by the Prime Minister, acting in the name of the head of
state, the monarch. Note that the Scottish government, Welsh Assembly government
and local councils (to a much more limited degree) also have powers to develop policy
as well as administrative functions.
page 40 University of London

The judicial function is primarily carried out by a network of courts organised in


a hierarchy which has its own system of checks and balances through the system
of appeals. At the head of the system is the Supreme Court. Note the existence of
a system of tribunals, which carry out many judicial or quasi-judicial functions in
relation to disputes relating to employment matters, welfare benefits, immigration
rights, etc. These are the responsibility of the Tribunals Service.

In a tidy constitution, which would be acceptable to Montesquieu, the institutions


exercising the different functions and the individuals who staff those institutions
would be completely separate and would not overlap. A diagrammatic representation
would be as follows:

A - Executive B - Legislature

C - Judiciary

Figure 5.2

A more realistic visual image is as follows:

A - Executive B - Legislature

C - Judiciary

Figure 5.3

Activity 5.1
Consider the following activities and institutions and insert them into the
appropriate circles or overlaps between the circles.
a. The Employment Appeals Tribunal – this hears appeals from Employment
Tribunals relating to employment disputes.

b. North Hertfordshire District Council – this elected body creates by-laws, makes
decisions on planning applications and provides public services (including
emptying the author’s dustbins).
Public law  5  Limited government and the separation of powers page 41

c. The Director of Public Prosecutions – this person is responsible for overseeing all
public prosecutions and is responsible for the Crown Prosecution Service.

d. The Speaker of the House of Commons – this person chairs debates in the House
of Commons and is its impartial chief officer.

We can see already that certain bodies and individuals carry out more than one
function and this is not unusual, even under constitutions where the separation of
powers doctrine is applied most rigorously such as the USA. The most important
example of such an overlap can be found at the heart of the state: all members of the
government (i.e. the executive) must also be members of the House of Commons or
House of Lords. We will look later at how this breach of the doctrine can be seen as
helping to provide checks on the power of the executive through direct accountability
to Parliament.

5.3 Reasons for the separation of powers


There are a number of reasons why the concept of the separation of powers has been
valued by academics, politicians and judges.

5.3.1 Template for designing a new constitution


When designing a new constitution, the exercise of separating out executive,
legislative and judicial functions has proved to be an effective way of distributing
power and introducing appropriate checks and balances which help to preserve
liberty.

Activity 5.2
Consider the draft Transitional Constitution of the Republic of South Sudan, the
most recent member of the United Nations: www.sudantribune.com/IMG/pdf/
The_Draft_Transitional_Constitution_of_the_ROSS2-2.pdf
Find the section in the constitution which summarises the separate elements of the
national government. What are the organs of the national government?

5.3.2 Preservation of liberty


We have already seen how this was Montesquieu’s key objective and other academic
writers have also argued that separating the different types of power in the state, or
at least ensuring that there is an effective system of checks and balances, limits the
scope for abuse of power and ultimately oppression. This argument was developed by
Eric Barendt in ‘Separation of powers and constitutional government’ (1995) Public Law
599:

Its primary purpose…is the prevention of arbitrary government, or tyranny, which may
arise from the concentration of power. The allocation of functions between three, or
perhaps more, branches of government is only a means to achieve that end. It does not
matter, therefore, whether powers are always allocated precisely to the most appropriate
institution – although an insensitive allocation would probably lead to incompetent
government.
(pp.603–04)

Barendt distinguishes the pure theory, which rigidly insists on each function of the
state being discharged by a separate institution, from a more pragmatic approach
which seeks to avoid excessive concentrations of power. Where, for example,
a government body such as the Competition Commission has administrative/
executive responsibilities as well as a quasi-judicial role, liberty will not necessarily be
undermined if it can be shown that the government does not have the sole right to
hire and fire its staff or instruct it as to which investigations it should carry out.
page 42 University of London

Activity 5.3
Review the Competition and Markets Authority website: www.gov.uk/government/
organisations/competition-and-markets-authority/about and answer the following
questions.
a. What is the objective of the Competition and Markets Authority?

b. The Competition and Markets Authority has taken on the function of which
other (now obsolete) bodies?

5.3.3 Efficiency
A contrasting reason for valuing the concept of the separation of powers is that it
provides for efficient government. Efficiency is, of course, a slippery concept. Many
politicians see efficient government as implying speedy and decisive decision making.
If the decision is taken speedily but without sufficient accurate information, the
results may be catastrophic. If there has been no effort to consult with individuals and
organisations who will be affected by the decision, it will be far harder to gain their
cooperation and the policy may fail as a result. Conversely, if a policy decision is seen
by the public to be made under the influence of one pressure group, it may lose its
democratic legitimacy and become ineffective.

N.W. Barber in ‘Prelude to the separation of powers’ (2001) 60(1) CLJ 59 states:

Separation of powers encourages us to consider various interconnected structural factors


that affect the competence of institutions in the performance of their tasks. First, the
composition and skills of an institution must be examined: the knowledge and experience
of the actors within it. Secondly, the scope of the institution’s information-gathering
powers may be of interest; some bodies are better than others at gathering different
types of information. Thirdly, the manner of the institution’s decision-making process may
be significant; some issues may lend themselves well to expert decision-making, others
will be better allocated to amateur processes which have the virtues of openness and
inclusivity. This point leads on to a fourth consideration: the vulnerability of the institution
to outside pressures. Whether this is considered an advantage or a danger will depend
both on the particular issue before the decision-maker and on our understanding of the
nature and importance of citizens’ participation in decision-making.

Activity 5.4
Read the Standard Note SN/PC/06053 at: www.parliament.uk/briefing-papers/
SN06053.pdf and answer the following questions.
a. Which example did Gordon Brown use to illustrate the efficiency of the British
system over the US system?

b. What side effect of the planned reduction in the number of MPs in the House of
Commons is s.14 of the Parliamentary Voting System and Constituencies Act 2011
designed to address? Is it likely to be effective?

c. What is the only mechanism by which a High Court judge may be removed from
office?

d. What is the sub judice rule and why is it important?

e. What are super injunctions and why are they controversial?

5.4 Separation of powers between the Crown and Parliament


The British Civil War in the 17th century had a number of complex causes. The
key participants were Charles I, the Leader of the royalists, and the Westminster
Parliament. Ultimately King Charles was defeated and executed in 1649. Although
his son Charles II was restored to the throne in 1660, the power and authority of
Parliament remained highly significant, and its independence was ensured in 1689
when the Dutch king William of Orange was given the throne with the support of
Parliament.
Public law  5  Limited government and the separation of powers page 43

This bipolar aspect of 17th-century politics has been taken up by Adam Tomkins (Public
law, 2003) who has argued that it remains a better description of the 21st-century UK
constitution than Montesquieu’s executive, legislature and judiciary approach.

Instead of the three-legged stool (see the Introduction to this chapter), a visual image
which illustrates Tomkins’ approach is of two planks leaning against each other for
mutual support:

Parl
n
Crow

iam
ent

Figure 5.4
Tomkins argues:

The separation of power English-style, it will be argued, is and remains a confrontational,


bi-partisan, bi-polar separation, between the only two powers the constitution has
ever recognised as enjoying any degree of sovereign authority, namely the Crown, and
Parliament. Every constitutional actor falls on one side or the other of this great divide, in
that all constitutional actors ultimately draw their power from either the Crown or from
Parliament.

Clearly this is a quite radically different approach from the tripartite view of
Montesquieu and the other writers we have discussed. Tomkins highlights several
features of the constitution in support. The process of approving an Act of Parliament
includes, at the very end, obtaining the Royal Assent. Thus an Act is:

the legal moment when the two sovereign authorities of England come together and
agree: Parliament on the one hand, and the Crown on the other.

The argument that the signature of the Queen on an Act of Parliament represents
‘agreement’ on the part of the Crown may, of course, be challenged by the reality of
the constitutional convention that requires the Queen to sign all Acts of Parliament
regardless of her personal views and the views of her ministers (described as ‘ministers
of the Crown’).

Tomkins also discusses the status of ministers of the Crown who must swear an oath
of allegiance to the Crown and can exercise considerable royal prerogative power
on behalf of the Crown. Their power is limited by their accountability to Parliament,
which is exercised because they are also required to be members of Parliament and
therefore to respond to questioning in debates.

The obvious question which arises from Tomkins’ argument is: how do the courts fit
into this picture? Tomkins states, controversially, that:

The courts are in some sense part of, or dependent upon, the Crown, and are not
independent of it.
In essence Tomkins is arguing that ultimately the judiciary derives its constitutional
authority from that of the Crown. Although there are some significant practical
restraints on ministers of the Crown interfering with the judiciary, for example, the
page 44 University of London

independent Judicial Appointments Commission and the requirement that Parliament


approve the removal of senior judges, there are strong formal and symbolic ties
between the Crown and the judiciary. He highlights the royal coat of arms which hangs
behind the judges in courtrooms and the judicial oath/affirmation that judges are
required to swear.

Activity 5.5
Look at the alternative versions of the oaths/affirmations that new judges
are required to make at: www.judiciary.gov.uk/about-the-judiciary/
the-judiciary-the-government-and-the-constitution/oaths/
Do the alternatives available include an option for judges with republican opinions
(opposing the continuation of the monarchy)? Does your answer strengthen
Tomkins’ case?

Activity 5.6
Listen to the audio presentation ‘What does “the Crown” mean in the UK
constitution?’ on the VLE.
No feedback provided.
For a wider discussion of the use of oaths of allegiance to the Queen see the website of
the republican campaigning group Republic:
www.republic.org.uk/what-we-want

5.5 The judicial approach to the separation of powers


Despite the doubts and ambiguities that have been identified about the separation of
powers so far, it is noticeable how deeply ingrained the belief in this is to be found in
judicial statements.

In Duport Steels Ltd v Sirs (1980) Lord Diplock stated:

At a time when more and more cases involve the application of legislation which gives
effect to policies that are the subject of bitter public and parliamentary controversy, it
cannot be too strongly emphasised that the British constitution, though largely unwritten,
is firmly based on the separation of powers; Parliament makes the laws, the judiciary
interpret them.
(1980, IRLR 116, p.117)

Lord Mustill in his dissenting judgment in R v Secretary of State for the Home
Department, ex p Fire Brigades Union (1995) was equally emphatic and, unlike Lord
Diplock (above), highlighted the tripartite approach:

It is a feature of the peculiarly British conception of the separation of powers that


Parliament, the executive and the courts have each their distinct and largely exclusive
domain. Parliament has a legally unchallengeable right to make whatever laws it thinks
right. The executive carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.
([1995] 2 AC 513, p.567)

More recently, in Baron Mereworth v Ministry of Justice (2011), Lewison J stated:

The separation of powers, although not quite in the pure form that Montesquieu
imagined, has always been part of our constitution.
([2012] Ch 325, p.329)

The view of the judiciary as to where the boundary should lie between the roles of the
executive and the judiciary is illustrated in R (on the Application of Wheeler) v Office of
the Prime Minister (2008). Here the decision of the Prime Minister, Tony Blair, to break
his promise to hold a referendum on a planned European Treaty was challenged. The
government argued that the final treaty, the Lisbon Treaty, was significantly different
from the original version to which the promise had related. The court rejected the
claimant’s argument that an ‘implied representation’ had been made that there
would be a referendum on any treaty that had an equivalent effect. Richards LJ held
Public law  5  Limited government and the separation of powers page 45

that the assessment of the differences between the initial treaty and the Lisbon Treaty
depended on:

a political perspective and political judgment. In addition the subject-matter, nature and
context of a promise of this kind place it in the realm of politics, not of the courts, and the
question of whether the government should be held to such a promise is a political rather
than a legal matter.
([2008] EWHC 1409 (Admin))

Activity 5.7
Consider what the implications would have been for government if the claimant in
R (on the Application of Wheeler) v Office of the Prime Minister (2008) had succeeded.
Should politicians who break ‘political’ promises be accountable to the courts, or is
it enough that they are accountable to the electorate in elections?

5.6 Interactions between Parliament, the government and the


judiciary
As we have already found with other constitutional principles, one of the best ways of
judging the true significance of the separation of powers in the UK constitution is by
looking at interactions between the different elements in practice.

5.6.1 Interactions between Parliament and the judiciary

A - Executive

B - Legislature

C - Judiciary

Figure 5.5

Can MPs also serve as judges?


Schedule 1 to the House of Commons Disqualification Act 1975 and s.137 of the
Constitutional Reform Act 2005 provide that full-time members of the judiciary are not
eligible to serve as MPs or peers; similarly MPs and peers are not able to act as full-time
judges. MPs and peers are able to act as part-time judges and (in England and Wales)
they are able to act as lay magistrates.

Activity 5.8
Find and read the Lay Magistrates (Eligibility) (Northern Ireland) Order 2004 then
answer the following questions.
a. Which legislators are not permitted to act as a lay magistrate in Northern Ireland?

b. Do you think the approach to eligibility for acting as a lay magistrate is more
consistent with the separation of powers doctrine than the approach in England
and Wales? If so, is this a good thing?
page 46 University of London

Can judges participate in the legislative process?


Until 2009 the most senior judges, in particular the Lords of Appeal in Ordinary, were
also entitled to sit and vote on new legislation in the House of Lords, although they
rarely did so in practice. The reasons for this reluctance are evident when we consider
Jackson v A-G (2005), in which the Hunting Bill was considered. Lords Scott of Foscote
and Hoffmann were unable to act as judges in this case because they had voted in
favour of the Bill.

A key issue when a judge has been involved in the legislative process is whether they
can subsequently be an impartial judge in a civil or criminal case relating to a piece of
legislation which was the product of that process.

Activity 5.9
Find McGonnell v United Kingdom (2000) on LexisLibrary or Westlaw and answer the
following questions.
a. What was the subject matter of the original dispute in the Channel Island of
Guernsey?

b. What was the involvement of the deputy-bailiff of Guernsey in the legislative


process when the Detailed Development Plan No 6 (DDP6) was being
considered? Why was this significant when the appeal against the planning
decision made under DDP6 was heard?

c. Which article of the European Convention on Human Rights (ECHR) was


considered in this case?

d. Who won the case and why?

Judges do also make suggestions for legislative reform outside the framework of
Parliament. Sometimes they are appointed as chairs of inquiries and their reports
contain specific proposals, which may or may not be adopted. Where they have
particular expertise and knowledge, such as in the administration of civil justice, their
views carry particular weight. An example is Lord Justice Jackson’s detailed report on
civil litigation costs, part of which was adopted by the government in the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 – see the explanatory note to the
Act at: www.legislation.gov.uk/ukpga/2012/10/notes/division/3/2

Parliamentary privilege
This is a basic foundation block of a parliamentary democracy, and is summarised by
Article 9 of the Bill of Rights 1689:

That the freedom of speech and debates or proceedings in Parliament ought not to be
impeached or questioned in any court or place out of Parliament.

The House of Lords Constitutional Committee, Parliamentary Standards Bill: implications


for Parliament and the courts, 18th Report states:

For sound constitutional reasons, the courts have historically respected the right of
Parliament to govern itself and have refused to be drawn into any disputes that may
arise about things said or done in Parliament. This ensures the freedom of members and
witnesses giving evidence to parliamentary committees to speak openly without concern
that what they say or do during ‘proceedings in Parliament’ may subsequently be used in
court proceedings.

The major exception to this rule was set out in controversial House of Lords case Pepper
(Inspector of Taxes) v Hart (1993) under which it was established that evidence may be
used in court from Hansard (the parliamentary record), in which the minister introducing
the relevant Bill explains what the relevant section is intended to achieve. The relevant
section must be ambiguous and the minister’s statement must also be clear.

The reasoning of the House of Lords was that the court would simply be giving effect
to the intention of Parliament and not breaching Article 9. The difficulty with this logic
is that the intention of the minister is not necessarily that of Parliament.
Public law  5  Limited government and the separation of powers page 47

A related development occurred with the recent HS2 case (R (HS2 Action Alliance Ltd)
v SoS for Transport [2014] UKSC 3) in the Supreme Court. Here one possible question
for the court was ‘whether the hybrid bill procedure [under which Parliament would
grant permission for HS2], as currently proposed, will comply with the procedural
requirements of’ the relevant EU Directive and also ‘whether it is appropriate for the
court to consider the compatibility of the Parliamentary procedure at the present
stage’ [56]. The court decided that it was appropriate to consider at that stage rather
than waiting until legislation may have been enacted. This raised a possible concern of
opening up the Parliamentary process to scrutiny, something that Article 9 of the Bill
of Rights 1689 says is beyond question in court (Pickin v British Railways Board [1974] AC
765). However, this issue did not arise in the end as the Supreme Court concluded that
the level of investigation into the parliamentary process advocated by the applicants
was not in fact required under the EU Directive. The Court explained that it could
consider the effect of the Directive without affecting or encroaching upon any of the
powers of Parliament [93]–[95].

For more detail please see the following related blogpost:

uu http://ukhumanrightsblog.com/2014/01/22/
high-speed-rail-parliament-and-the-eu-courts/

Discussion of judges and judgments in Parliament


The sub judice rule requires that MPs should not discuss pending cases in Parliament.
The mechanism for enforcing this rule is the House of Commons Standing Order 42A
which states:

The Speaker, or the chairman, may direct any Member who breaches the terms of the sub
judice resolution of the House to resume his seat.

There is an obvious risk that an MP’s comments, which are likely to be reported widely
in the media, might prejudice a fair trial. The Speaker and Lord Speaker (in the House
of Lords) do have the discretion to waive this rule in the national interest. Further
detail of the application of this standing order is given in the parliamentary Companion
to Standing Orders in Chapter 4: Conduct in the House: www.publications.parliament.
uk/pa/ld/ldcomp/compso2010/ldctso02.htm

5.6.2 Interactions between the government and the judiciary

A - Executive

B - Legislature

C - Judiciary

Figure 5.6
The statutory duty of ministers to uphold judicial independence and the particular
role of the Lord Chancellor in this duty are discussed in Chapter 14.
page 48 University of London

It is interesting to consider how the role of Police and Crime Commissioners is affected
by the separation of powers doctrine. Police and Crime Commissioners were first
elected in November 2012 with the responsibility for deciding on local police force
priorities in England (outside London) and Wales, setting budgets and holding chief
constables to account, with the ultimate power to dismiss them. These responsibilities
clearly place them as part of the executive under the separation of powers doctrine.

5.6.3 The role of the government in Parliament

A - Executive

B - Legislature

C - Judiciary

Figure 5.7
As we have already seen, ministers in government are required to be members of
Parliament in order to be held to account. The concept of accountability will, of
course, only have real practical force if those to whom they are accountable have
sufficient power and authority to expose mistakes and poor policy, and to reject
bad proposed laws. We have already seen how the ‘payroll vote’ of ministers and
junior ministers often makes this process of accountability difficult, especially
where a government has a large majority in the House of Commons. The limited
power of backbench MPs to initiate Private Members’ Bills and bring them into law
illustrates this weakness. We will examine further the dominant roles of the executive
(government and civil service) in making statutes and secondary legislation in
Chapters 8 and 9.

Activity 5.10
Read the House of Commons Library Briefing Paper 03378, Limitations on the
number of ministers (7 October 2016) on the Parliament website at:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03378
Which of the arguments in favour of reducing the number of ministers and
parliamentary private secretaries do you think are most convincing and why?

5.7 Summary
1. In his book L’esprit des lois, Montesquieu introduced the tripartite theory of the
separation of powers whereby the executive, legislature and judiciary consisted of
different groups of people. The key reason for this division is the preservation
of liberty.

2. The basic role of the legislature is to make binding laws that apply generally to all
individuals and organisations.
Public law  5  Limited government and the separation of powers page 49

3. In the United Kingdom the executive consists of government ministers led by the
Prime Minister in the name of the Crown. Other elements of the executive include
the Scottish Parliament, Welsh and Northern Irish Assemblies and local councils (to
a limited degree).

4. The judicial function in the United Kingdom is carried out by the court system
which has a formal appeal system. Tribunals also carry out many judicial functions
in a wide range of disputes, for example Employment Tribunals.

5. One of the features of the UK constitution is the extent to which individuals and
organisations have overlapping powers and responsibilities. Local councils can
validly be categorised as having (limited) executive, legislative and judicial powers.

6. There are a number of reasons why the doctrine of the separation of powers is
considered to be a useful tool for constitutional lawyers. Although it causes some
difficulties when applied to the UK constitution, it provides a useful framework
when designing a new written constitution. More crucially in the UK context,
writers such as Barendt have focused on its role in the preservation of liberty.

7. Efficiency has been emphasised as a key advantage of the doctrine by Barber in


a more sophisticated analysis of the knowledge and skills of an institution, its
information-gathering powers and its decision-making processes.

8. An alternative view of the separation of powers is bipolar: the Crown and


Parliament. Tomkins has argued that the conflict between Charles I and Parliament
in the 17th-century civil wars is still the model for the only two powers ever
recognised by the British constitution. He argues, controversially, that the judicial
function is subsumed into the Crown.

9. In a number of significant cases judges have generally shown a strong attachment


to the doctrine of the separation of powers, including Lord Diplock in Duport Steels
Ltd v Sirs (1980) and Lord Mustill in R v Secretary of State for the Home Department ex
p Fire Brigades Union (1995).

10. Despite the views of Tomkins, there is quite a lot of evidence of a practical
separation of powers between the legislature (particularly the Westminster
Parliament) and the judiciary. MPs are not able to serve as judges, although they
may act as lay magistrates. The introduction of the Supreme Court has led to the
ending of the practice whereby Lords of Appeal in Ordinary could also participate
in the creation of legislation as members of the House of Lords. Subject to the sub
judice rule, parliamentary privilege provides a vital safeguard to protect politicians’
freedom to speak freely in Parliament without fear of the courts.

11. The relationship between the government and the judiciary has traditionally
formed an overlap in the role of the Lord Chancellor. There is a continuing
responsibility for the Lord Chancellor to preserve the independence of the
judiciary.

12. The overlap between the government and Parliament is much greater in practice
since government ministers make up such a large proportion of the House of
Commons. Their membership of Parliament is intended to make them accountable
to MPs as a whole.
page 50 University of London

Notes
6 Ministerial accountability

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

6.1 Legitimacy and accountability . . . . . . . . . . . . . . . . . . . . . . 53

6.2 The role of the monarch . . . . . . . . . . . . . . . . . . . . . . . . . 53

6.3 The role of the Prime Minister . . . . . . . . . . . . . . . . . . . . . . 55

6.4 The role of ministers and the cabinet . . . . . . . . . . . . . . . . . . . 58

6.5 Ministerial accountability and the civil service . . . . . . . . . . . . . . 64

6.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
page 52 University of London

Introduction
In this chapter we will consider how the concepts of legitimacy and accountability
relate, before examining the roles and accountability of the monarch and the
Prime Minister. The role of ministers in cabinet will be examined, as well as their
accountability to Parliament through the doctrines of individual and ministerial
accountability. Finally we will review the role of civil servants and the extent to which
there is still ministerial accountability for their actions.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 7: Government and accountability.

Further reading
¢¢ Tomkins, A. Public law, Chapter 5: Political accountability.
Public law  6  Ministerial accountability page 53

6.1 Legitimacy and accountability


Before we consider the roles of the monarch, the Prime Minister and other ministers
and the civil service, it is useful to look at the concepts of legitimacy and accountability.
Legitimacy, in the context of government, implies a general degree of respect and
confidence in public authorities, without necessarily accepting every decision.

Andrew Le Sueur has described the concept as follows.

Conditions of legitimacy exist if, for good reason, people have confidence in
administrative processes and respect and accept decisions of public authorities, even
though they may disagree with some individual determinations.
(in Ruffert, M. (ed.) Legitimacy in European administrative law (2011))

Assessing whether an office or government institution is legitimate according to


this definition will, inevitably, involve some subjective judgments. In every society,
including the United Kingdom, most of the population will disagree with at least
some of the decisions of the government, even if they voted for them. Nonetheless,
at least in general elections for the Westminster Parliament, the majority of adults
still feel sufficiently motivated to vote for their MPs and next government. Instances
of widespread mass civil disobedience in response to government actions are rare,
although occasionally public anger leads to action which forces changes in policy.

Activity 6.1
Consider this 25 March 2010 report ‘The battle of Trafalgar Square: The poll tax riots
revisited’ (Graham, D.) on the website of the Independent recalling the 1990 ‘poll
tax’ riots: www.independent.co.uk/news/uk/politics/the-battle-of-trafalgar-square-
the-poll-tax-riots-revisited-1926873.html
Do the riots and the comments of participants seem to you to reflect a loss of
legitimacy by the Conservative government and, perhaps, the police? Do you think
it was merely criminality?
Accountability is an important aspect of legitimacy. It requires public authorities to
explain and justify their actions. As well as this scrutiny, sanctions such as resignation
from office or official censure may be applied. Bear this principle in mind as we look at
the accountability of the key figures in the executive, particularly the ministers.

Activity 6.2
The voter turnout for the Police and Crime Commissioner (PCC) elections in November
2012 was 15.1 per cent. What do you think this means for the PCCs in terms of legitimacy?
No feedback provided.
It is interesting to note that turnout for the second PCC elections in May 2016 was
higher, at 27.3 per cent. In many areas on this occasion the PCC elections were
combined with other local elections, which arguably contributed to the increased
turnout.

6.2 The role of the monarch


The United Kingdom is commonly described as a constitutional monarchy. The symbols of
the Queen, the head of state, are pervasive, with her image appearing on coins and stamps
and her initials (or those of her predecessors) appearing on letter boxes belonging to
the Royal Mail. A constitutional monarchy can be defined as a democracy whose head of
state is selected under a hereditary principle rather than by direct or indirect election. The
monarch, currently Queen Elizabeth II, has extremely limited freedom of action in relation
to constitutional affairs and must act in accordance with the advice of her ministers.

The Queen has a number of key ceremonial and constitutional duties.

uu Appointing the Prime Minister in accordance with convention.

uu Opening each session of Parliament at which she reads the ‘Queen’s speech’ – written
by the Prime Minister – setting out the programme of legislation for that session.
page 54 University of London

uu Where an early general election is to be ordered, under the Fixed-term Parliaments Act
2011, the Queen will set the date by proclamation on the advice of the Prime Minister.

uu The Queen gives formal approval in the form of the Royal Assent to each Act of
Parliament once it has been approved by the Houses of Commons and Lords.

uu The Queen also appoints the First Minister of Scotland and the First Minister of
Wales in accordance with the Scotland Act 1998 and the Government of Wales Act
1998 and subsequent legislation.

uu The Queen has an important symbolic international role as head of the Commonwealth.
(although the position of Head of the Commonwealth is not actually hereditary.
See for recent discussions on succession: www.telegraph.co.uk/politics/2018/02/13/
prince-charles-right-head-commonwealth-decided-53-country-leaders).

The legitimacy of the monarch was a key issue in the 17th century. Charles I strongly
believed that his legitimacy and right to rule was given to him by God. This was
described as the ‘divine right of kings’. His opponents in Parliament challenged
this concept but claimed, initially at least, to be fighting for ‘king and Parliament’.
Ultimately the Bill of Rights 1689 and the Act of Settlement 1700 set a framework for
the relationship between the monarch and Parliament. This transferred real power to
Parliament, leaving the monarch with a formal and ceremonial role only.

In the 21st century, the legitimacy of the monarchy seems to rest on historical
continuity, affection for the Queen as a person and, perhaps, a belief that the main
alternative – a directly elected president of a republic – would be worse.

An important aspect of accountability is openness. The special status of the Queen


and, particularly, Prince Charles (her eldest son and heir) have been criticised in recent
years on a number of grounds.

Activity 6.3
a. Read the 31 August 2012 report in the Guardian ‘Secret royal veto powers over
new laws to be exposed’ (Booth, R.) about freedom of information requests
relating to Prince Charles and the Queen at: www.guardian.co.uk/uk/2012/aug/31/
secret-royal-veto-powers-exposed

Which two freedom of information requests are discussed?

b. Read the 31 October 2011 article ‘Prince Charles consent law to remain – Downing
Street’ at: www.bbc.co.uk/news/uk-politics-15521777

What was the government response to the decision of the information


commissioner discussed here? What justification was given? Do you think this is
an adequate justification in a democracy?

Activity 6.4
The long-term future of the monarchy continues to be questioned by some people
and doubts have been expressed as to whether its popularity will continue when
Prince Charles becomes king.
Compare the royalist and republican points of view in:
uu www.royal.gov.uk
uu https://republic.org.uk/
Do you think that the United Kingdom should become a republic? Give reasons for
your answer.
A controversial issue prominent in the news in 2015 was the so-called ‘black spider
letters’ case. This related to correspondence between the heir to the throne, the Prince
of Wales, and various government ministers. The long-running battle between a Guardian
journalist and governments is summarised in the following newspaper articles:

uu www.theguardian.com/uk-news/2015/jun/04/
prince-charles-letters-black-spider-memos-freedom-information
Public law  6  Ministerial accountability page 55

uu www.theguardian.com/commentisfree/2015/jun/04/
guardian-view-on-black-spider-memos-prince-charles-sacrificed-political-neutrality

For examples of this correspondence please look (in summary only) at: www.gov.uk/
government/collections/prince-of-wales-correspondence-with-government-departments

The Supreme Court decision is R (on the application of Evans) v A-G [2015] UKSC 21.

6.3 The role of the Prime Minister

Activity 6.5
Listen to the audio presentation ‘Prime Minister and cabinet’ on the VLE for an
introduction to their roles.
No feedback provided.
We have already seen in our discussion of the constitutional role of the monarch how
often duties which, on the face of it, are major responsibilities are carried out ‘on the
advice of the Prime Minister’. Such ‘advice’, given that the Queen, by convention, does
not have power to ignore or refuse it, indicates that the site of real political power is in
the hands of the Prime Minister. The phrase ‘the power behind the throne’ reflects the
United Kingdom’s 17th-century constitutional ‘bargain’, which left the monarch with
all the visual trimmings of power (including crown and robes, palaces, etc.) but with
policy and decision making placed firmly in the hands of the elected Prime Minister.

The power of the Prime Minister, who is normally the leader of the largest political
party in the House of Commons, does not rest on many statutes. There are relatively
few Acts of Parliament which refer to the Prime Minister, although we have already
seen how the Constitutional Reform and Governance Act 2010 sets out the factors that
must be considered by the Prime Minister when appointing the Lord Chancellor. Most
of the Prime Minister’s power rests on their political authority over the cabinet and,
ultimately, over Parliament, as well as his or her powers exercised by convention on
behalf of the Crown, known as the royal prerogative (see Chapter 7).

6.3.1 Accountability of the Prime Minister to the monarch


When examining the relationship between the monarch, the head of state, and her
Prime Minister, an important question is whether or not the monarch has any real say
in which Prime Minister is appointed and when (or if) he or she should resign. The point
at which this issue becomes vital is immediately after a general election. In almost
all general elections since 1945 a straightforward constitutional convention has been
sufficient. The convention provides that the Queen must appoint the leader in the
House of Commons of the political party with an overall majority (i.e. the party which
has sufficient MPs to be able to out-vote the MPs of all the other parties combined).

The obvious difficulty arises when the electorate, inconveniently, elects a Parliament
in which no political party has an overall majority. Because this has happened so rarely,
there has been some academic debate about the extent to which, if any, the Queen
retains residual powers to choose a new Prime Minister. These academic debates
became politically significant during the 2010 general election campaign, as it became
increasingly unlikely that any one political party would win an overall majority.

Anticipating such a result, the Cabinet Secretary, Sir Gus O’Donnell, updated the
Cabinet Manual setting out the basis on which the Prime Minister, the leaders of the
other main parties in the House of Commons and the Cabinet Secretary, on behalf of
the neutral civil service, should act. The key clause that was inserted, stated:

‘Hung’ Parliaments

16. Where an election does not result in a clear majority for a single party, the incumbent
Government remains in office unless and until the Prime Minister tenders his and the
Government’s resignation to the Monarch. An incumbent Government is entitled to await
the meeting of the new Parliament to see if it can command the confidence of the House
of Commons or to resign if it becomes clear that it is unlikely to command that confidence.
page 56 University of London

If a Government is defeated on a motion of confidence in the House of Commons, a Prime


Minister is expected to tender the Government’s resignation immediately. A motion of
confidence may be tabled by the Opposition, or may be a measure which the Government
has previously said will be a test of the House’s confidence in it. Votes on the Queen’s
speech have traditionally been regarded as motions of confidence.

Although the Cabinet Manual does not have the status of an Act of Parliament, its
restatement and amplification of existing conventions is given added force by the
events which followed the general election on 6 May 2010. Gordon Brown, the Prime
Minister, stayed in post initially, despite the fact that his Labour Party had lost its
overall majority and the Conservative Party was the largest party (though without an
overall majority). His negotiations with the third largest party, the Liberal Democrats,
to form a minority government failed and he eventually resigned as Prime Minister
on 11 May. David Cameron became Prime Minister on the same day when he could
show that he had formed a coalition government with a majority with the Liberal
Democrats. Despite the comments of some journalists who were clearly not used
to the political uncertainty of building a coalition, it was remarkable how quickly
the coalition was created. Other European countries where coalition government is
normal tend to negotiate at a much more leisurely pace.

What was the Queen’s personal role during this period? Essentially she seems to
have left the negotiating to the politicians, with the Cabinet Secretary acting as a
neutral facilitator of the discussions. Any other behaviour could, of course, have led
to a dangerous perception of political bias. A new edition of the Cabinet Manual was
subsequently published, which amplifies the paragraph set out above as follows:

2.13 Where a range of different administrations could potentially be formed, political


parties may wish to hold discussions to establish who is best able to command the
confidence of the House of Commons and should form the next government. The
Sovereign would not expect to become involved in any negotiations, although there
are responsibilities on those involved in the process to keep the Palace informed.
This could be done by political parties or the Cabinet Secretary. The Principal Private
Secretary to the Prime Minister may also have a role, for example, in communicating
with the Palace.

2.14 If the leaders of the political parties involved in any negotiations seek the support of
the Civil Service, this support may only be organised by the Cabinet Secretary with
the authorisation of the Prime Minister. If the Prime Minister authorises any support it
would be focused and provided on an equal basis to all the parties involved, including
the party that was currently in government. The Civil Service would continue to advise
the incumbent government in the usual way.

The focus is clearly on the elected party leaders to sort out the negotiations and there
is no suggestion that the Queen should be expected to help them reach agreement.

Activity 6.6
The Federal Republic of Germany has a written constitution which provides for an
elected head of state, the president and a chancellor who leads the government.
Coalition governments are common in Germany.
Read (in English) Articles 67–69 of the German constitution – Powers of president at:
www.servat.unibe.ch/icl/gm00000_.html
Do you think the German president has more power or influence over the
appointment of the chancellor than the Queen does in relation to the appointment
of the UK Prime Minister?

6.3.2 Accountability of the Prime Minister to Parliament


In some ways the UK constitution is very theatrical. As well as the pomp and ceremony
associated with the monarchy, the public perception of Parliament is heavily
influenced by scenes of elected middle-aged politicians shouting and cheering as the
Prime Minister responds to ‘questions’ from his or her opponents at the weekly Prime
Minister’s questions (PMQs).
Public law  6  Ministerial accountability page 57

Activity 6.7
Watch the latest available Prime Minister’s questions YouTube: www.youtube.com/
user/UKParliament/videos
(Note: If Parliament is not in currently in session, you may need to come back to this
activity later.)
a. Which questions, if any, appeared to bring out new information in the Prime
Minister’s response?

b. What is your opinion of the quality of the questioning?

c. Do you think the absence of PMQs would make a real difference to the
accountability of the Prime Minister?

Activity 6.8
Read the 18 July 2011 article ‘Prime Minister’s Question Time celebrates 50 years’ in
the Daily Telegraph: www.telegraph.co.uk/news/politics/8645054/Prime-Ministers-
Question-Time-celebrates-50-years.html and answer the following questions.
a. What does the writer consider the public think about PMQs?

b. Which key changes does he think have fundamentally changed its nature during
the 50 years?

Activity 6.9
Read the following extract from a speech by the speaker of the House of Commons,
John Bercow, to the Centre for Parliamentary Studies and answer the questions at
the end.
All of which leaves us with the PMQs seen in the last Parliament [2005–10]. We reached
the point where almost nothing was deemed beyond the personal responsibility of the
Prime Minister of the day [Gordon Brown], where the party leaders were responsible for a
third of all the questions asked (and often more like 50 to 60% of the total time consumed)
all set against a background of noise which makes the vuvuzela trumpets of the South
African World Cup appear but distant whispers by comparison. If it is scrutiny at all, then it
is scrutiny by screech which is a very strange concept to my mind. The academic analysis
does not make for enjoyable reading either. A survey by the Regulatory Policy Institute
of all PMQs posed in 2009 concluded that the Prime Minister had answered only 56 per
cent of all questions asked of him. If it seems harsh to cite Gordon Brown in this fashion
then it should be observed that the same survey determined that only 56 per cent of
the questions asked of him were actually genuine questions in the first place. What the
detailed exercise revealed, depressingly, was that PMQs had become a litany of attacks,
soundbites and planted questions from across the spectrum. It was emphatically not an
act of scrutiny conducted in a civilised manner. And this, ladies and gentlemen, is what the
House of Commons has allowed to be placed in what I repeat is the shop window.

What could be done about this?...It seems to me that three steps could be taken which
might lead us to a more attractive outcome.

The first surrounds the culture of Prime Minister’s Questions. No committee can legislate
for this. It would require the Prime Minister and a new Leader of the Opposition, as so nearly
happened in 1994, to agree on a common understanding of behaviour, one which offered
teeth to our existing code of conduct which states unequivocally that ‘Members shall at
all times conduct themselves in a manner which will tend to maintain and strengthen the
public’s trust and confidence in the integrity of Parliament and never undertake any action
which would bring the House of Commons, or its Members generally, into disrepute’. A
compact between the party leaders, endorsed by the Whips, would allow Speakers present
and future to enforce order far more vigorously with the parliamentary equivalent of Yellow
and Red Cards available at their disposal if that were to prove absolutely necessary.

The second element involves the character of PMQs which has shifted too far away from
backbench Members. Once again, it would be wrong to impose changes unilaterally. The
very fact of a coalition administration has opened up a little more space for backbenchers
as the two questions previously reserved for the Leader of the Liberal Democrats have
page 58 University of London

been opened up to them. This is helpful in terms of the balance of PMQs but it is hardly
decisive. If the session is to remain 30-minutes long, the next Leader of the Opposition
could usefully ask whether he or she truly needed as many as six questions of the Prime
Minister in order to land a blow or whether, in the spirit of Margaret Thatcher in the late
1970s, three or four would do instead. Arguably, however, a 45-minute or even 60-minute
session conducted with mutual respect would be a huge and welcome advance on the
status quo. In such circumstances, the current number of questions allocated to the
Leader of the Opposition would be more appropriate.

Finally, there is the content of the encounter. Is it the right device for ensuring effective
scrutiny? Does it need to be supplemented by other institutions? Are open questions
posed in the vain attempt to catch a Prime Minister out actually the best means of
inquiry? It has been 15 years since a Procedure Committee even addressed these issues,
let alone had their findings accepted by colleagues. It seems to me that the hour at which
Mr Blair’s assurance of 1997 that the Committee would be able to ‘review the system’ must
now have arrived. The ideal result for the House in my view would be more scrutiny, more
civility, less noise and less abuse masquerading as inquiry.

a. What do you think Bercow means by ‘scrutiny by screech’?

b. What percentage of questions to the Prime Minister in 2009 did the Regulatory
Policy Institute calculate were actually answered by him?

c. How does Bercow describe the questions which were not genuine?

d. What practical improvements would Bercow like?

e. Do you agree with Bercow?

6.4 The role of ministers and the cabinet


The cabinet consists of the most senior government ministers, approximately 20 in
number, who meet, normally, once a week at the Prime Minister’s residence at 10
Downing Street. It has no legal personality as an institution and has been described
as ‘a creature of convention’. It is supported by a civil service department called
the Cabinet Office which takes a leading role in the civil service (see www.gov.uk/
government/organisations/cabinet-office).

6.4.1 Why is the cabinet important?


The cabinet consists of the most politically important members of the House of
Commons and House of Lords. They are normally chosen from the governing party
although, in the case of a coalition, both governing parties will provide members.
Any gathering of ministers with distinct responsibilities for different government
departments would be likely to be important politically, but the cabinet has significant
control over Parliament in its power to set the legislative agenda for each annual
session. Decisions on policy and legislation are often made by cabinet committees
which include officials as well as ministers.

6.4.2 The relationship between the cabinet and the Prime Minister
Political journalists always love stories about conflict between Prime Ministers and
their ministers. It is clear that, even where a government consists of only one party,
there are often serious personality and policy clashes between the Prime Minister and
individual ministers. Andrew Le Sueur describes the relationship as follows:

The relative powers of the Prime Minister and the Cabinet have been the subject of much
analysis and debate. For some, the ‘central directing instrument of government, in legislation
as well as in administration, is the Cabinet...It is the Cabinet which controls Parliament and
governs the country.’ For another, the ‘post-war epoch has seen the final transformation
of Cabinet Government into Prime Ministerial Government’. Still others relate the role and
importance of the Cabinet to the leadership styles of particular Prime Ministers.
(in Feldman, D. (ed.) English public law (Oxford: Oxford University Press, 2009))
Public law  6  Ministerial accountability page 59

6.4.3 The role of the cabinet under a coalition government


Although an infrequent occurrence in the Westminster Parliament, it is interesting
to observe, by considering the agreements between the Conservative and Liberal
Democrat Coalition from 2010–15, the ways in which the operation of the cabinet
might differ. The Coalition agreement for stability and reform, which was agreed in
May 2010, dealt with the way in which government was to operate in the unusual
circumstances of a coalition. It is worth looking at the clauses dealing with the cabinet:

1. Composition of the Government

1.1 The initial allocation of Cabinet, Ministerial, Whip and Special Adviser appointments
between the two Parties was agreed between the Prime Minister and the Deputy
Prime Minister.

1.2 Future allocation will continue to be based on the principle that the Parliamentary Party
with fewer MPs will have a share of Cabinet, Ministerial and Whip appointments agreed
between the Prime Minister and the Deputy Prime Minister, approximately in proportion
to the size of the two Parliamentary parties. The Prime Minister, following consultation
with the Deputy Prime Minister, will make nominations for the appointment of Ministers.
The Prime Minister will nominate Conservative Party Ministers and the Deputy Prime
Minister will nominate Liberal Democrat Ministers. The Prime Minister and the Deputy
Prime Minister will agree the nomination of the Law Officers.

1.3 Any changes to the allocation of portfolios between the Parliamentary Parties during
the lifetime of the Coalition will be agreed between the Prime Minister and the Deputy
Prime Minister.

1.4 No Liberal Democrat Minister or Whip may be removed on the recommendation of the
Prime Minister without full consultation with the Deputy Prime Minister.
We can see that the cabinet was to be drawn from leading members of the
Conservative and Liberal Democrat parties. The cabinet did not represent the best
effort of the Prime Minister to form an effective and moderately united team. Instead,
it was the product of negotiations where the initial decisions were which party was to
have which ministerial role. Only then were the Prime Minister and the deputy Prime
Minister able to select who was to serve in their party’s allocated roles.

A disinterested observer might conclude from this part of the agreement that the
cabinet would spend most of its time as the battlefield between the two political
‘teams’ and would risk political and administrative paralysis. One reason this does
not appear to have happened is through the establishment of a coalition committee
whose role is set out below:

3.4 The Prime Minister, with the agreement of the Deputy Prime Minister, has established
a Coalition Committee which will oversee the operation of the Coalition, supported
by the Cabinet Secretariat. It will be co-chaired by the Prime Minister and the Deputy
Prime Minister, with equal numbers of members drawn from the two Coalition Parties.

3.5 Unresolved issues may be referred to the Coalition Committee from any other Cabinet
Committee by either that Committee’s chair (who will be a member of one Coalition
Party) or its deputy chair (who will be a member of the other Coalition Party).

6.4.4 Accountability of ministers to Parliament


Although the cabinet draws its power from its political authority and convention,
individual ministers have duties and responsibilities which are laid down in statutes.
A key issue in a parliamentary democracy is how they are individually responsible to
Parliament for the failure of their departments in fulfilling these duties.

Let us first consider how a government department can experience failure. The first
example is where there is a single catastrophic failure. This may be due to the actions
of a single civil servant who makes a mistake in executing their duties. Alternatively,
failure may be due to an operational error by the management of a government
agency. The third category of failure may be due to a foolish policy decision, or failure
to act, of the individual minister. It is often genuinely difficult to disentangle the true
cause of a failure in government and, of course, the Opposition will be keen to pin the
blame on the minister, rather than on their civil servants.
page 60 University of London

In essence, the convention of ministerial responsibility requires a minister to accept


political responsibility to Parliament in contrast to the political neutrality of their civil
servants.

The current version of the Ministerial Code, published in January 2018, sets out the
convention as follows:

(a) The principle of collective responsibility applies to all government ministers;

(b) Ministers have a duty to Parliament to account, and be held to account, for the
policies, decisions and actions of their departments and agencies;

(c) It is of paramount importance that Ministers give accurate and truthful information to
Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who
knowingly mislead Parliament will be expected to offer their resignation to the Prime
Minister;

(d) Ministers should be as open as possible with Parliament and the public, refusing to
provide information only when disclosure would not be in the public interest which
should be decided in accordance with the relevant statutes and the Freedom of
Information Act 2000;

(e) Ministers should similarly require civil servants who give evidence before
Parliamentary Committees on their behalf and under their direction to be as helpful
as possible in providing accurate, truthful and full information in accordance with the
duties and responsibilities of civil servants as set out in the Civil Service Code;...
The interpretation of ministers’ responsibilities under the convention has varied over
the years. An early example is the resignation of the government minister Sir Thomas
Dugdale, who resigned in 1954 following revelations of maladministration of his
agriculture department in the Crichel Down affair. In 1982 Lord Carrington, the Foreign
Secretary, resigned following the unanticipated invasion of the Falkland Islands by
Argentina. In contrast, in 1994 the Home Secretary, Michael Howard, refused to resign
following the escape of prisoners from a prison. He argued that the failure was an
operational one on the part of the director-general of prisons. He retained the support
of his fellow Conservative MPs and, crucially, the Prime Minister and was not forced to
resign.

Among recent ministerial resignations are the following. The Secretary of State
for International Development, Priti Patel, resigned in November 2017 following
revelations that she had held unauthorised meetings with Israeli ministers and
others in 2017. The Secretary of State for Defence, Michael Fallon, also resigned in
November 2017 following allegations that he had behaved ‘inappropriately’ towards
a female journalist several years previously. In December 2017, the Deputy Prime
Minister, Damian Green, was forced to resign over making ‘inaccurate and misleading’
statements about pornography found by the police on his parliamentary computer.
They were also allegations of ‘inappropriate behaviour’ towards a female journalist.
The Home Secretary, Amber Rudd, resigned in April 2018 over the Home Office’s
treatment of people who had come to Britain from the Commonwealth before 1973.
The ‘Windrush scandal’ came to light when lawfully, some residents (many of them
elderly) were wrongly detained, denied legal rights, threatened with deportation,
and, in some cases, wrongly deported from the UK. Many people lost their jobs or
homes and were denied NHS treatment. It was then revealed that the Home Office had
set targets for deporting illegal immigrants, a fact about which the Home Secretary
claimed to be unaware and denied in Parliament, leading to claims that she had
misled Parliament, contrary to the Ministerial Code.

Activity 6.10
Read s.1 of the Health and Social Care Act 2012:
(3) The Secretary of State retains ministerial responsibility for the provision of the health
service in England.
The arguments over this sub-clause in Parliament reflected the importance
attached by MPs and members of the House of Lords to the concept of ministerial
responsibility. This sub-clause was an amendment reflecting fears that the
Public law  6  Ministerial accountability page 61

government was seeking to privatise large parts of the National Health Service and
that the health secretary wished to avoid ministerial responsibility to Parliament.
The Constitution Committee of the House of Lords considered this issue and
Appendix 1 of their report is set out at:
www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/240/24004.htm
Read Appendix 1 and answer the following questions:
a. Paragraph 4 states that no distinction should be drawn between ministerial
responsibility and what?

b. Why had it been argued that there was no point in retaining ministerial
responsibility for the health service and why did the committee disagree with
this?

c. Why is ministerial responsibility constitutionally different from the


accountability of the NHS Commissioning Board?

6.4.5 Collective ministerial responsibility


Ordinary members of the public probably underestimate the pressure that ministers
experience from the media, their own constituents, their colleagues, pressure groups
and industry lobbies and, of course, the Opposition. One of the key ways in which
ministers cope with the media, pressure groups and opponents, who are often seeking
to gain advantage by exploiting divisions between them, is to present a united ‘front’.
This enables them to keep their vigorous debates in cabinet about policy decisions
reasonably private and encourages all members of the cabinet to accept decisions
with which they disagree, in the greater interest of government unity.

This appeal to collective loyalty is underpinned by the crucial constitutional


convention of collective ministerial responsibility which provides that, once the
cabinet has made the decision, all government ministers must publicly support
and defend it. If an individual minister cannot, for any reason, do so, the convention
requires them to resign.

The Cabinet Office Ministerial Code (2018) describes the convention as follows:

2.1 The principle of collective responsibility requires that Ministers should be able to
express their views frankly in the expectation that they can argue freely in private
while maintaining a united front when decisions have been reached. This in turn
requires that the privacy of opinions expressed in Cabinet and Ministerial Committees,
including in correspondence, should be maintained...

2.3 The internal process through which a decision has been made, or the level of
Committee by which it was taken should not be disclosed. Decisions reached by the
Cabinet or Ministerial Committees are binding on all members of the Government.
They are, however, normally announced and explained as the decision of the Minister
concerned. On occasion, it may be desirable to emphasise the importance of a
decision by stating specifically that it is the decision of Her Majesty’s Government.
This, however, is the exception rather than the rule. Ministers also have an obligation
to ensure decisions agreed in Cabinet and Cabinet Committees (and in write-rounds)
are implemented. Ministers should take special care in discussing issues which are the
responsibility of other Ministers, consulting ministerial colleagues as appropriate.

2.4 Matters wholly within the responsibility of a single Minister and which do not
significantly engage collective responsibility need not be brought to the Cabinet or
to a Ministerial Committee unless the Minister wishes to inform his colleagues or to
have their advice. No definitive criteria can be given for issues which engage collective
responsibility. The Cabinet Secretariats can advise where departments are unsure,
however, the final decision rests with the Prime Minister. When there is a difference
between departments, it should not be referred to the Cabinet until other means of
resolving it have been exhausted. It is the responsibility of the initiating department
to ensure that proposals have been discussed with other interested departments and
the outcome of these discussions should be reflected in the memorandum or letter
submitted to Cabinet or a Cabinet Committee.
page 62 University of London

Inevitably, given the strongly held beliefs of individual politicians and the difficult and
controversial decisions which all governments have to make, some ministers will not
be prepared to accept collective ministerial responsibility and will resign.

Examples of ministerial resignations over decisions include Robin Cook, who resigned
as Leader of the House of Commons in 2003 over the decision to invade Iraq. Note that
the convention applied here, even though foreign policy and defence issues were not
part of the responsibilities of the Leader of the House of Commons. In 1986 Michael
Heseltine, the Secretary of State for Trade and Industry, resigned over the Westland
Helicopters contract.

The United Kingdom’s withdrawal from the EU (Brexit) has caused severe difficulties
for the unity of government. In 2018 the following Ministers resigned in protest over
the negotiations and/or the terms of the Withdrawal Agreement negotiated by the
Prime Minister: David Davis, Brexit Secretary; Boris Johnson, Foreign Secretary; Dominic
Raab, Brexit Secretary; Steve Baker, Brexit Minister; Suella Braverman, Junior Brexit
Secretary; Esther McVey, Work and Pensions Secretary; Jo Johnson, Transport Minister;
Sam Gyimah, Universities and Science Minister; Shailesh Vara, Northern Ireland
Minister.

6.4.6 Free votes


Sometimes a government may not have a collective view on a particular proposal. An
example is the controversial issue of abortion where governments have not instructed
their MPs (including ministers) on how to vote. This approach has applied to all votes
on abortion since the Abortion Act 1967 legalised it in the United Kingdom. It is usually
politically easier for a Prime Minister to grant a free vote if the Opposition is also
granting a free vote to its shadow ministers and MPs. You might like to browse the
following document which lists the free votes in the House of Commons since 1997:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN04793

6.4.7 Agreed exceptions to collective ministerial responsibility


In some circumstances a Prime Minister may choose to suspend the convention in
relation to a particularly controversial issue on which their government is divided. An
example is Harold Wilson’s decision to permit ministers to campaign on both sides
of the 1975 referendum on European Community membership. A recent example was
in relation to the referendum on the UK’s membership of the European Union held in
June 2016. The stated intention of this ‘agreement to differ’ was to allow for there to be
a clear government position on the UK’s membership of the EU while at the same time
allowing individual ministers to take different personal positions. You might like to
read the (then) Prime Minister’s letter to Ministerial colleagues which can be accessed
here: www.gov.uk/government/uploads/system/uploads/attachment_data/file/491181/
EU_Referendum_PM_Minute.pdf
Public law  6  Ministerial accountability page 63

Activity 6.11
Read the following statement of Prime Minister Harold Wilson, cited in the House
of Commons Research Paper 04/82 15 November 2004 The Collective Responsibility
of Ministers – an Outline of the Issues setting out guidelines on how this exception
should apply to ministers, and answer the questions at the end.
In accordance with my statement in the House on 23rd January last, those Ministers who
do not agree with the Government’s recommendation in favour of continued membership
of the European Community are, in the unique circumstances of the referendum, now
free to advocate a different view during the referendum campaign in the country. This
freedom does not extend to parliamentary proceedings and official business. Government
business in Parliament will continue to be handled by all Ministers in accordance with
Government policy. Ministers responsible for European aspects of Government business
who themselves differ from the Government’s recommendation on membership of the
European Community will state the Government’s position and will not be drawn into
making points against the Government recommendation. Wherever necessary Questions
will be transferred to other Ministers. At meetings of the Council of Ministers of the
European Community and at other Community meetings, the United Kingdom position
in all fields will continue to reflect Government policy. I have asked all Ministers to make
their contributions to the public campaign in terms of issues, to avoid personalising or
trivialising the argument, and not to allow themselves to appear in direct confrontation,
on the same platform of programme, with another Minister who takes a different view on
the Government recommendation.

a. How were ministers who were responsible for matters involving the European
Community expected to behave when questioned in Parliament about this issue?

b. Why do you think the Prime Minister sought to restrict the way in which
ministers disagreed with each other in public debates outside Parliament?

6.4.8 Collective cabinet responsibility under coalition government


The formation of the coalition government in 2010 posed new challenges for the
convention. A cabinet formed of Liberal Democrat and Conservative ministers would
be likely to contain a significantly wider range of political beliefs and views on policy
than one made up of representatives of only one party. The negotiating party leaders
were very aware of this issue, which was dealt with in the Coalition: agreement for
stability and reform (2010):

2. Collective responsibility

2.1 The principle of collective responsibility, save where it is explicitly set aside,† continues Note that this phrase ‘save
to apply to all Government Ministers. This requires: where it is explicitly set aside’,
which was included also in the
(a) an appropriate degree of consultation and discussion among Ministers to provide 2010 version of the Ministerial
the opportunity for them to express their views frankly as decisions are reached, Code, was removed from the
and to ensure the support of all Ministers; 2015 and subsequent version
(b) the opinions expressed and advice offered within Government to remain private; of the Ministerial Code (as one
might expect under a single-
(c) decisions of the Cabinet to be binding on and supported by all Ministers; party government).
(d) full use being made of the Cabinet Committee system and application of the
mechanisms for sharing information and resolving disputes set out in this
document.

The Coalition: our programme for government (2010) set out five areas of policy where
ministers were allowed to speak against public policy and their MPs were given
permission to abstain from key votes:

uu transferable tax allowances for married couples (a Conservative manifesto


commitment)

uu the referendum on the alternative vote electoral system for the House of
Commons – in the actual referendum campaign the Liberal Democrats argued in
favour of the reform while the Conservatives opposed it
page 64 University of London

uu an alternative nuclear defence system to the Trident system (the Liberal Democrats
oppose the Trident system)

uu student fees increases – Liberal Democrat MPs were free to abstain (although 21
voted against), but all the ministers supported the legislation

uu nuclear power policy.

6.4.9 How useful is collective cabinet responsibility?

Activity 6.12
Vernon Bogdanor has argued:
The implication would seem to be that collective cabinet responsibility is as much a
maxim of political prudence as it is a convention of the constitution. It is in general
sensible for a government to observe it, just as it is sensible for any collective executive,
such as, for example, the board of a company, to maintain a united front, so as not to
weaken its position by publicly displaying differences of opinion. On certain occasions,
however, where there are deep seated differences of opinion which cannot easily be
reconciled, it may be the lesser evil to suspend the principle.

...For the principle of collective responsibility is more appropriate to an era of collective


duopoly and tribal politics than to a period of multi-party politics, when governments are
less likely to be unified ideologically than they once were.
(The new British constitution (Oxford: Hart Publishing, 2009))

Do you think, on balance, collective cabinet responsibility is applied too strictly in


the UK constitution?

6.5 Ministerial accountability and the civil service


We have already seen how a government minister is treated as having ministerial
responsibility for the actions of their civil servants. It is clear from the discussion at
Sections 6.4.1 and 6.4.2 that ministers are no longer (if they ever were) prepared to
accept full responsibility for everything that goes wrong in government. In the light
of this trend, there has been an increasing focus on the ways in which civil servants
themselves are held accountable to Parliament.

In Chapter 2 at Section 2.3.1 we reviewed how the select committee system works in
practice. At this point it is helpful to consider the guidance for civil servants giving
evidence to select committees.

Activity 6.13
Read the following extracts from this guidance set out in the ‘Osmotherley rules’
or, as they are formally known, ‘Giving Evidence to Select Committees: Guidance for
Civil Servants’ (Cabinet Office, 2014) and answer the questions at the end.
General Principles

4. The Civil Service Code makes clear that civil servants are accountable to Ministers
who in turn are accountable to Parliament. It therefore follows that when civil servants
give evidence to a Select Committee they are doing so, not in a personal capacity, but as
representatives of their Ministers.

5. This does not mean that officials may not be called upon to give a full account of
government policies, or the justification, objectives and effects of these policies, but their
purpose in doing so is to contribute to the process of ministerial accountability not to
offer personal views or judgements on matters of government policy — to do so could
undermine their political impartiality.

9. Civil servants who give evidence to Select Committees do so on behalf of their


Ministers and under their directions.


Public law  6  Ministerial accountability page 65

Parliamentary Privilege and Contempt Procedures

19. Parliamentary proceedings are subject to absolute privilege, to ensure that those
participating in them, including witnesses before Select Committees, can do so
without fear of external consequences. This protection, enshrined in the Bill of Rights,
is an essential element in ensuring that Parliament can exercise its powers freely
on behalf of its electors. Departments must not take disciplinary action against civil
servants or members of NDPBs (or anyone else) as a consequence of them giving
evidence to a Select Committee. Such action might be regarded as contempt of the
House, with potentially serious consequences for those involved. [See Sixth Report of
the Committee on Standards and Privileges, Session 2003-04, HC1055.]

Discussion of Government policy

33. Officials should as far as possible confine their evidence to questions of fact and
explanation relating to government policies and actions. They should be ready to
explain what those policies are; the justification and objectives of those policies as
the Government sees them; the extent to which those objectives have been met; and
also to explain how administrative factors may have affected both the choice of policy
measures and the manner of their implementation. Any comment by officials on
government policies and actions should always be consistent with the principle of civil
service political impartiality. Officials should as far as possible avoid being drawn into
discussion of the merits of alternative policies, including their advice to Ministers.

If official witnesses are pressed by the Committee to go beyond these limits, they
should make clear to the Committee that they are unable to answer the questions as
the line of questioning is for the relevant Minister and that they are not authorised by
their Minister to go any further. Select Committees should respect this position and
it is then for the Committee to decide whether to request the Minister to provide the
evidence.

Disciplinary matters relating to civil servants

35. It is not the role of Select Committees to act as disciplinary tribunals. Disciplinary
matters are for Departments in the first instance. A Minister will therefore wish to
consider carefully a Committee’s request to take evidence from a named official
where this is likely to expose the individual concerned to questioning about their
personal actions or the allocation of blame between them and others. This will be
particularly so where the official concerned has been subject to, or may be subject to,
an internal departmental inquiry or disciplinary proceedings. Ministers may, in such
circumstances, wish to suggest either that he or she give evidence personally to the
Committee or that a designated senior official do so on their behalf.

36. It is for the Minister to look into the matter and if necessary to institute a formal
inquiry. Such an inquiry into the conduct and behaviour of individual officials and
consideration of disciplinary action is properly carried out within the Department
according to established procedures set out in Departmental staff Handbooks. It is
then the Minister’s responsibility to inform the Committee of what has happened, and
of what has been done to put the matter right and to prevent a recurrence. Evidence
to a Select Committee on this should be given not by the official or officials concerned,
but by the Minister or by the Permanent Secretary or another senior officer.

a. Why do you think civil servants are required to avoid becoming involved in
discussions relating to disciplinary action against individual civil servants?

b. What should a civil servant do if a line of questioning asks for their personal
opinions on a controversial policy?

c. Do you think that this attempt to spell out the boundary between civil service
accountability and ministerial accountability to Parliament is sufficiently
precise?
page 66 University of London

6.6 Summary
1. The concept of legitimacy reflects a general acceptance and confidence in the
administration of public affairs by the public. Decisions will generally be accepted
even if individual members of the public disagree with them.

2. Accountability requires public authorities, including ministers, to explain and


justify their decisions and actions. Sanctions such as censure or dismissal may be
applied.

3. The monarch’s role in the UK constitution is formal and ceremonial as the head
of state. The Queen is required to follow the ‘advice’ of her ministers. Her formal
duties include opening Parliament and reading the ‘Queen’s speech’ (written by
the Prime Minister), and setting the date of an early general election on the advice
of the Prime Minister in accordance with the Fixed-term Parliaments Act 2011.

4. Areas of controversy relating to the monarch’s role in the constitution include the
secrecy surrounding the consultations with the Queen and Prince Charles over new
legislation and Prince Charles’s secret correspondence with government ministers
on various subjects.

5. The selection of the Prime Minister normally follows automatically when one party
wins an overall majority in a general election. There has been academic debate
about the residual powers of the monarch in the event of a ‘hung’ parliament (with
no party having an overall majority in the House of Commons), but in 2010 the
Conservative and Liberal Democrat party leaders negotiated a coalition with the
assistance of the cabinet secretary in accordance with the Cabinet Manual.

6. The Prime Minister is accountable to the House of Commons at Prime Minister’s


questions (PMQs) once a week for 30 minutes. These are often very rowdy
occasions and the speaker, John Bercow, has argued that they should be reformed
with more civilised behaviour and fewer ‘planted’ questions.

7. The cabinet consists of the most senior representatives of the governing party
who have been appointed by the Prime Minister as ministers. Cabinet committees
play an important role in inter-departmental negotiations. The balance of power
between the Prime Minister and the cabinet varies over time and some Prime
Ministers have greater political authority over their colleagues than others.

8. The coalition cabinet (from 2010–15) included ministers from the Liberal Democrat
and Conservative parties. The allocation of ministerial posts was negotiated
by the Prime Minister and deputy Prime Minister and each party leader had
effective autonomy in choosing ministers for their party’s portfolios, although full
consultation between them was laid down in the Coalition agreement for stability
and reform.

9. Ministers are individually politically responsible to Parliament for the actions of their
departments’ civil servants and their policies and decisions. They are required to give
accurate and truthful information in accordance with statutes including the Freedom
of Information Act 2000. There appears to have been a change in the willingness of
ministers to accept responsibility for failures in their departments in recent years:
compare the Crichel Down affair with Michael Howard’s refusal to resign in 1994.

10. The convention of collective ministerial responsibility requires government


ministers publicly to support decisions made by cabinet, even if they argued
against them in cabinet. If a minister is not prepared to do so, they will be required
to resign. Examples include Robin Cook resigning in 2003 over the invasion of Iraq.

11. Free votes are granted by the Prime Minister on certain issues which are seen to be
non-party political, such as abortion.

12. On rare occasions a Prime Minister may suspend collective ministerial


responsibility in relation to a particularly divisive issue. Harold Wilson granted such
an exception in 1975 in relation to the referendum on the European Community,
but set out ground rules for ministers designed to prevent the debate becoming
Public law  6  Ministerial accountability page 67
destructive of cabinet unity. David Cameron made a similar decision to suspend
collective responsibility in relation to the EU Referendum in 2016.

13. The Coalition: our programme for government (2010) set out five areas of policy
in which ministers in the coalition government were to be allowed to disagree
publicly and abstain on key parliamentary votes. The most important was the
referendum on the alternative vote electoral system for the House of Commons.

14. The ‘Osmotherley rules’ set out the approach civil servants are expected to take
when responding to questions by MP and Lords in select committees. They are
expected to focus on factual information and not to be drawn into discussions of
controversial policies or disciplinary issues affecting individual civil servants.
page 68 University of London

Notes
7 Crown and prerogative powers

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

7.1 Comparing sources of legal authority for public bodies . . . . . . . . . .71

7.2 Categories of prerogative powers . . . . . . . . . . . . . . . . . . . . 72

7.3 Definitions of prerogative powers . . . . . . . . . . . . . . . . . . . . 76

7.4 Relationship between prerogative and statutory powers . . . . . . . . . 77

7.5 Judicial review of prerogative powers . . . . . . . . . . . . . . . . . . 78

7.6 Reforming ministerial prerogatives . . . . . . . . . . . . . . . . . . . 79

7.7 Case study: deployment of British armed forces abroad . . . . . . . . . 80

7.8 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
page 70 University of London

Introduction
In this chapter we examine a controversial source of power for government, known
as prerogative powers. These powers originally derived from the authority of the
monarchy, but have evolved to enable government ministers, on behalf of the Crown,
to take executive action in a number of important areas of policy and administration.

We will first compare prerogative powers with statutes and a disputed additional
‘third source power’ which, it is argued, gives ministers power to act where there is
no statute forbidding the action. The different categories of prerogative power will
be examined, as well as a list of ministerial executive powers. After briefly discussing
the monarch’s remaining constitutional powers, as well as the concept of Crown
immunity, we will review some definitions of prerogative powers as well as academic
discussion on them.

Next we will consider the relationship between prerogative powers and statute as well
as some key cases on the judicial review of prerogative powers.

Given the controversial nature of these powers, we will consider proposals for reform
and the arguments between pragmatism and principle.

Finally, we will review how what is probably the most important prerogative power of
all – the power to declare war – was exercised before the invasion of Iraq in 2003 and
the contrasting approaches of judges and politicians to subsequent reform.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 9: Prerogative powers and case study on
the deployment of armed forces abroad.

Further reading
¢¢ Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report
(2009) (especially pp.3–11).

¢¢ Blackburn, R. ‘The prerogative power of dissolution of Parliament: law, practice


and reform’ (2009) Public Law 766.

¢¢ Brazier, R. Constitutional reform, Chapter 6: Ministers’ powers.

¢¢ Leyland, P. The constitution of the United Kingdom, Chapters 2: The sources of the
constitution and 3: Constitutional principles.

¢¢ Poole, T. ‘United Kingdom: the royal prerogative’ (2010) 8 International Journal of


Constitutional Law 146.

¢¢ Young, A. ‘Are prerogative powers necessary in the twenty-first century?’


in Galligan, D.J. (ed.) Constitution in crisis. (London: IB Tauris, 2017)
[ISBN 9781788310727].
Public law  7  Crown and prerogative powers page 71

7.1 Comparing sources of legal authority for public bodies


Before considering prerogative powers in detail, it is helpful to distinguish them
from alternative sources of legal authority. In a parliamentary democracy the main
alternative source is, of course, statutes. We have already seen how key statutes such
as the Constitutional Reform and Governance Act 2010 have effected major changes in
the constitution and most public bodies in the United Kingdom, such as the Scottish
government, Welsh Assembly government, local authorities, etc., derive their powers
from various statutes. Each statute (Act of Parliament) is created after a process of
scrutiny and amendment by both Houses of Parliament. Only once both Houses have
voted in favour of the Bill will the Queen be required, by convention, to give the Royal
Assent.

Prerogative powers, on the other hand, are a set of residual legal powers that are
treated by the courts as being part of the common law. The monarch and government
ministers exercise them in the name of the ‘Crown’.

7.1.1 Summary of differences between statutory and prerogative powers


Statutory powers Prerogative powers

Source Parliament Residual executive powers derived from


monarchical power
Role of Debates, scrutinises and votes Reactive – calls ministers to account after
Parliament on Bills power has been exercised
Creation of new New statutes giving ministers No new prerogative powers can be created
powers executive powers are created in – it is ‘350 years and a Civil War too late’ for
every Parliament that: per Lord Diplock BBC v Johns (1965)
Place in Highest form of law (subject to As part of the common law, may be
hierarchy of law EU law) but may be repealed abolished or restricted by Act of Parliament
or amended by later Acts of
Parliament (see discussion of
parliamentary supremacy in
Chapter 3)
Judicial review Courts may review legality Courts may review legality of exercise of
of exercise of powers powers (following Council for Civil Service
unless subject matter is Unions v Minister for the Civil Service (1985))
‘non-justiciable’ provided subject matter is justiciable

7.1.2 ‘Third source’ of authority?


In addition to statute and prerogative powers, some academics and judges have argued
that UK government ministers and some other public bodies possess general common
law powers that give them residual powers to act without statutory or prerogative
authority where their actions will have no legal consequences for others. This is referred
to as the ‘Ram doctrine’ after Sir Granville Ram, a civil servant who first described it.

The Ram doctrine has been considered in several cases.

In Malone v Metropolitan Police Commissioner (1979) it was revealed that the police
had tapped the applicant’s phone. At this time there was no statute authorising legal
phone tapping, nor was any prerogative power claimed. Megarry VC stated:

If the tapping of telephones...at the request of the police can be carried out without any
breach of the law, it does not require any statutory or common law power to justify it: it
can lawfully be done simply because there is nothing to make it unlawful.
Malone later won his case at the European Court of Human Rights (ECtHR) and the
Interception of Telecommunications Act 1985 was subsequently passed, allowing the
Home Secretary to tap telephones in regulated circumstances.

The Ram doctrine was later reviewed by the Court of Appeal in R (on the application of
Shrewsbury and Atcham BC) v Secretary of State for Communities and Local Government
(2008), where a minister published a White Paper setting out her proposals for
reorganising local government in Shropshire without using a statutory consultation
page 72 University of London

scheme. Differing views were expressed about the scope of the Ram doctrine.
Carnwath LJ stated:

I would be inclined respectfully to share the view of the editors of de Smith that ‘The
extension of the Ram doctrine beyond its modest initial purpose of achieving incidental
powers should be resisted in the interest of the rule of law’.

By contrast Richards LJ drew an analogy with the powers of a corporation (e.g. a


company):

It is still necessary to explain the basis on which that ordinary business of government is
conducted, and the simple and satisfactory explanation is that it depends heavily on the
‘third source’ of powers, i.e. powers that have not been conferred by statute and are not
prerogative powers in the narrow sense but are the normal powers (or capacities and
freedoms) of a corporation with legal personality.

Note, however, that the House of Lords Select Committee on the Constitution
examined this in 2012–13 and concluded that it was not ‘an accurate reflection of
the law today’ and that ‘the description of the common law powers of the Crown
encapsulated in the phrase “the Ram doctrine” is inaccurate and should no longer be
used’ (The pre-emption of Parliament, HL 165, 2012–13, available at https://publications.
parliament.uk/pa/ld201213/ldselect/ldconst/165/165.pdf).

Activity 7.1
What difficulties arise in relation to the ‘third power’ doctrine? Does it have
implications for the rule of law?

7.2 Categories of prerogative powers


The House of Commons Public Administration Select Committee in March 2004
produced an influential report, Taming the prerogative. It identified three broad
categories of prerogative powers.

7.2.1 The Queen’s constitutional prerogatives


These are the personal discretionary powers retained by the Queen. The report states:

They include the rights to advise, encourage and warn Ministers in private; to appoint the
Prime Minister and other ministers; to assent to legislation; to prorogue or to dissolve
Parliament; and (in grave constitutional crisis) to act contrary to or without Ministerial
advice. In ordinary circumstances the Queen, as a constitutional monarch, accepts
Ministerial advice about the use of these powers if it is available, whether she personally
agrees with that advice or not. That constitutional position ensures that Ministers take
responsibility for the use of the powers.

We have already considered in Chapter 6 the extent to which the Queen does, in fact,
have any real personal role in the appointment of a new Prime Minister.

Activity 7.2
Consider the 18 December 2012 news story ‘UK to name part of Antarctica Queen
Elizabeth Land’ in which the Queen attended a meeting of the cabinet:
www.bbc.co.uk/news/uk-politics-20757382
Do you think there are any constitutional issues arising from this historic event?

Activity 7.3
Read and think about the discussion between Professors Robert Blackburn and
Rodney Brazier in Blackburn, R. ‘Monarchy and the personal prerogatives’ (Autumn
2004) Public Law 546, and Brazier, R. ‘Monarchy and the Personal Prerogatives – A
personal response to Professor Blackburn’ (Spring 2005) Public Law 45 (both
available in Westlaw through the Online Library).
Which view do you prefer?
No feedback provided.
Public law  7  Crown and prerogative powers page 73

7.2.2 The Crown’s legal prerogatives


These are legal, rather than constitutional, prerogatives and include a number of
historical remnants such as the Crown’s right to sturgeon, certain swans and whales.
Occasionally, these rights can cause a measure of confusion as seen in the following
story about sturgeon.

Activity 7.4
Consider the report ‘Sturgeon is back and museum-bound’ (5 June 2004) on the
Queen’s right to any sturgeon landed in the United Kingdom: http://news.bbc.
co.uk/1/hi/wales/3776003.stm
Do you think it is appropriate for the Queen to have the right to receive such a rare
fish in the event of it being caught?
More importantly, the report highlights the principle that the Crown is presumed by
the courts not to be bound by an Act of Parliament unless the Act expressly, or by clear
implication, states that the Crown is bound. See, for example, s.144 of the Localism Act
2011:

144 Application of this Part to the Crown

An amendment made by this Part in –

(a) the Town and Country Planning Act 1990,

(b) the Planning (Listed Buildings and Conservation Areas) Act 1990,

(c) the Planning and Compulsory Purchase Act 2004, or

(d) the Planning Act 2008,

binds the Crown.

Another crucial rule is that the Crown and ‘emanations of the Crown’ are immune from
prosecutions for criminal offences (‘the Crown can do no wrong’).

Activity 7.5
Review the guidance on ‘Crown exemption for controlled military list
equipment and technology owned by the UK MOD’ at: www.gov.uk/guidance/
crown-immunity-of-controlled-military-and-dual-use-items
a. Which legislation is the Crown not subject to?

b. What do you think the justification might be for this immunity?

Activity 7.6
Read the ‘Enforcement against Crown bodies’ section of the Enforcement Guide
from the Health and Safety Executive (HSE) website: www.hse.gov.uk/enforce/
enforcementguide/investigation/approving-enforcement.htm
a. What is the legal status of the Crown in relation to health and safety legislation?

b. What is a Crown censure?

c. In what circumstances will trade union or other safety officials be excluded from
the hearing?

d. Do you think that this administrative procedure is an appropriate replacement


for a trial in a magistrates’ court?

7.2.3 Prerogative executive powers


These are the prerogative powers that have been delegated to ministers by the
sovereign. Parliament is not involved in their exercise and ministers are able to act
without the authority of an Act of Parliament.

The House of Commons Public Administration Select Committee report Taming the
prerogative highlighted the fact that Parliament has in the past limited or abolished
individual prerogative powers and has replaced others with legislation, including the
page 74 University of London

Interception of Communications Act 1985 and the Constitutional Reform and Governance
Act 2010. Nonetheless the remaining powers are still important and extensive.

The best description of the extent of ministerial executive powers is to be found in


the Ministry of Justice report, The governance of Britain, review of the executive royal
prerogative powers: final report, October 2009 at: www.peerage.org/genealogy/royal-
prerogative.pdf The annex to the report contains the following list:

Ministerial prerogative powers

Government and the Civil Service


1. Powers concerning the machinery of Government, including the power to set up a
department or a non-departmental public body.

2. Powers concerning the civil service, including the power to appoint and regulate
most civil servants.

3. Power to prohibit civil servants and certain other Crown servants from issuing
election addresses or announcing themselves, or being announced as, a
Parliamentary candidate or a Prospective Parliamentary candidate.

4. Power to set nationality rules for ‘non-aliens’ – British, Irish and Commonwealth
citizens – concerning eligibility for employment in the civil service.

5. Power to require security vetting of contractors working alongside civil servants on


sensitive projects.

6. Powers concerning the Office of the Civil Service Commissioners, the Security
Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the
Advisory Committee on Business, the Civil Service Appeal Board and the House of
Lords Appointments Commission, including the power to establish those bodies, to
appoint members of those bodies and the powers of those bodies.

Justice system and law and order


7. Powers to appoint Queen’s Counsel.

8. The power to make provisional and full order extradition requests to countries not
covered by Part 1 of the Extradition Act 2003.

9. The prerogative of Mercy.

10. Power to keep the peace.

Powers relating to foreign affairs


11. Power to send ambassadors abroad and receive and accredit ambassadors from
foreign states.

12. Recognition of states.

13. Governance of British Overseas Territories.

14. Power to make and ratify treaties (but note now that ratification is regulated under
the Constitutional Reform and Governance Act 2010).

15. Power to conduct diplomacy.

16. Power to acquire and cede territory.

17. Power to issue, refuse or withdraw passport facilities.

18. Responsibility for the Channel Islands and Isle of Man.

19. Granting diplomatic protection to British citizens abroad.

Powers relating to armed forces, war and times of emergency


20. Right to make war or peace or institute hostilities falling short of war.

21. Deployment and use of armed forces overseas (but note the emergent convention
discussed in Section 7.7.2).
Public law  7  Crown and prerogative powers page 75

22. Maintenance of the Royal Navy.

23. Use of the armed forces within the UK to maintain the peace in support of the
police or otherwise in support of civilian authorities (e.g. to maintain essential
services during a strike).

24. The government and command of the armed forces is vested in Her Majesty.

25. Control, organisation and disposition of armed forces.

26. Requisition of British ships in times of urgent national necessity.

27. Commissioning of officers in all three armed forces.

28. Armed forces pay.

29. Certain armed forces pensions which are now closed to new members.

30. War pensions for death or disablement due to service before 6 April 2005 (section
12 of the Social Security (Miscellaneous Provisions) Act 1977 provides that the
prerogative may be exercised by Order in Council).

31. Crown’s right to claim Prize (enemy ships or goods captured at sea).

32. Regulation of trade with the enemy.

33. Crown’s right of angary, in time of war, to appropriate the property of a neutral
which is within the realm, where necessity requires.

34. Powers in the event of a grave national emergency, including those to enter upon,
take and destroy private property.

Miscellaneous
35. Power to establish corporations by Royal Charter and to amend existing Charters
(e.g. that of the British Broadcasting Corporation, last amended in July 2006).

36. The right of the Crown to ownership of treasure trove (replaced for finds made on
or after 24 September 1997 by a statutory scheme for treasure under the Treasure
Act 1996).

37. Power to hold public inquiries (where not covered by the Inquiries Act 2005).

38. Controller of Her Majesty’s Stationery Office as Queen’s Printer:

uu the power to appoint the Controller

uu the power to hold and exercise all rights and privileges in connection with
prerogative copyright.

39. Sole right of printing or licensing the printing of the Authorised Version of the
Bible, the Book of Common Prayer, state papers and Acts of Parliament.

40. Power to issue certificates of eligibility in respect of prospective inter-country


adopters (in non-Hague Convention cases).

41. Powers connected with prepaid postage stamps.

42. Powers concerning the visitorial function of the Crown.

Archaic prerogative powers


The nature of the prerogative has changed over time. Historically, the Royal
prerogative has been described as the residual powers of the Crown. In particular,
there are some powers, which can be described as residual powers, relating to small,
specific issues or which are a legacy of a time before legislation was enacted in that
area. It is unclear whether some of these prerogative powers continue to exist.

43. Guardianship of infants and those suffering certain mental disorders.

44. Right to bona vacantia.

45. Right to sturgeon, (wild and unmarked) swans and whales as casual revenue.
page 76 University of London

46. Right to wreck as casual revenue.

47. Right to construct and supervise harbours.

48. By prerogative right the Crown is prima facie the owner of all land covered by the
narrow seas adjoining the coast, or by arms of the sea or public navigable rivers,
and also of the foreshore, or land between high and low water mark.

49. Right to waifs and strays.

50. Right to impress men into the Royal Navy.

51. Right to mint coinage.

52. Right to mine precious metals (Royal Mines); also to dig for saltpetre.

53. Grant of franchises (e.g. for markets, ferries and fisheries; pontage and murage).

54. Restraining a person from leaving the realm when the interests of state demand it
by means of the writ ne exeat regno.

55. The power of the Crown in time of war to intern, expel or otherwise control an
enemy alien.

Activity 7.7
Follow the links in the table below. Identify the prerogative discussed and insert in
the right-hand column the number of the relevant prerogative in the above list.
Number of prerogative in
Link to story relating to a prerogative
governance of Britain report
www.steelnavy.com/NNTAtlanticConveyor.htm ‘Atlantic
Conveyor 1982 Guard Container Ship’ (Backer, S.)
www.heraldscotland.com/news/12183960.Mandelson_
acts_to_free_bomber/ ‘Mandelson acts to free bomber’
(27 July 2000)
http://news.bbc.co.uk/1/hi/uk/4272171.stm ‘Passport ban
for two more Britons’
(16 February 2005)
www.cilex.org.uk/about_cilex/who_we_are/royal-
charter CILEx Royal Charter

7.3 Definitions of prerogative powers


We have already seen how difficult it has been for academic commentators and judges
to devise definitions of important topics in public law which are generally accepted.
The same problem applies in the case of prerogative powers.

Dicey defines it as ‘The residue of discretionary or arbitrary authority, which at any


given time is legally left in the hands of the Crown’ (Introduction to the study of the law
of the constitution).

This succinct summary highlights the fact that these are powers retained by the Crown
which have not been abolished by Parliament or replaced by statutes. Apart from
stating that the powers are discretionary, the definition fails to explain how they are
different from powers exercised under statute.

Blackstone states:

We usually understand that special pre-eminence which the King hath, over and above
all other persons, and out of the ordinary course of the common law, in right of his regal
dignity...It must be in its nature singular and eccentrical [special]; that it can only be
applied to those rights and capacities which the King enjoys alone, in contradistinction to
others, and not to those he enjoys in common with any of his subjects.
(Commentaries on the law of England.)
Blackstone makes a key distinction between these powers which only the monarch
or Crown can exercise, such as the right to make war or conduct diplomacy, and those
powers which ordinary members of the public can exercise, for example to make
contracts.
Public law  7  Crown and prerogative powers page 77

Activity 7.8
Find in LexisLibrary or Westlaw Burmah Oil Company v Lord Advocate (1965) and
answer the following questions:
a. Summarise the facts of the case.

b. The case applied the law of which of the following jurisdictions:

uu colonial law in Burma in 1942

uu Scotland

uu England and Wales?

c. What do you think is the significance of the section of the Scottish Act 1703
which Lord Reid quoted?

d. Did Lord Reid believe that the case law supported the use of prerogative powers
in this way without compensation?

7.4 Relationship between prerogative and statutory powers


Parliament can abolish or limit prerogative powers. Alternatively it may choose to pass
legislation replacing a particular prerogative power. Difficulties have arisen where a
prerogative power has not been formally abolished but legislation has been passed
that conflicts with it. In such circumstances, the question arises: can the government
choose to use the prerogative power rather than the statutory power?

In A-G v De Keyser’s Royal Hotel (1920), a hotel had been requisitioned during the First
World War. Requisitioning under the prerogative power would not have required
the government to pay compensation but, inconveniently, there was also a statute
applying to this situation which provided that compensation should be provided. The
House of Lords held that the government was obliged to follow the statute and pay
compensation. Lord Dunedin stated:

It is certain that if the whole ground of something which could be done by the prerogative
is covered by the statute, it is the statute that rules. On this point I think that the
observation of the learned Master of the Rolls [in the Court of Appeal] is unanswerable. He
says ‘What use would there be in imposing limitations if the Crown could, at its pleasure,
disregard them and fall back on prerogative?’

Note that Lord Dunedin referred to the ‘whole ground’ in this quote. Where the
overlap between the prerogative power and the statute is less clear-cut, the courts
may take a different approach. In R v Secretary of State for the Home Department, ex p
Northumbria Police Authority (1989) the prerogative power to keep the Queen’s peace
within the realm was discussed. The government had established a central store
of rubber bullets and CS gas (controversial riot control equipment) to which chief
constables of police forces would have access without requiring the approval of their
police authorities (local bodies established to hold police forces accountable).

Section 4(4) of the Police Act 1964 stated:

The police authority for any such police area may ... provide and maintain such vehicles,
apparatus, clothing and other equipment as may be required for police purposes of the area.

In the Court of Appeal, Croom-Johnson LJ stated that s.4 did not give the police
authority a ‘monopoly’ on supplying equipment to the police in their area. Therefore
the government could use the prerogative power as well.

In a more complex case, R v Secretary of State for the Home Department, ex p the Fire
Brigades Union (1995), the issue related to whether or not the government could use its
prerogative powers in a way that would mean that an Act of Parliament would not be
‘brought into force’. In this case, the Criminal Injuries Compensation Scheme had been
introduced under prerogative powers. The Criminal Justice Act 1988 had provided for a
replacement (more generous) statutory scheme, but had not been brought into force.
The ‘Commencement’ section of the Act had given the Secretary of State the power to
page 78 University of London

bring the Act into force, but in 1994 he announced that he would not do so and would,
in due course, propose legislation to repeal the relevant sections. He would simply
amend the existing scheme.

Lord Browne-Wilkinson in the House of Lords, in the majority judgment, held that the
Secretary of State did not have an unchecked power as to whether or not to bring
relevant sections of the Act into force. He stated:

My Lords, it would be most surprising if, at the present day, prerogative powers could
be validly exercised by the executive so as to frustrate the will of Parliament expressed
in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to
continue with the statutory scheme even though the old scheme has been abandoned.

Despite this judgment, it remains the case that significant changes in the law passed in a
number of statutes have not been brought into force by the relevant Secretaries of State;
in some cases the sections are repealed without ever having been brought into force.

7.5 Judicial review of prerogative powers


The issue of whether or not the courts will be prepared to examine the use of a
prerogative power through judicial review was considered in Council for Civil Service
Unions v Minister for the Civil Service (1984). Here the issue was the removal of the rights
of workers at the Government Communications Headquarters (GCHQ) to belong to
a trade union. These rights were removed by an order in council under a prerogative
power because of the particular sensitivities arising from GCHQ’s role in electronic
intelligence gathering.

Glidewell J in the High Court granted the application for judicial review, highlighting
the government’s lack of consultation, stating:

I can see no reason in logic or principle why an exercise by a Minister of a power conferred
by an Order in Council should not be subject to the same scrutiny and control by the
courts as would be appropriate for the exercise of the same power if it had been granted
by statute.
The government appealed – and was ultimately successful in the House of Lords – on
the grounds that the failure to consult, although against the principles of natural
justice, was taken on the grounds of national security and was therefore ‘non-
justiciable’, that is, something into which the courts could not enquire. Nonetheless
the key result of the case remains that the courts will, in principle, be prepared to
grant a judicial review of the exercise of prerogative power.

In R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (2001) two Orders in Council relating to the troubled history of the Chagos
Islands in the Indian Ocean were challenged. The inhabitants of these islands, part of
the British Indian Ocean Territory colony, were forcibly removed in 1971 when the main
island, Diego Garcia, was leased to the USA as a military base. Although compensation
was later paid, the exiled inhabitants continued to challenge the prerogative Orders in
Council in a number of different legal challenges. In the House of Lords the basic right
to judicial review of Orders in Council themselves (rather than merely executive action
under them, as in the GCHQ case) was accepted. Lord Hoffmann said:

... I see no reason why prerogative legislation should not be subject to review on ordinary
principles of legality, rationality and procedural impropriety in the same way as any other
executive action.
Nonetheless the majority of the House of Lords rejected the applicants’ claim. It held
that the inhabitants’ right of abode was not sufficiently fundamental that it could
not be touched by the Crown’s prerogative powers. In legislating for a colony, the
Crown did not have to have regard only, or even predominantly, for the immediate
interests of the inhabitants. There had been no clear and unambiguous promise that
the Chagossians would be allowed to return and therefore no legitimate expectation
had been created. In the end, as in the GCHQ case, the House of Lords’ deference to the
decisions of the Crown, in this case in relation to foreign affairs, prevailed.
Public law  7  Crown and prerogative powers page 79

Activity 7.9
Review the UK Chagos Support Association website at: www.chagossupport.org.uk
Do you think that the House of Lords’ decision was just?

7.6 Reforming ministerial prerogatives


The House of Commons Public Administration Select Committee ‘Public
Administration – Fourth Report’ (4 March 2004) (www.publications.parliament.uk/
pa/cm200304/cmselect/cmpubadm/422/42202.htm) identified two broad options
for reform. The first approach is based on pragmatism and focuses on subjecting
individual prerogative powers to parliamentary control on a case-by-case basis. The
second approach, based on principle, seeks to introduce comprehensive legislation
subjecting prerogative powers generally to parliamentary control.

7.6.1 The pragmatic approach


The report quotes the former Conservative government minister Lord Hurd as stating:

... on the whole I believe the constitution evolves and is best looked at in the light of
particular criticism, particular mischiefs, that can be identified and then change made,
rather than examining it on a philosophical basis, which rapidly turns artificial.

Lord Hurd went on to highlight the Security Services Act 1989 and the Intelligence
Services Act 1994 as examples of change driven by ‘very practical, cogent reasons’.

Disadvantages of the pragmatic approach


William Hague expressed impatience with the piecemeal approach to legislations in
the report, stating:

one problem with gradualism ... it may not actually be sufficient. The other problem with
gradualism is that it is not moving at all in some areas.

7.6.2 The principled approach


The report recognised the continuing need for ministers to have executive powers
which would have sufficient flexibility to respond quickly to certain urgent and
dangerous events. Parliamentary scrutiny should be proportionate to these needs.

Appendix 1 of the report contains a draft Bill for reform drafted by Professor Brazier.
The Bill would require ministers to list all the ministerial executive powers available to
their departments within six months of the passing of the Act. The list would then be
considered by a parliamentary committee who would be required to draft legislation
providing for appropriate statutory safeguards where required. Such safeguards would
not be expected in all areas of the use of the prerogative. The Bill provides for specific
early legislation in three important areas: the decision to go to war where lives are at
stake, decisions on treaties and the issuing of passports.

The report highlights the importance of Parliament’s right to know precisely what
powers are being exercised by ministers. Without such detailed knowledge, ministers
cannot be held accountable by Parliament.

Disadvantages of the principled approach


Lord Hurd raised the familiar argument used against most constitutional reforms:

I just wonder who in this country, outside of a fairly narrow but very talented and
conscientious range, would feel better off as a result of that; who would sleep more safely
in their beds; and who would think the country was better governed.

He also highlighted the amount of parliamentary time that such an open-ended


reform would take.
page 80 University of London

7.7 Case study: deployment of British armed forces abroad


This relates to one of the most important decisions any government can be required
to make: the decision to go to war. As well as the cost in human lives, there are huge
financial implications and risks arising from such decisions. Nonetheless, successive
British governments have been willing to use British armed forces in a variety of
overseas missions including, of course, Iraq and Afghanistan.

The traditional ‘declaration of war’ seems to be redundant, given developments in


international law, particularly the UN Charter. International law permits the use of
force for self-defence; if authorised by the UN Security Council; or, arguably, to prevent
an overwhelming humanitarian disaster.

Key questions which must be considered in relation to reform are:

uu What are the advantages and disadvantages of parliamentary involvement in the


decision to deploy?

uu What are the advantages and disadvantages of relying on statute rather than
convention in governing the decision to deploy?

7.7.1 The role of the courts


A common concern among the armed forces and their supporters is that litigation
in relation to war powers would undermine morale and operational effectiveness.
These concerns may be overstated given that the courts have generally held that such
decisions are ‘non-justiciable’.

In Chandler v Director of Public Prosecutions (1964) the appellants had been convicted
under s.1 of the Official Secrets Act 1911 following a protest against nuclear weapons at
a US air force base. Lord Reid summarised the generally deferential approach taken by
the courts in relation to the armed forces:

It is in my opinion clear that the disposition and armament of the armed forces are and for
centuries have been within the exclusive discretion of the Crown and that no one can seek
a legal remedy on the ground that such discretion has been wrongly exercised.

In R v Jones (2006) protesters against the Iraq War were prosecuted for breaking into
military bases. They used, as a defence, the argument that they were legally justified in
their actions because they were attempting to prevent the crime of aggression under
international law. Their appeals were rejected by the House of Lords. Lord Hoffmann
emphasised the discretionary nature of the prerogative power to make war and
deploy troops abroad:

It is of course open to the court to say that the act in question falls wholly outside the
ambit of the discretionary power. But that is not the case here. The decision to go to war,
whether one thinks it was right or wrong, fell squarely within the discretionary powers of
the Crown to defend the realm and conduct its foreign affairs.

7.7.2 The convention requiring Parliament to be involved


The decision to invade Iraq was politically very controversial and was discussed in a
number of debates in Parliament beforehand. Consider the following comments about
the status of these debates by Jack Straw, the Leader of the House, after the war in
2007 (Hansard 15 May 2007):

Three debates were on substantive motions: in November 2002; in February 2003; and
then, of course, in the crucial determining debate in March 2003, which confirmed
the decision for military action by a majority of 263. That set of debates on substantive
motions established a clear precedent for the future from which I do not believe there will
be, or could ever be, a departure.

Note also that in 2013 the government was defeated on a proposal to use military force
in Syria.
Public law  7  Crown and prerogative powers page 81

Activity 7.10
Read Jack Straw’s statement again. In his description of this new convention, who
makes the actual decision to deploy armed forces abroad?

7.7.3 Advantages and disadvantages of parliamentary involvement


Although many lawyers and politicians have supported greater parliamentary
involvement in the decision to deploy armed forces abroad, some members of the
armed forces and government have opposed it.

Activity 7.11
Read Chapter 3 of the Select Committee on Constitution Fifteenth Report,
Session 2005–06 at: www.publications.parliament.uk/pa/ld200506/ldselect/
ldconst/236/23605.htm and answer the following questions.
a. Why did some witnesses argue that the current use of the royal prerogative to
make war was less democratic than when the monarch exercised that power
personally?

b. Why was it argued that greater parliamentary involvement would improve the
morale of the armed forces?

c. Admiral Lord Boyce listed six aspects of an open parliamentary debate which he
felt would undermine operational effectiveness. What were they?

d. What was the expected legal impact of legislation requiring parliamentary


involvement in the deployment decision?

e. Why was it argued that greater parliamentary involvement would undermine


the morale of the armed forces?

7.7.4 Proposals for reform


Chapter 5 of the Select Committee on Constitution Fifteenth Report, Session 2005–06
at: www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23607.htm sets
out its recommendations.

Activity 7.12
Read Chapter 5 of the Report and identify the Committee’s key recommendations.
Despite some acceptance by the Labour government of the strength of the arguments,
no changes were made before the coalition government was formed.

7.7.5 Fighting (and debating) the next war?


It was probably inevitable that the report of the House of Lords Constitution
Committee discussed above would be heavily influenced by the controversies of the
Iraq War. Although the House of Commons and the government have not, to date,
formally accepted the proposals of the Committee, it is interesting to review the
behaviour of the coalition government in relation to the deployment of British forces
in March 2011 in assisting the overthrow of Colonel Gaddafi.

Activity 7.13
Read the following BBC report ‘MPs back United Nations action against Col Gaddafi’
(22 March 2011) on the parliamentary debate on 22 March 2011:
www.bbc.co.uk/news/uk-politics-12799937
To what extent do you think the coalition government did, in fact, comply with the
convention proposed by the House of Lords Constitution Committee?
The Cabinet Manual now includes the following statement:

In 2011, the Government acknowledged that a convention had developed in Parliament


that before troops were committed the House of Commons should have an opportunity
to debate the matter and said that it proposed to observe that convention except when
there was an emergency and such action would not be appropriate.
page 82 University of London

The Rt Hon William Hague MP (former Foreign Secretary) states that the government
would ‘enshrine in law for the future the necessity of consulting Parliament on military
action’. On 29 August 2013 there was a debate on a motion on military action in Syria in
the House of Commons and the resounding ‘no’ vote, which was listened to and acted
upon by the then Prime Minister, David Cameron, appears to confirm the existence of
a new convention: that Parliament should have the opportunity to debate decisions
to commit troops to armed conflict, and that the debate should take place before the
troops are committed, except in emergency situations.

The Political and Constitutional Reform Select Committee published a number of


reports on this issue during the 2010–15 Parliament calling upon government to
‘enshrine Parliament’s role in law by bringing forward a parliamentary resolution
setting out Parliament’s role in conflict decisions, as an interim step towards
enshrining the process in law’.

Activity 7.14
Read the Select Committee Report at: www.publications.parliament.uk/pa/
cm201314/cmselect/cmpolcon/892/892.pdf
Do you think it would be advantageous to have this new constitutional convention
enshrined in law? Do you think it is necessary to do so?
No feedback provided.

7.8 Summary
1. Prerogative powers are a residual set of legal powers that are treated by the courts
as being part of the common law. They are derived from monarchical power,
and new prerogative powers can no longer be created. Ministers may be called
to account by Parliament after the exercise of prerogative powers. Prerogative
powers may be abolished or restricted by Acts of Parliament.

2. Statutes, by contrast, are the main alternative form of legal power and are
created by Parliament following debates and votes. Ministers are frequently given
executive powers under statutes.

3. A ‘third source’ of legal authority (also known as the ‘Ram doctrine’) has been
proposed and discussed in several cases, including Malone v Metropolitan Police
Commissioner (1979) and R (on the application of Shrewsbury and Atcham BC) v
Secretary of State for Communities and Local Government (2008). Such a source of
legal authority has been argued to provide for incidental powers that have not
been specifically stated to be unlawful.

4. The Queen’s constitutional prerogatives include the right to advise, warn and
encourage ministers in private. The Queen is expected to accept the advice of
her ministers about the use of her powers. She may have a residual role in the
appointment of a Prime Minister when there is no party with an overall majority in
the House of Commons.

5. The Crown’s legal prerogatives include a number of historical rights such as the
right to sturgeon. More importantly, the Crown is presumed by the courts not to be
bound by an Act of Parliament unless it is expressly or by clear implication stated
to be bound. In addition, the Crown and ‘emanations of the Crown’ are immune
from criminal prosecutions. The Health and Safety Executive uses an alternative
administrative procedure to replace criminal prosecutions of the Crown.

6. Prerogative executive powers are delegated to ministers by the sovereign. The


House of Commons report Taming the prerogative lists 55 separate powers, some of
which are now obsolete, under the headings of:

uu Government and civil service

uu Justice system and law and order

uu Foreign affairs
Public law  7  Crown and prerogative powers page 83

uu Armed forces, war and emergencies

uu Miscellaneous

uu Archaic.

7. Dicey defined prerogative powers as ‘The residue of discretionary or arbitrary


authority, which at any given time is legally left in the hands of the Crown’.
Blackstone referred to the ‘special pre-eminence’ of the king which is ‘singular and
eccentrical’ and which ‘the King enjoys alone, in contradistinction to others’.

8. Where a prerogative power has not been abolished by Parliament but a statute
has been passed that conflicts with it, the courts will normally follow the statute
provided that there is a complete overlap: A-G v De Keyser’s Royal Hotel (1920). If
there is a less clear-cut overlap, the courts may follow the prerogative power: R v
Secretary of State for the Home Department, ex p Northumbria Police Authority (1989).

9. The courts are prepared, in principle, to grant judicial reviews of the exercise of
prerogative power (Council for Civil Service Unions v Minister for the Civil Service
(1984)) and prerogative legislation itself (in the form of Orders in Council in R
(on the application of Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (2001)). However, judicial review was in fact refused in these two cases
as the subject matter (national security and foreign affairs) was held to be
‘non-justiciable’.

10. The House of Commons Public Administration Select Committee report Taming the
prerogative discussed two approaches to reform: a pragmatic approach, based on
incremental change and a principled approach, which would require ministers to
give details of all ministerial prerogative powers and provide for early legislation in
some specific areas with further legislative change to follow.

11. The courts have shown a particular reluctance to challenge the executive in
relation to the important prerogative power to go to war and deploy troops. This
reluctance was demonstrated in Chandler v Director of Public Prosecutions (1964) and
R v Jones (2006).

12. There appears to be a new convention, initially established following the


controversial Iraq War, which requires Parliament to become involved. The
convention, as discussed in the House of Lords Constitutional Committee report
Waging war: Parliament’s role and responsibility, seems to require Parliament to
approve the decisions made by the government either before or shortly after
action has begun. The report discusses the advantages and disadvantages of
formalising this convention, with concerns being expressed by some members
of the armed forces about the effects on security and morale. In 2013, the vote in
Parliament against military action in Syria, which was acted upon by the then Prime
Minister, arguably confirms the existence of this convention.
page 84 University of London

Notes
8 UK primary legislation

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

8.1 The purpose of legislation . . . . . . . . . . . . . . . . . . . . . . . . 87

8.2 Researching the meaning of an Act of Parliament . . . . . . . . . . . . 87

8.3 Policy making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

8.4 Drafting Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

8.5 Framework Bills and the interaction with delegated legislation . . . . . 90

8.6 Pre-legislative scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . 90

8.7 The legislative process . . . . . . . . . . . . . . . . . . . . . . . . . . 90

8.8 Bills of ‘first class constitutional importance’ . . . . . . . . . . . . . . . 91

8.9 Bringing legislation into force . . . . . . . . . . . . . . . . . . . . . . 91

8.10 Post-legislative scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . 92

8.11 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
page 86 University of London

Introduction
‘Why isn’t there a law against it?’ When a non-lawyer wants to use the power of the
law to change bad behaviour or some aspect of society, they will usually envisage an
Act of Parliament. So far in this module guide we have seen the complex variety of
ways in which law is created, including statutory instruments, case law and the role of
constitutional conventions in relation to the laws. Nonetheless, the pinnacle of law in
the United Kingdom’s parliamentary democracy remains primary legislation, that is,
Acts of Parliament which have been debated and voted on by elected members of the
House of Commons and unelected members of the House of Lords.

In this chapter we will first consider what the purpose of legislation is. We will then
look at how we can find the detail of what an Act of Parliament actually says and,
crucially, what aids are available to help us understand it.

Before a Bill is introduced in Parliament in the hope or expectation that it will


eventually be enacted (i.e. become an Act of Parliament), consultations and policy-
making processes are carried out. We will look at the way in which they affect the
creation of a Bill.

We will then review the way in which a Bill is drafted and the process of pre-legislative
scrutiny of draft Bills.

The formal stages which a Bill must pass are then discussed. The convention relating to
Bills of ‘first class constitutional importance’ will be examined, together with the final
stage in which legislation is ‘brought into force’. Finally we will look at post-legislative
scrutiny of Acts of Parliament.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 10: Primary legislation.

Further reading
¢¢ Hazell, R. ‘Who is the guardian of legal values in the legislative process,
Parliament or the executive?’ (2004) Public Law 495.

¢¢ Davis, P. ‘The significance of Parliamentary procedures in control of the


executive – a case study: the passage of Part I of the Legislative and Regulatory
Reform Act 2006’ (2007) Public Law 677.

¢¢ Leyland, P. The constitution of the United Kingdom, Chapter 4: The Crown and the
constitution.

¢¢ Russell, M., D. Gover and K. Wollter ‘Does the executive dominate the
Westminster legislative process?: Six reasons for doubt’ (2015) Parliamentary
Affairs, Volume 69, Issue 2, 1 April 2016, pp.286–308.
Private law  8  UK primary legislation page 87

8.1 The purpose of legislation


One of the key aims of government is to create policy and then to implement it.
Achieving change and meeting promises made to the electorate in election campaigns
can be done in a variety of ways, including using powers already authorised by statute
as well as prerogative powers (see Chapter 7). Often, though, policy can only be
implemented by an Act of Parliament.

The key purposes of Acts of Parliament include the following.

uu To set out public law rights (e.g. the Equality Act 2010 and the Human Rights Act
1998 (HRA)).

uu To impose taxation – taxes can only be raised through legislation.

uu To create powers for public bodies to take action – public bodies include
government agencies and ministers themselves.

uu To regulate commercial activity – although those in business regularly complain


about the burden of ‘red tape’ (i.e. excessive bureaucracy), companies and
businesses do rely on the state to establish rules to enable them to trade in fair
and predictable ways. The Companies Act 2006 is an example of the complexity
of the rules governing the relationship between shareholders, directors and their
companies.

uu To ensure social control – most governments in recent years have seen a


parliamentary timetable without a Criminal Justice Bill of some kind as proof that
they are not doing their job. Other methods of social control include Acts designed
to preserve the environment by restricting destructive behaviour.

Activity 8.1
Go to www.legislation.gov.uk and find the UK Public General Acts of 2011.
a. Identify two Acts whose purpose fits into each of the above categories. Identify
one other Act that does not seem to fit any of them.

Category Act
Public law rights
Taxation
Create powers for public bodies
Regulate commercial activity
Social control
Other

b. Compare the suggested answers to your own. Did they coincide? If not, can you
see why the Act in question might fall into both categories?

8.2 Researching the meaning of an Act of Parliament

8.2.1 Explanatory notes


The www.legislation.gov.uk website contains a number of useful features to help
explain the context of a particular Act and the meaning of individual sections. The
explanatory notes, which are available for most modern Acts (unless they are very
short), are usually very helpful as a starting point in understanding a new Act.

Activity 8.2
Find the explanatory notes to the Fixed-term Parliaments Act 2011 and the section
relating to the dissolution of Parliament. State the section number and explain
what change the section makes to the issuing of writs for elections after dissolution.
page 88 University of London

8.2.2 Hansard
The precise meaning of particular words and phrases in statutes sometimes has to
be considered by the courts. A number of rules of statutory interpretation have been
developed over the years, but one of the most controversial was created in Pepper (Her
Majesty’s Inspector of Taxes) v Hart (1993). Following this case, the courts have been able,
in limited circumstances, to take account of statements made by ministers in Parliament.
The words of ministers, as well as those of all other members of Parliament, are recorded
in Hansard. Useful Hansard references for debates relating to some of the more
important and recent Acts of Parliament are set out at: www.legislation.gov.uk

Activity 8.3
a. Find the explanatory notes to the Fixed-term Parliaments Act 2011 and state the
Hansard references to the second reading in the House of Commons.

b. Search the Hansard archive at: www.parliament.uk/business/publications/


hansard/commons/by-date/commons-hansard-bound-volumes/ and find the
debate on the second reading in the House of Commons. Which government
minister opened the debate?

Further information is available on the background and progress of Bills and Acts on
the Bills before Parliament page at: http://services.parliament.uk/bills/

8.3 Policy making


The main purpose of an Act of Parliament is to give legal force to government policies.
James, S. British government: a reader in policy making. (London: Routledge, 1997) gives
the following description of a policy:

What is a policy? The working definition...is a course of action which the government has
taken a deliberate decision to adopt. This should be distinguished from a government’s
philosophy. A government comes into office with a certain set of ideas and values – its
philosophy – and the government’s policies are the practical plans through which that
philosophy is translated into practice.
This description does, of course, assume that the government is made up of one
political party with a sufficiently coherent set of ideas and values to be termed a
‘philosophy’. In the context of the coalition government, practical policies had to be
created which collectively went some way towards reflecting the ideas and values of
both the Conservative and Liberal Democrat parties. Inevitably the cumulative effect
of such policies may appear to be pulling in two different directions.

Activity 8.4
Review the coalition government’s Programme for Government update ‘The Coalition:
together in the national interest’, produced in January 2013, which set out the original
policies and its own assessment of the extent to which they had been fulfilled:
www.gov.uk/government/publications/the-coalition-government-mid-term-review
a. Pick one chapter of the audit dealing with an area of policy that particularly
interests you and decide to what extent you think the promises were achieved.
In respect of the promises which appear only to have been partly achieved or
else abandoned, why do you think they have not been implemented?

Review the following ITV website commentary on the audit ‘Coalition mid-term audit
report branded “a cover-up”’ (9 January 2013) at: www.itv.com/news/2013-01-09/
coalition-mid-term-audit-report-branded-a-cover-up/
b. Which of the Labour spokesman’s criticisms of the audit do you think carry the
most weight?

When reading the detail of the audit, it is noticeable how often there are references
to consultation. It is an important feature of policy making that interested
parties (commonly referred to as ‘stakeholders’) have the opportunity to provide
information to the government and make representations in favour of or against the
ideas proposed.
Private law  8  UK primary legislation page 89

Activity 8.5
Review the consultation on tree preservation orders by the Department for
Communities and Local Government dated 28 September 2010 at:
www.gov.uk/government/consultations/tree-preservation-orders
Read the responses to Question 5 and identify the argument of the Woodland
Trust. What was the government’s decision on this point (given at the end of the
document)? Why did they make this decision?

8.4 Drafting Bills


Given the importance of Acts of Parliament as the core source of law in the United
Kingdom, it is clearly important that they are drafted well. As you looked at the 2011
Public General Acts at Section 8.1 at www.legislation.gov.uk you may well have felt that
they were wordy and too complex in their language, grammar and structure. There are
a number of reasons why this is the case.

8.4.1 Inherent complexity of the policy


Sometimes policies deal with a range of complex issues. An example is the Localism
Act 2011 which has 241 sections and 25 schedules, and deals with issues ranging from
local government to planning and landlord and tenant law.

8.4.2 Precision and detail is required to protect rights and define


obligations
Generally, the drafting of Bills in the United Kingdom is done with a working
assumption that it is better to give more detail and precise wording rather than make
general statements.

Activity 8.6
Find s.143 of the Police Reform and Social Responsibility Act 2011 at:
www.legislation.gov.uk (and available in LexisLibrary and Westlaw through the
Online Library) and read the BBC news story ‘Parliament Square “Democracy
Village” campers removed’ (17 January 2012) at: www.bbc.co.uk/news/
uk-england-london-16587406
Do you think that s.143 was sufficiently precise and detailed to be valid in the event
of litigation from the protesters?

8.4.3 Incremental change to statutes


A disconcerting feature of many statutes is the way in which they change the law
by inserting new sections into other statutes, or simply amend their wording.
Although an Act will sometimes ‘consolidate’ (i.e. bring together) all the statutes (and
sometimes case law) which previously covered the topic, such an exercise can be
complex and time consuming. When a minister wants a quick change in the law, it is
often simpler to amend the existing statutes.

This approach is not followed in all common law jurisdictions. In Hong Kong, for
example, Ordinances (the equivalent of Acts) do not include dates and are usually
amended directly, rather than by a later Act.

8.4.4 Complexity as a means to limit discretion in implementation


The danger of a ‘broad-brush’ (i.e. generally worded) approach to drafting legislation
is the risk that it may be interpreted in a way that was not intended. Precise and
detailed drafting limits the scope for the courts to challenge the effect of the Act.
page 90 University of London

8.5 Framework Bills and the interaction with delegated


legislation
It is increasingly common for Bills to set out the broad framework of the government’s
policy, leaving the detail to be spelled out in delegated legislation, for example
regulations and rules. Although such an approach can be a useful and pragmatic
way to save parliamentary time, there has been criticism that some Bills authorise
ministers to exercise too much fundamental power.

Activity 8.7
Find the Public Bodies (Abolition of the National Endowment for Science,
Technology and the Arts) Order 2012 at: www.legislation.gov.uk (also available in
Westlaw through the Online Library).
a. Under which section of which Act was this Order created?

b. Read the explanatory note at the end of the order. Do you think that the changes
in this order would have been better made directly by Parliament in an Act of
Parliament?

8.6 Pre-legislative scrutiny


Given the complexity of many Acts and the duty of Parliament to examine and
challenge proposed new legislation, it is clearly desirable that draft Bills should be
prepared, wherever possible, to be examined in detail before they go through the
parliamentary process. If there is more time to examine the detail, it is easier for
errors and problems to be identified and may make it easier to achieve a measure of
consensus, and so save time, in later parliamentary debates.

Activity 8.8
Read the House of Commons Library Standard Note SN05859 ‘Pre-legislative
scrutiny under the coalition government’ (19 June 2013) reviewing the use of
draft Bills by the coalition government at: http://researchbriefings.parliament.uk/
ResearchBriefing/Summary/SN05859
a. What did the coalition agreement say about publishing draft Bills for pre-
legislative scrutiny?

b. What period of pre-legislative scrutiny for draft Bills was the coalition
government committed to?

c. List two coalition government Bills which were not given pre-legislative scrutiny
as draft Bills.

Activity 8.9
Use the UK Parliament website to read about the current draft Bills before Parliament.
No feedback provided.

8.7 The legislative process


Bills start their progression through Parliament in either the House of Commons or the
House of Lords. ‘Money Bills’ (dealing only with taxation or government expenditure)
always begin in the House of Commons, but there is no convention dealing with the
starting point for other Bills.

Activity 8.10
Read the ‘Passage of a Bill’ guide at: www.parliament.uk/about/how/laws/passage-
bill/ and answer the following questions.
a. List the five stages a Bill must pass through in each House.

b. In what circumstances will the House of Commons approve the second reading
of a Bill without debate?
Private law  8  UK primary legislation page 91

c. How do the committee stages in the House of Commons and House of Lords differ?

d. How does the report stage in the House of Commons differ from that in the
House of Lords?

8.8 Bills of ‘first class constitutional importance’


A convention arose in 1945 under which Bills that were ‘of first class constitutional
importance’ should be examined at the committee stage by the whole of the House of
Commons, rather than by a select committee. The advantage of this convention, it has
been argued, is that more MPs are able to take part in the debate than if it was dealt
with in a smaller committee.

Robert Hazell in ‘Time for a new convention: Parliamentary scrutiny of constitutional


Bills 1997–2005’ (2006) Public Law 247 has argued that there are disadvantages as well:

Set against this are some significant disadvantages from taking the committee stage
on the floor [meaning all MPs in a Committee of the Whole House (CWH)]. First is the
curtailment of time. Because time on the floor is prime parliamentary time, this is
inevitably in more scarce supply than when the committee stage is taken upstairs
[meaning dealt with by a select committee]…Linked to the limited time is the limited
number of amendments moved...Measured simply by number of amendments, the
intensity of detailed scrutiny would appear to be a lot greater when a Bill is referred to
Standing Committee.

Activity 8.11
Find the House of Lords Constitution Committee 15th report of 2010–12, The process
of constitutional change at: www.publications.parliament.uk/pa/ld201012/ldselect/
ldconst/177/17702.htm
Answer the following questions on Chapter 3 of the report.
a. Why did the committee think that s.19 of the HRA had been helpful?

b. In Chapter 3 a requirement for ministerial statements is recommended. What


information is to be included in each statement?

8.9 Bringing legislation into force


In an ideal world a draft Bill would be carefully scrutinised and appropriate
amendments made by the time it was introduced into Parliament. While the Bill was
passing through the various stages of the parliamentary process, civil servants and
individuals affected would be given enough time to prepare for the changes to be
introduced. By the date of the Royal Assent, everyone would be ready for the new Act
to be ‘brought into force’ (i.e. take legal effect).

In the real world, of course, there may be many reasons why it is not appropriate for
some or all of the sections of a new Act to come into force on the date of the royal
assent. Sometimes the new Act is abolishing an agency or organisation. The functions
of that organisation may need to be transferred to another organisation and it may be
impracticable for existing work to be handed over on the day of the royal assent. Often
a section of the new Act will give the minister the power to create a new statutory
instrument which may need significant technical detail. The statutory instrument may
not be ready at the date of the Royal Assent.

The ‘commencement’ clause of the new Act will state when the Act will be brought
into force and is usually found near the end. The commencement date may be the
same as the date the Act is passed (given the Royal Assent). The date of enactment is
found in square brackets under the ‘long title’ of the Act in the introductory text.
page 92 University of London

Activity 8.12
Find the commencement section of the Localism Act 2011 at: www.legislation.gov.
uk and answer the following questions.
a. When did s.177 come into force?

b. When did s.240 come into force?

We discussed at Section 7.4 R v Secretary of State for the Home Department, ex p the
Fire Brigades Union (1995), where the government decided that it would never bring
into force the relevant section. Note Lord Browne-Wilkinson’s statement about the
obligations of a minister in relation to the power to bring sections of an Act into force:

In the absence of express provisions to the contrary in the Act, the plain intention of
Parliament in conferring on the Secretary of State the power to bring certain sections into
force is that such power is to be exercised so as to bring those sections into force when
it is appropriate and unless there is a subsequent change of circumstances which would
render it inappropriate to do so.

8.10 Post-legislative scrutiny


In 2006 the Law Commission, Post-legislative scrutiny (Law Com 302), proposed
formalising a system by which government departments examined how effective
pieces of legislation had been at achieving their desired objectives, summarising their
conclusions in memorandums. In 2008 the government agreed to introduce such
memorandums and the coalition government continued this practice.

Activity 8.13
Find the Ministry of Justice memorandum Post-legislative assessment of the Freedom
of Information Act 2000 at: www.gov.uk/government/uploads/system/uploads/
attachment_data/file/217339/post-legislative-assessment-of-the-foi-act.pdf
Find the section dealing with performance against objectives. What were the
objectives of the Act against which performance was assessed?

Activity 8.14
Look again at the Fixed-term Parliaments Act 2011 s.7(4) and (6). Such provisions are
referred to as ‘sunset clauses’ – research what this term means.

Activity 8.15
Read the House of Commons Library Note SN/PC/05232 on post-legislative scrutiny
at: http://researchbriefings.files.parliament.uk/documents/SN05232/SN05232.pdf
a. Do you think there is currently sufficient post-legislative scrutiny?

b. At what stage after enactment of legislation do you think it suitable to have


post-legislative scrutiny (i.e. how many years after an act comes into force)?

No feedback provided.

8.11 Summary
1. The key purposes of legislation include setting out public law rights, imposing
taxation, creating powers for public bodies/ministers, regulating commercial
activity and ensuring social control.

2. Explanatory notes to Acts of Parliament on www.legislation.gov.uk are very helpful


in explaining its context. Hansard, the record of everything that is said during
debates in Parliament, can be used as a tool for statutory interpretation by the
courts following Pepper (Her Majesty’s Inspector of Taxes) v Hart (1995).

3. A policy can be defined as ‘a course of action which the government has taken
a deliberate decision to adopt’. The coalition government’s Programme for
Government set out its original policies.
Private law  8  UK primary legislation page 93

4. There are a number of reasons for the complexity of Acts of Parliament. These
include:

a. the inherent complexity and wide-ranging scope of the subject matter

b. the need for precise detail to protect rights and define obligations

c. the incremental approach to amending existing statutes

d. the use of complexity to limit discretion in implementation.

5. Framework Bills set out the broad policy, but give the responsibility for drafting
detailed statutory instruments to ministers.

6. Pre-legislative scrutiny is an opportunity for draft Bills to be examined by


interested parties before they start the formal parliamentary process.

7. Bills start the parliamentary process in either the House of Commons or House of
Lords. Each Bill must pass five stages in each House:

a. First reading

b. Second reading

c. Committee stage

d. Report stage

e. Third reading.

8. At the end of the parliamentary process, Royal Assent is given.

9. Bills of ‘first class constitutional importance’ are, by convention, examined at


the Committee stage by the whole of the House of Commons and not by a select
committee. The House of Lords Constitutional Committee has argued for a more
formal system of ministerial statements to be made in relation to whether a Bill
provides for significant constitutional change.

10. Many Acts of Parliament allow for delay in sections or the entire Act being brought
into force. The ‘commencement’ section near the end of most Acts sets out when
the different sections will come into force. Occasionally sections or parts of an Act
are never brought into force.
page 94 University of London

Notes
9 UK delegated legislation

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

9.1 Terminology of delegated legislation . . . . . . . . . . . . . . . . . . . 97

9.2 Uses of delegated legislation . . . . . . . . . . . . . . . . . . . . . . . 97

9.3 Drafting secondary legislation . . . . . . . . . . . . . . . . . . . . . . 99

9.4 Parliament’s role in delegated legislation . . . . . . . . . . . . . . . . 99

9.5 The role of the courts in scrutinising delegated legislation


– judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

9.6 The Legislative and Regulatory Reform Act 2006 . . . . . . . . . . . . 101

9.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102


page 96 University of London

Introduction
In this chapter we focus on an area of law which is extremely important for practical
lawyers: delegated legislation. As the name suggests, this is legislation for which the
responsibility has been delegated by Parliament to (usually) government ministers
and their departments. We will briefly review the terminology used for the different
types of delegated legislation. We will focus on the main type of delegated legislation,
known as statutory instruments.

Delegated legislation is used in a number of different ways in the United Kingdom and
we will review, in particular, its role in filling out the detail of ‘framework’ Acts as well
as its controversial use in relation to ‘Henry VIII clauses’ in Acts.

We will discuss the roles of government departments and ministers in the drafting
and approving of individual pieces of delegated legislation. Parliament’s scrutiny
of delegated legislation varies from patchy to non-existent, but we will review the
negative and affirmative procedures as well as the roles of select committees.

Scrutiny of delegated legislation by the courts will be examined briefly, together


with the controversial Legislative and Regulatory Reform Bill – the enactment of this
legislation by Parliament raised fundamental questions about parliamentary scrutiny
of the executive.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 11: Delegated legislation.

Further reading
¢¢ McHarg, A. ‘What is delegated legislation?’ (2006) Public Law 539–61.

¢¢ Barber, N. and Young, A. ‘The rise of prospective Henry VIII clauses and their
implications for sovereignty’ (2003) Public Law 112.
Public law  9  UK delegated legislation page 97

9.1 Terminology of delegated legislation


Every statutory instrument derives its authority from its ‘parent’ or ‘enabling’ Act
which gives the minister or government department the power to create it. Every
statutory instrument must refer to a specific clause in the parent Act that authorised
its creation.

There are three basic types of statutory instrument: regulations, rules and orders.
Although statutory instruments are usually discussed together in legal textbooks, the
different types do serve slightly different functions. Regulations are intended to fill in
the detail of the ‘substantive’ law. Rules are usually used to set out the procedures that
must be followed, particularly in court processes. Typically they are drafted by judges
and other court staff. Orders have various specialised functions, including, as we have
seen, bringing into force sections of Acts after they have been passed. They are usually
very short.

You will find it helpful to use www.legislation.gov.uk under ‘UK Statutory Instruments’
to look at the wording of the statutory instruments discussed in this chapter. Each
statutory instrument has its own reference beginning ‘SI’ and followed by the year
of creation/number reflecting the numerical order of creation in that year. So, for
example, SI 2009/463 refers to the 463rd statutory instrument passed in 2009: the
Aquatic Animal Health (England and Wales) Regulations 2009. If you do not have the
SI number, use the search box in www.legislation.gov.uk

Activity 9.1
Answer the following questions using www.legislation.gov.uk
a. Find 2008 regulations relating to cat and dog fur and give their full name and
SI number.

b. Find the Magistrates’ Courts (Regulation of Investigatory Powers) Rules 2012 and
state who made the rules and the section of the ‘parent Act’ under which they
were made.

c. Find the M5 Motorway (Junctions 29–28) (Temporary Restriction of Traffic) Order


2012 and identify who made it and the section of the ‘parent Act’ under which it
was made.

‘Orders in Council’ refer to legislation approved formally at a meeting of the Privy


Council attended by the Queen and a few senior ministers. Orders in Council include
orders created by ministers as statutory instruments under their respective ‘parent
Acts’ as well as, confusingly, referring to primary legislation created under the Crown
prerogative (see Chapter 7). Formal proclamations are also issued at Privy Council
meetings.

Activity 9.2
Find the Orders approved by the Privy Council on 14 December 2016 at: https://
privycouncil.independent.gov.uk/privy-council/orders/orders-in-council-2016/ and
answer the following questions.
a. Find an Order which is also a statutory instrument (signified by ‘SI’) relating to
the maximum number of judges. Name its parent Act.

b. Which Law of the Channel Island of Guernsey relating to same-sex marriage was
approved by Order?

9.2 Uses of delegated legislation


There are a number of uses of delegated legislation.
page 98 University of London

9.2.1 Commencement
We have already seen at Section 8.9 how many Acts do not ‘commence’ (come into
legal force) on the date the Act is passed, but are instead brought into force in stages
by ministers using commencement orders.

Activity 9.3
Find on www.legislation.gov.uk the Localism Act 2011 (Commencement No 1)
(England) Order 2012.
Why is s.106(3) referred to in this order?
Note that the power to make commencement orders or to delay making them is a
significant legal tool for government ministers.

9.2.2 Filling in the detail of Acts


We discussed ‘framework Bills’ at Section 8.5. These are relatively short, often deal with
very complex issues and give ministers wide powers to make secondary legislation
filling in the detail.

Activity 9.4
Find the Postal Services Act 2011 on www.legislation.gov.uk and answer the
following questions.
a. Which section deals with taxation in relation to the Royal Mail pension plan and
who is authorised to make regulations under that section?

b. Find the Postal Services Act 2011 (Taxation) Regulations 2012 on www.legislation.
gov.uk In the interpretation section what does ‘RMGL’ mean?

c. Review the detail of the Postal Services Act 2011 (Taxation) Regulations 2012. Do
you think that it would have been better to include it within the Postal Services
Act 2011 itself?

9.2.3 Implementation of EU Directives during membership of the EU


EU Directives are a form of primary legislation which we will discuss further in Chapters
11 and 12. As with Acts of Parliament, the changes that they make to national law often
need to be implemented by secondary legislation.

Activity 9.5
Find the Merchant Shipping (Flag State Directive) Regulations 2011 on www.
legislation.gov.uk and identify the EU Directive number which the Regulations are
implementing. What is the purpose of the Directive?

Tip: Do not forget that explanatory notes or memorandums, where available, are a
useful source of background information for statutory instruments.

9.2.4 Amending Acts of Parliament under Henry VIII clauses


Although historians might debate which of England’s kings was the most autocratic,
it is certainly true that King Henry VIII, between executing his wives and introducing
the Protestant version of Christianity to England, had some particularly harsh conflicts
with the law. It is because of this that clauses in some Acts of Parliament are named
after him. These clauses enable ministers to amend Acts of Parliament (primary
legislation) using statutory instruments.

At this point, you may start to question how this fits in with parliamentary sovereignty
(discussed in Chapter 3). One argument in favour of such clauses is that this will enable
ministers to make minor changes and amendments to an Act which would not be
worth the parliamentary time it would take to pass an amendment Act. This argument,
of course, only works if you have confidence that ministers will not abuse this power.
Some might also wonder whether the inclusion of such a clause might encourage
speedy and sloppy drafting practices by parliamentary draftsmen.
Public law  9  UK delegated legislation page 99

Activity 9.6
Find the Building (Repeal of Provisions of Local Acts) Regulations 2012 and answer
the following questions.

Tip: Local Acts follow the same parliamentary process as other Acts but relate to a
particular area only, for example an English county or borough or even a particular
church – see www.legislation.gov.uk/ukla for examples.

a. Which section of which Act authorised the minister to pass regulations


repealing these Local Acts?

b. What was the subject matter of the provisions of the Local Acts that were being
repealed?

c. Do you think it is appropriate for these provisions in Local Acts to be repealed by


way of regulations rather than by way of Act(s) of Parliament?

9.3 Drafting secondary legislation

9.3.1 Role of government departments


Most secondary legislation is drafted by the legal branches of the relevant government
department. This is in contrast to Bills that are drafted by parliamentary counsel. They
will work with experts within their department on the technical detail required and
the practice of scrutiny within the department will vary.

A measure of consistency between statutory instruments has been achieved through


the use of the document Statutory Instruments Practice.

9.3.2 Role of ministers


Occasionally the exact role of ministers in the creation of statutory instruments has been
questioned. Given the technical nature of much of their content and the heavy workload
under which ministers operate, it would not be surprising if sometimes a minister was
compelled to trust their civil servants’ judgment and simply sign where requested.
Nonetheless the courts have affirmed the key constitutional relationship between
ministers and their civil servants whereby ministers take ministerial responsibility.

In Bushell v Secretary of State for the Environment (1981) Lord Diplock stated:

Discretion in making administrative decisions is conferred upon a minister not as an


individual but as a holder of an office in which he will have available to him in arriving
at his decision the collective knowledge, experience and expertise of all who serve
the Crown in the department of which, for the time being, he is the political head. The
collective knowledge, technical as well as factual, of the civil servants in the department
and their collective expertise is to be treated as the minister’s own knowledge, his own
expertise.

9.4 Parliament’s role in delegated legislation


Although it is unlikely that scrutiny by MPs and members of the House of Lords would
have benefited the M5 Motorway (Junctions 29–28) (Temporary Restriction of Traffic)
Order 2012, for example, Parliament does retain some residual powers to scrutinise some
delegated legislation. Note that these powers do not normally allow for amendment of
delegated legislation. Usually the choice is acceptance or complete rejection.

9.4.1 The negative procedure


Some statutory instruments become law on the date stated on them, but will be
annulled (completely removed) if either House (or, in the case of financial matters,
the House of Commons only) passes a motion calling for the annulment within a fixed
period of time (usually 40 days). In the House of Commons, such motions are raised as
‘Early Day Motions’ and will only be debated if there are a large number of signatories.
page 100 University of London

Activity 9.7
Find the Civil Partnerships Act 2004 (Overseas Relationships) Order 2012 on www.
legislation.gov.uk and identify the date on which it was made and the date on
which it came into force.

9.4.2 The affirmative procedure


Under this procedure, which applies to approximately 10 per cent of statutory
instruments, some draft statutory instruments must have the approval of both Houses
(or the House of Commons only in the case of financial matters) before they come into
force. A variation of this procedure applies where the statutory instrument comes into
force immediately, but will cease to be in force if Parliament has not approved it within
a fixed period, usually 28 days.

Activity 9.8
Find the list of statutory instruments subject to affirmative procedure within a
statutory period at: www.publications.parliament.uk/pa/cm/cmsilist/cmsilist.htm
Choose one statutory instrument and note the remaining period within which
parliamentary approval must be given. Check this webpage again after this period
to see whether parliamentary approval was obtained.

9.4.3 Joint Committee on Statutory Instruments


This Committee (with representatives from both Houses) considers whether each
statutory instrument contains any technical drafting flaws. House of Commons
Standing Order 151 states that the flaws to be identified are as follows.

uu It imposes a charge on public revenues or requires payment to a government


department or agency.

uu It is made under a provision in a statute purporting to exclude it from judicial


review.

uu It claims to have retrospective effect when there is no express authority in the


parent Act.

uu There has been unjustifiable delay in its publication or laying before Parliament.

uu There is doubt as to whether it is intra vires (i.e. has been made within the legal
authority of the minister who made it).

uu It is unclear or has defective drafting.

Activity 9.9
Find the report of the Joint Committee on Statutory Instruments on 23 January
2013 at: www.publications.parliament.uk/pa/jt201213/jtselect/jtstatin/108/10803.
htm#a2 and find the discussion of para.6(2), Schedule 1 to the Council Tax Reduction
Schemes (Prescribed Requirements) (England) Regulations 2012 (SI 2012/2885).
Answer the following questions.
a. What was the definition which the Committee questioned?

b. Which definition did the Committee prefer?

c. Do you think the Committee was correct?

9.4.4 House of Lords Select Committee on the Merits of Statutory


Instruments
This Select Committee is required to advise the House of Lords as to statutory
instruments which are:

uu politically or legally important

uu inappropriate in the light of changed circumstances since the parent Act was
passed
Public law  9  UK delegated legislation page 101

uu inappropriately implementing EU legislation

uu failing to achieve their policy objectives.

Activity 9.10
Review the statutory instruments drawn to the special attention of the House in the
21st report of the Committee dated 9 January 2013 at: www.publications.parliament.
uk/pa/ld201213/ldselect/ldsecleg/99/9902.htm and find the discussion of the Family
Procedure (Amendment) (No. 5) Rules 2012. Why do you think the Committee
thought that these rules were sufficiently important to be placed in this category?

9.5 The role of the courts in scrutinising delegated legislation


– judicial review
This area of jurisprudence is discussed in detail in Chapters 15–17. At this stage it is
helpful to be reminded that the key grounds of judicial review which will be applied
are:

uu illegality

uu procedural impropriety (e.g. poor or non-existent consultation)

uu irrationality (illogical or morally unacceptable)

uu contravention of s.6 of the Human Rights Act 1998 (HRA) (signified by a declaration
of incompatibility).

9.6 The Legislative and Regulatory Reform Act 2006


A continuing government priority has been to try to reduce the amount of ‘red tape’
(i.e. unnecessary bureaucracy) affecting business and society at large. In order to
improve regulation, statutory instruments categorised as ‘regulatory reform orders’
are regularly created under the authority of the Legislative and Regulatory Reform Act
2006.

Clause 1 of the Bill, when presented to Parliament, was an extremely wide ‘Henry VIII
clause’ stating:

A Minister of the Crown may by order make provision for either or both of the following
purposes –

(a) reforming legislation;

(b) implementing recommendations of any one or more of the United Kingdom Law
Commissions, with or without changes.

There was considerable opposition in Parliament and from legal commentators who
highlighted the unchecked threat to parliamentary sovereignty. By the time the Bill
was enacted various checks had been imposed, limiting the scope of ministers’ powers
and increasing parliamentary scrutiny.

Activity 9.11
Read the discussion of the Act and the role of the Regulatory Reform Committee at:
www.parliament.uk/business/committees/committees-archive/regulatory-reform-
committee/regulatory-reform-orders/ and answer the following questions.
a. Which are the two Acts of Parliament which, in whole or in part, ministers are
not able to amend or repeal under the Act?

b. What is the ‘super-affirmative’ procedure?

c. What is the maximum period of debate by the House of Commons on a


regulatory reform order which the Regulatory Reform Committee recommends
should not be approved?
page 102 University of London

9.7 Summary
1. There are three basic types of statutory instrument: regulations, rules and orders.
They are organised on www.legislation.gov.uk by year of creation and order of
creation within that year.

2. Regulations fill in the detail of Acts of Parliament, rules set out procedures
(particularly in court proceedings) and orders fulfil specialist functions, including
bringing Acts of Parliament into force (as ‘commencement orders’). Orders in
Council, created by the Privy Council, may be either statutory instruments or
primary legislation.

3. Statutory instruments could be used to implement EU Directives (a form of primary


legislation) during the UK’s membership of the EU.

4. Some Acts of Parliament include ‘Henry VIII clauses’. These controversial clauses
give ministers the power to amend Acts of Parliament by way of statutory
instruments.

5. Statutory instruments are normally drafted by the legal branches of the relevant
government department. A measure of consistency in drafting practices has been
achieved by the use of the document Statutory Instruments Practice. Ministers
retain ministerial responsibility for the content of statutory instruments drafted in
their names by their departments.

6. Parliament retains certain powers to scrutinise statutory instruments through


the use of the ‘negative procedure’ (under which the statutory instrument is valid
when it is ‘made’ but can be annulled by Parliament within a fixed period) and
the ‘affirmative procedure’ (under which Parliament must approve the statutory
instrument before it takes effect).

7. The Joint Committee on Statutory Instruments includes MPs and members of the
House of Lords and reviews statutory instruments for certain technical flaws.

8. The House of Lords Select Committee on the Merits of Statutory Instruments


advises the House of Lords on statutory instruments to which it should pay special
attention, on grounds which include whether or not they are politically or legally
important.

9. The courts scrutinise delegated legislation using judicial review.

10. The Legislative and Regulatory Reform Act 2006 enables ministers to make
‘regulatory reform orders’ to repeal Acts of Parliament in the interests of ‘cutting
red tape’. Safeguards were introduced during the passage of the Bill through
Parliament, which include the use of the ‘super-affirmative procedure’ in certain
controversial cases.
10 Constitutional conventions: case study

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

10.1 The Salisbury-Addison convention . . . . . . . . . . . . . . . . . . . 105

10.2 The Parliament Acts 1911 and 1949 . . . . . . . . . . . . . . . . . . . 106

10.3 House of Commons and House of Lords in conflict . . . . . . . . . . . 107

10.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108


page 104 University of London

Introduction
In this chapter we look at how the UK constitution deals with conflict between the
House of Commons and the House of Lords. Conflict between different ‘chambers’ of
a legislature is not uncommon in many parliamentary and presidential constitutions
and often arises when one chamber is dominated by one political party while the
other is controlled by another. In the United States, conflict between the House of
Representatives and the Senate has been bitter in recent years, and has led to what
many people see as paralysis in government decision making.

In the UK constitution conflicts do not arise as a result of competing democratic


mandates. The House of Commons retains all the democratic authority and MPs are
very keen to stress how this gives them a greater legitimacy than the unelected House
of Lords. Nonetheless the House of Lords is required to approve most Bills (apart from
‘money Bills’ – see Section 3.5) and therefore has the power to cause considerable
problems for the government and House of Commons.

One approach to resolving the issue of conflict between the two Houses would have
been to create a written constitution in which the relationship between an elected
House of Lords and the House of Commons would be clearly defined. Unfortunately
there has never been sufficient political consensus in the House of Commons and the
House of Lords to achieve this goal. Instead conflicts have been resolved in favour
of the House of Commons using two routes: a parliamentary convention and two
statutes.

The Salisbury-Addison convention is used to allow the government to force


controversial Bills (which reflect the political intentions set out in the governing
party’s ‘manifesto’ in the last House of Commons election campaign) through the
crucial second reading stage in the House of Lords.

The Parliament Acts 1911 and 1949 allow the government to enact Bills without the
consent of the House of Lords in the event of deadlock, provided certain conditions
are met.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 13: Case study: what happens when the
Commons and Lords disagree.

Further reading
¢¢ Jowell, J. ‘Parliamentary sovereignty under the new constitutional hypothesis’
(2006) Public Law 562.

¢¢ Young, A. ‘Hunting sovereignty: Jackson v. Her Majesty’s Attorney General’ (2006)


Public Law 187.

¢¢ Ekins, R. ‘Acts of Parliament and the Parliament Acts’ (2007) 122 LQR 90, read
pp.91–99.
Public law  10  Constitutional conventions: case study page 105

10.1 The Salisbury-Addison convention

10.1.1 Origin
The origin of this convention can be traced back to the election in 1945 of a majority
Labour government at a time when there was a very small minority of Labour peers
in the House of Lords. The Labour government had made very clear in the election
campaign its intention to bring about radical changes to British government and
society. The big political question was: how would the Conservative-dominated House
of Lords react?

Viscount Cranborne (who later became the Marquess of Salisbury), following


discussions with the Labour leader in the House of Lords, Viscount Addison, responded
on behalf of the Conservative Opposition in the House of Lords as follows:

Whatever our personal views, we should frankly recognise that these proposals were put
before the country at the recent General Election and the people of this country, with full
knowledge of these proposals, returned the Labour Party to power. The Government may,
therefore, I think, fairly claim that they have a mandate to introduce these proposals. I
believe it would be constitutionally wrong, when the country has so recently expressed
its view, for this House to oppose proposals which have been definitely put before the
electorate.

Note that there was no promise not to oppose measures which were not set out
clearly in the governing party’s manifesto.

10.1.2 House of Lords Act 1999


Underlying what some Conservatives in 1945 might have seen as political timidity by
Viscount Cranborne was a recognition that the House of Lords had no democratic
legitimacy whatsoever. One of the most objectionable elements of its membership
was the presence of hereditary peers (i.e. peers who were members simply because
their fathers had been before them).

The House of Lords Act 1999 introduced a measure of reform to the House of Lords
by limiting the number of hereditary peers to 90. The radical concept of electing
members of the House of Lords was introduced for the first time, although the
franchise for elections on the death of a hereditary peer was given only to the
excluded ex-peers.

The development of this convention was described in the Joint Committee on


Conventions Report, Session 2005–06.

Activity 10.1
Read this report at: www.publications.parliament.uk/pa/jt200506/jtselect/
jtconv/265/26506.htm and answer the following questions.
a. Why in 1993 did Lord Richard query whether the Salisbury-Addison doctrine was
sufficient to guide the House of Lords?

b. What in 1999 did Baroness Jay argue that the convention provided for? Can you
see a political reason for the difference in her view from that of Lord Richard in
1993?

10.1.3 The constitutional significance of a manifesto


Although it sometimes seems that all politicians are always, to some extent,
campaigning and seeking re-election, the tradition of UK elections is to give particular
significance to a relatively short period before the general election. At the start of
this period, all the political parties will set out their ideas and promises in documents
called ‘manifestos’. A great deal of thought and discussion goes into the drafting
of these documents and it is perhaps a pity that so few members of the electorate
actually read them before making their decision to vote.
page 106 University of London

Activity 10.2
Compare the ‘easy read’ version of the Conservative Party’s manifesto in 2017 with
the Liberal Democrats’ 2017 manifesto and the Labour Party’s 2017 manifesto. They
can be found at: www.mencap.org.uk/get-involved/campaign-mencap/elections
Can you find any policies in relation to university education?

10.1.4 The Salisbury-Addison convention and the coalition government


The convention was articulated after the 1945 general election, although a version of
it had been influential before that date. In 1945 the Labour and Conservative parties
completely dominated British politics, both in the popular vote and in the number
of seats in the House of Commons. In such a bipolar political world, parliamentary
conventions could be based around the assumption that there would always be one
winning party in the House of Commons which would seek to implement its manifesto.

In 2010, of course, a coalition of two parties – the Conservatives and Liberal Democrats
– took power. Neither was able to impose its complete manifesto on the government,
and instead they based their legislative programme on the coalition agreement.

Activity 10.3
Consider the blogpost ‘Is the Coalition agreement a manifesto?’ (17 November
2010) by Baroness D’Souza: http://lordsoftheblog.net/2010/11/17/is-the-coalition-
agreement-a-manifesto/ Answer the following questions.
a. What does Baroness D’Souza identify as the three options for the convention
under a coalition government?

b. Why did Lord Pannick, according to Baroness D’Souza, believe that a focus on
the absence of a coalition manifesto was incorrect?

10.2 The Parliament Acts 1911 and 1949


In 1911 conflict between a Conservative-dominated House of Lords and a radical Liberal
government came to a head following two general elections in which the electorate
had supported the Liberal Party’s promises of major social reform. The Prime Minister,
Asquith, was in a strong political position and was able to get the Parliament Act 1911
passed according to the normal procedures by the House of Commons and the House
of Lords.

The Parliament Act 1911 provided for the following changes.

uu The House of Lords lost most of its powers over ‘money Bills’.

uu The House of Lords could only delay other Bills for up to two years over three
parliamentary sessions, after which they would pass into law without the approval
of the House of Lords.

uu The maximum life of a Parliament was reduced to five years.

In 1949 the political conflict was between the Labour government, which was
dominant in the House of Commons, and the Conservative-dominated House of Lords.
The Parliament Act 1911 was insufficient for the Labour government to be able to force
through controversial legislation in the last two years of the Parliament. Using the
procedures of the Parliament Act 1911, s.2 of the Parliament Act 1911 was amended as
follows:

(1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend
the maximum duration of Parliament beyond five years) is passed by the House of
Commons [in two successive sessions] (whether of the same Parliament or not), and,
having been sent up to the House of Lords at least one month before the end of the
session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its
rejection
Public law  10  Constitutional conventions: case study page 107
[for the second time] by the House of Lords, unless the House of Commons direct to
the contrary, be presented to His Majesty and become an Act of Parliament on the
Royal Assent being signified thereto, notwithstanding that the House of Lords have
not consented to the Bill: Provided that this provision shall not take effect unless [one
year has elapsed] between the date of the second reading in the first of those sessions
of the Bill in the House of Commons and the date on which it passes the House of
Commons [in the second of those sessions].

10.2.1 The Hunting Act 2004


The most recent use of the Parliament Acts came during the protracted debates over
proposals to ban hunting with dogs in the Hunting Act 2004. Many members of the
House of Lords were bitterly opposed to the changes which were promoted by MPs
who had strong popular support. It is, perhaps, not surprising that the final approval
of the Act was followed by a legal challenge in Jackson v A-G (2005). The most radical
element of the legal challenge was the creative argument that the Parliament Act 1949
should be treated as delegated legislation because it had not passed all the stages
of parliamentary procedures. As delegated legislation, it would be subject to judicial
review.

The case eventually reached the Court of Appeal and then the House of Lords, where
the importance of the matters discussed was reflected in the fact that nine Law Lords
heard the case.

The House of Lords rejected the appeal and confirmed the validity of the Hunting Act
2004, as well as the Parliament Act 1949.

Activity 10.4
Read the speech of Lord Bingham in Jackson v A-G (2005) and answer the following
questions.
a. What were the words of enactment of the Hunting Act 2004?

b. What were the five ‘propositions’ of the appellants?

c. Why did Lord Bingham not accept that legislation passed using the procedure
laid down in the Parliament Act 1911 was delegated legislation?

d. Why did Lord Bingham refer to Sir Henry Campbell-Bannerman’s resolution in


1907?

e. Why did Lord Bingham refer to the European Convention on Human Rights
(ECHR) when he discussed whether the Parliament Acts could be used to extend
the maximum period of Parliaments beyond five years?

f. In his conclusion, Lord Bingham compared the subject matter of the Acts passed
under the Parliament Act 1911 and Parliament Act 1949. What difference did he
note and why do you think this is the case?

10.3 House of Commons and House of Lords in conflict


A recent incident brought to the fore once again discussion over the appropriate
roles of each chamber when a conflict arises. In October 2015 government plans to cut
tax credits† were defeated in the House of Lords. Peers led by crossbencher Baroness †
Tax credits are a means-
Meacher backed calls (by 307 votes to 277) for the cuts to be put on hold pending an tested benefit paid to workers
independent analysis. It was the first time in 100 years that the Lords had voted down on low incomes and families.
a financial package backed by MPs in the Commons. Working Tax Credit is paid to
those in work and Child Tax
This led to debate as to the appropriate role of the Lords (in modern times usually
Credit to parents.
viewed as a revising chamber) vis-à-vis the Commons. The overall debate which might
have been extremely interesting from a constitutional perspective was weakened by
dispute as to whether the legislation could be correctly thought of as a ‘money bill’
given that the proposed changes were not in primary legislation.
page 108 University of London

You might like to read more about this and a good starting point is this BBC news
report: www.bbc.co.uk/news/uk-politics-34614716

These events arguably led to the commissioning of the Strathclyde review


on secondary legislation and the relationship between the House of Lords
and the House of Commons: www.gov.uk/government/publications/
strathclyde-review-secondary-legislation-and-the-primacy-of-the-house-of-commons

Activity 10.5
Please read the government response to the Strathclyde review and identify
whether or not its recommendations are to be implemented and the reasons for
this given by the government.
No feedback provided.

10.4 Summary
1. The Salisbury-Addison convention, which was articulated after the 1945 general
election, provides that the House of Lords should not oppose proposals which have
clearly been put to the electorate in the previous general election.

2. The key document referred to in relation to the convention is the ‘manifesto’ of the
party which formed the government.

3. The creation of the coalition government comprising the Conservatives and Liberal
Democrats in 2010 cast doubt on the continued existence of the convention,
although some politicians and commentators argued that the coalition agreement
should take on the constitutional significance of the winning party’s manifesto.

4. The Parliament Act 1911 removed most of the powers of the House of Lords in
relation to ‘money Bills’ and limited the period during which it could delay other
Bills to two years over three parliamentary sessions. The maximum period of a
Parliament was reduced to five years.

5. The Parliament Act 1949 amended the Parliament Act 1911, reducing the maximum
period of delay to one year over two parliamentary sessions.

6. In Jackson v A-G (2005) the validity of the Hunting Act 2004 was challenged. As this
Act had been passed under the Parliament Act 1949, the appellants argued that the
1949 Act was, in reality, delegated legislation. The appeal was rejected by the House
of Lords which held that the 1911 Act had created a new means of enacting primary
legislation.
11 EU legal and governmental order

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

11.1 Background to the European Union . . . . . . . . . . . . . . . . . . . 111

11.2 The European Council . . . . . . . . . . . . . . . . . . . . . . . . . . 111

11.3 The Council of the European Union/Council of Ministers . . . . . . . . 112

11.4 The European Commission . . . . . . . . . . . . . . . . . . . . . . . 113

11.5 Accountability of the EU institutions . . . . . . . . . . . . . . . . . . 114

11.6 Treaty on European Union (TEU) and Treaty on the Functioning of the
European Union (TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . 116

11.7 UK ‘opt-outs’ from the Treaties . . . . . . . . . . . . . . . . . . . . . 116

11.8 The treaty-making process . . . . . . . . . . . . . . . . . . . . . . . 117

11.9 European Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . 117

11.10 The ‘ordinary legislative process’ – how the Commission and Parliament
create law jointly . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

11.11 Types of EU legislation . . . . . . . . . . . . . . . . . . . . . . . . . 118

11.12 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119


page 110 University of London

Introduction
In this chapter we turn to the controversial area of EU law. We will briefly review
the background to the development of the European Union, from its origins as the
European Coal and Steel Community and then the European Economic Community,
before examining the main executive institutions: the European Council, the Council of
the European Union and the Commission.

We will return to the theme of accountability, focusing on the scrutiny of the executive
bodies by the UK Parliament. European treaties are an important source of EU law and
we will consider the two key current treaties, as well as the treaty-making process and
‘opt-outs’.

The main legislative body of the European Union – the European Parliament – will be
discussed, and we will review how MEPs are elected in the light of criticism of the
Parliament’s lack of democratic legitimacy.

The initiation of legislation by the Commission will be considered, together with the
main method of creation via the ‘ordinary legislative procedure’. Finally we will look at
examples of the main types of primary EU legislation, Directives and Regulations.

Note that a slim majority of the electorate voted to leave the EU in the June 2016
referendum. Once the UK has left the EU, it will maintain some sort of legal relationship
with the EU, and so it remains vital to understand the institutional set up of the EU.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapters 7: Government and accountability and
12: European Union treaties and legislative processes.

Further reading
¢¢ Craig, P. ‘Brexit and the constitution’ in Jowell, J., D. Oliver and C. O’Cinneide
(eds) The changing constitution.

¢¢ Collignon, S. ‘Europe’s legitimacy crisis’ (2005) 51 Euro Law 28.


Public law  11  EU legal and governmental order page 111

11.1 Background to the European Union


In order to understand the European Union in the 21st century, a little knowledge of
European geography is helpful.

See http://europa.eu/about-eu/countries/ for the dates of accession of the countries in


the EU.

Activity 11.1
Answer the following questions.
a. List the countries which were first to join the original European Coal and Steel
Community in 1952.

b. Which countries joined the European Economic Community at the same time as
the United Kingdom?

Activity 11.2
Listen to the audio presentation on the VLE ‘Outline history of the European Union’.
No feedback provided.

Key EU jargon

Sovereignty

This is the legal power of national governments free from pressure or influence from
outsiders (e.g. foreign governments or international bodies).
Intergovernmentalism

Arrangements under which national governments cooperate to achieve common goals.


Supranationalism

Nation states work together and give up a measure of control over the direction and
decisions of the group. There is therefore some degree of integration and loss of
sovereignty.
Subsidiarity

This principle is intended to ensure that decisions are taken as closely as possible to the
citizen and that constant checks are made to verify that action at EU level is justified in
light of the possibilities available at national, regional or local level. Specifically it is the
principle whereby the European Union does not take action (except in the areas that
fall within its exclusive competence), unless it is more effective than action taken at
national, regional or local level.

11.2 The European Council


The European Council is made up of the 28 heads of state or government (note that in
constitutional monarchies such as the United Kingdom, it is the head of government –
the Prime Minister – and not the Queen who attends), its president and the president
of the European Commission.

The function of the European Council, under Article 15 of the Treaty on European Union
(TEU), is as follows.

The European Council shall provide the Union with the necessary impetus for its
development and shall define the general political directions and priorities thereof. It shall
not exercise legislative powers.

We can see that its role is primarily executive, although many of the functions usually
attributed to national governments, such as the UK, are not covered.

Activity 11.3
Read about the European Council on www.consilium.europa.eu/en/european-
council/ and answer the following questions.
a. Who is the president of the European Council?

b. How often does the European Council meet?


page 112 University of London

Activity 11.4
Read the article ‘EU agrees historic budget deal after all-night talks’ (Wyatt, N.
and I. Traynor) on the Guardian newspaper website about the European budget
negotiations on 8 February 2013: www.guardian.co.uk/world/2013/feb/08/
european-union-budget-night-talks
Answer the following questions.
a. By how much did the European Council agree to reduce the EU budget?

b. Which European-wide growth programme was cut during the negotiations?

c. How would you describe the role of the president of the European Council in
these negotiations?

11.3 The Council of the European Union/Council of Ministers


The Council of the European Union, also known as the Council of Ministers, is the
European Union’s primary decision-making institution and it is referred to in the
treaties as ‘the Council’. Article 16 of the TEU states:

(1) The Council shall, jointly with the European Parliament, exercise legislative and
budgetary functions. It shall carry out policy-making and coordinating functions as laid
down in the Treaties.

Each member state has one representative. Unless the treaties provide otherwise, the
voting system is by qualified majority voting (QMV). Depending on the subject matter
to be discussed, the governments will send the appropriate minister for that area of
responsibility.

11.3.1 System of QMV


Under QMV a qualified majority is defined as at least 55 per cent of the members of the
Council, consisting of at least 16 of them, and representing member states comprising
at least 65 per cent of the population of the European Union.

Activity 11.5
Go to the voting calculator on the Council of Ministers section of the europa.
eu website at: www.consilium.europa.eu/en/council-eu/voting-system/voting-
calculator/ Select the voting rule ‘qualified majority’ and use the voting calculator
to identify whether the proposing member states will succeed, assuming the votes
are as follows.

In favour Against Abstaining


Austria (1995) France United Kingdom
Belgium (1952) Germany Italy
Bulgaria (2007) Czech Republic Romania
Cyprus Finland Croatia
Denmark Latvia Sweden
Estonia Hungary
Greece Malta
Lithuania Slovenia
Ireland Netherlands
Poland Luxembourg
Portugal Spain
Slovakia

a. Did the motion succeed?

b. If all the abstaining countries had been persuaded to vote in favour of the
motion, would the result have been different?

c. Do you think that QMV is an appropriate method of voting for a group of


member states with hugely varying populations?
Public law  11  EU legal and governmental order page 113

11.3.2 Transparency and accountability of Council of Ministers


Article 16 of the TEU includes a transparency clause:

The Council shall meet in public when it deliberates and votes on a draft legislative act.

The Council also meets in public when its ministers debate important issues affecting
the EU and its citizens, or when they discuss the Council’s work programme, the
priorities of its Presidency and the Commission’s work programmes and policy strategy.

Increasingly, the Council is using its website to give the European public, as well as
legislators in the parliaments of member states, greater information on what the
national ministers are saying and voting on.

Activity 11.6
Find the 3593rd Council meeting on 29 January 2018 at: www.consilium.europa.eu/
en/meetings/agrifish/2018/01/29 and read the ‘provisional agenda’.
Answer the following questions:
a. Which of the agenda items were open to the public?

b. Read the press release ‘Skimmed milk powder: Council modifies rules on public
intervention to help the market’. What was the purpose of this intervention?

c. Watch the video ‘Highlights from the Agriculture and Fisheries Council of 29
January 2018’.

11.4 The European Commission

11.4.1 Functions
The Commission has two broad functions. It includes Directorates-General which are
a permanent bureaucracy that manages the administrative and policy affairs of the
European Union. The commissioners, one from each member state, are an executive
branch of the European Union. The commissioners are responsible for initiating and
drafting legislation, acting in the interests of the European Union as a whole.

Commissioners are appointed by the national governments, but Article 17(3) of the TEU
states:

...the members of the Commission shall neither seek nor take instructions from any
Government or other institution, body, office or entity.

Activity 11.7
Go to the Directorate-General for Climate Change (CLIMA) at:
http://ec.europa.eu/clima/index_en.htm Click on the ‘EU Action’ link, then select
‘Transport’ from the menu. Answer the following questions.
a. When did emissions from transport start to decrease?

b. Which sector of transport has the highest level of emissions?

c. What are the priorities within this strategy?

d. Do you think this webpage explains the issues and policies sufficiently clearly?

Activity 11.8
Find the details of the current European commissioners at:
http://ec.europa.eu/commission and answer the following questions.
a. Who is the President of the European Commission?

b. Who is the Commissioner for Environment, Maritime Affairs and Fisheries?


page 114 University of London

11.4.2 Removal of the Commission and individual commissioners


Although each European Commission is appointed for a period of five years, Article 234
of the TFEU gives the European Parliament the power to dismiss the entire Commission
part of the way through its term of office. This drastic power has never been formally
exercised, although in 1998 scandals over fraud in the European budget led to a highly
critical report by a committee appointed by the European Parliament. When the
report was published the Commission, led by Jacques Santer, resigned en masse.

In response to this crisis, where the bulk of the criticism had been directed at only
one commissioner, Ms Cresson, the Treaty of Nice provided that the president of
the Commission now had the power to demand the resignation of an individual
commissioner (Article 17(6) of the TEU).

Activity 11.9
Read the BBC website article ‘EU health commissioner John Dalli quits over fraud
enquiry’ (16 October 2012): www.bbc.co.uk/news/world-europe-19964248
Answer the following questions.
a. Which commissioner was forced to resign?

b. Why was he forced to resign?

c. Which organisation investigated the allegations?

11.5 Accountability of the EU institutions


Democratic accountability can be demonstrated in the European Union by the direct
elections to the European Parliament, as well as the indirect influence of national
governments who have also been elected.

The question remains, however, whether this is enough to establish social acceptance
of the European Union by the peoples of the nation states. Social acceptance does not,
of course, mean that everyone agrees with every EU policy and piece of legislation, but
it should imply that most people accept that the European Union is acting broadly in
the overall interests of themselves and their country.

In some member states there are vociferous opponents of EU membership and


the whole concept of European unity. A wider problem may be the lack of a sense
of a single European identity among the populations of the individual states. It is
noticeable that almost all major sports teams compete only as nation states (with the
exception of golf where a ‘European’ team regularly plays the Americans).

In order to try and engage European citizens more directly in EU policy, the European
Citizens’ Initiative was introduced.

Activity 11.10
Go to the European Citizens’ Initiative website at: http://ec.europa.eu/citizens-
initiative/public/welcome and find the open initiatives. Find an initiative which is
on a topic that interests you and answer the following questions:
a. What is the title of the initiative?

b. When will the initiative close?

c. If you are a citizen of an EU member state and agree with the initiative, follow
the links to sign it. How straightforward was the process?

d. Does the subject matter of the initiative seem relevant to citizens in all member
states?

11.5.1 Accountability to the UK Parliament during membership of the EU


The UK Parliament has set up three committees to scrutinise EU policies and
legislation.
Public law  11  EU legal and governmental order page 115

(1) The House of Commons European Scrutiny Committee


The objective of this committee of 16 MPs is to ensure that the House of Commons is
informed of EU proposals likely to affect the United Kingdom, and to influence and
hold UK ministers to account for these proposals.

Activity 11.11
Find the 7th report of the 2015–16 session by the committee at:
www.parliament.uk/business/committees/committees-a-z/commons-select/
european-scrutiny-committee/publications/
Find the section of the report dealing with data protection in the EU and answer the
following questions.
a. What is the committee’s assessment of the matter?

b. What did the ‘Data Protection Package’ proposed by the European Commission
include and when was it proposed?

(2) House of Commons Foreign Affairs Committee


This select committee monitors the work of the Foreign and Commonwealth Office,
and its remit therefore includes EU matters as well as foreign policy outside Europe.

Activity 11.12
Read the transcript of evidence to the Committee on the Foreign Affairs
Implications of and for a Separate Scotland at: www.publications.parliament.uk/pa/
cm201213/cmselect/cmfaff/c643-ii/c64301.htm
Answer the following questions.
a. Which European country, where secession was also a political issue, did
Professor Walker mention in response to Q90?

b. Find Professor Sir David Omand’s response to Q140. Which two European ‘acquis’
(see http://eur-lex.europa.eu/summary/glossary/acquis.html for the definition of
this term) did he state an independent Scotland would have to accept?

(3) House of Lords European Union Select Committee


This committee conducts regular and detailed inquiries into specific EU proposals
working through seven sub-committees which specialise in particular areas of policy.

Activity 11.13
Find the EU Sub-committee D – Agriculture, Fisheries, Environment and Energy 4th
Report Leaving a bitter taste? The EU sugar regime at: www.publications.parliament.
uk/pa/ld201213/ldselect/ldeucom/44/4402.htm
Find the conclusions and recommendations section of the report. What was the
basic proposal of the Commission and did the sub-committee agree with it?

11.5.2 Subsidiarity and the role of national parliaments


Subsidiarity is defined in Article 5(3) as follows

Under the principle of subsidiarity, in areas which do not fall within its exclusive
competence, the Union shall act only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States, either at central level or at
regional and local level, but can rather, by reason of the scale or effects of the proposed
action, be better achieved at Union level.

Note the emphasis is on allocating responsibility to the appropriate level of


government on efficiency grounds, which may be the national parliament or regional/
local government.

Following the Lisbon Treaty, a system of ‘yellow and orange cards’ has been introduced
that allows national parliaments to express concerns to the relevant EU institution in
relation to the issue of subsidiarity.
page 116 University of London

Activity 11.14
Read the response by the European Commission to the ‘yellow card’ issued
in relation to the proposal to establish a European Public Prosecutor’s Office
(EPPO): http://ec.europa.eu/archives/commission_2010-2014/sefcovic/headlines/
news/2013/11/2013_11_27_public_prosecutor_en.htm
Then try to find the answers to the following questions.
a. How many different countries had Parliamentary chambers which raised
concerns that resulted in the issuing of a yellow card?

b. Did the proposal to establish an EPPO progress?

11.6 Treaty on European Union (TEU) and Treaty on the


Functioning of the European Union (TFEU)
These are the currently applicable treaties and are designed to complement each
other. The TEU sets out principles and objectives, the institutional framework and the
Common Foreign and Security Policy. The TFEU focuses on how the European Union is
to function. Given their importance and complexity, you should familiarise yourself
with their basic structure.

Activity 11.15
Go to the Treaty on European Union (consolidated version) at: http://eur-lex.
europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2012.326.01.0001.01.
ENG#C_2012326EN.01001301 and complete the table below, indicating the subject
matter of each Article listed.

Article number Subject matter

18

35

Activity 11.16
Go to the Treaty on the Functioning of the European Union at http://eur-lex.
europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2012.326.01.0001.01.
ENG#C_2012326EN.01004701 and answer the following questions.
a. Which are the areas of exclusive competence for the European Union listed in
Article 3?

b. What principle is set out in Article 13? How is it qualified?

c. What are the objectives of the Common Agricultural Policy as set out in Article 39?

11.7 UK ‘opt-outs’ from the Treaties


During the various treaty negotiations which led up to the TEU and TFEU, the UK
Government chose to opt out of some aspects of EU law and policy. The opt-outs of
the United Kingdom (and other countries) are set out in protocols at the end of the
treaties.

Note the following important opt-outs set out in the following protocols to the TFEU:

uu Protocol 18 – the United Kingdom is not obliged to adopt the Euro.

uu Protocol 20 – the United Kingdom and Ireland are not obliged to join the Schengen
agreement removing border controls between the participating member states.

uu Protocol 22 – the United Kingdom and Ireland do not always take part in or are
not always bound by decisions relating to policies on border checks, asylum and
immigration.
Public law  11  EU legal and governmental order page 117

Activity 11.17
Find Article 10 of protocol 36 of the TFEU at http://eur-lex.europa.eu/legal-content/
EN/TXT/?uri=uriserv:OJ.C_.2012.326.01.0001.01.ENG#C_2012326EN.01004701 and
answer the following questions.
a. Which area of policy and law did this opt-out deal with?

b. By what date must the United Kingdom notify the Council of the European Union
that it does not wish to accept the European Union’s powers under the treaty in
this area of policy and law?

Activity 11.18
Read the January 2013 report from the Centre for European Reform Britain’s 2014
justice opt-out: why it bodes ill for Cameron’s EU strategy (Brady, H.) at:
www.cer.org.uk/sites/default/files/publications/attachments/pdf/2013/final_brady_
jha_20march13-7124.pdf
Do you agree with the author’s criticism? Give reasons for your view.

11.8 The treaty-making process


There are three main elements to the process. An inter-governmental conference
will be called at which senior politicians, diplomats and civil servants will negotiate
and draft the terms of the new treaty. Signatures and a process of ratification by
parliaments of the individual states will follow. Finally, in a number of countries,
constitutional changes must also be approved by a referendum.

Activity 11.19
Read the BBC story ‘Brown belatedly signs EU treaty’ (13 December 2007) about the
former UK Prime Minister Gordon Brown at the signing of the Treaty of Lisbon at:
http://news.bbc.co.uk/1/hi/uk_politics/7141279.stm and answer the following questions.
a. Why was Gordon Brown criticised in relation to the signing ceremony?

b. What was the main political criticism by Nigel Farage of UKIP?

11.8.1 European Union Act 2011


The European Union Act 2011 (EUA 2011) introduces a requirement to hold a
referendum on any significant future transfer of power to the European Union (ss.2, 3
and 6). The requirements of EUA 2011 include an Act of Parliament and a referendum
after the Act.

Activity 11.20
Find s.4 of the EUA 2011 on www.legislation.gov.uk/ukpga/2011/12/contents and
identify the three types of change that will not require a referendum.

11.9 European Parliament


The European Parliament consists of Members of the European Parliament (MEPs)
directly elected, under a variety of voting systems, by the electorates of the member
states. Elections take place every five years.

The number of MEPs allocated to each member state is only roughly proportionate
to the size of each state’s population. In general, smaller nations have more MEPs
per head of population than larger ones. At its starkest, the average Maltese has
significantly more influence through their MEPs than the average German.

The European Parliament has had its legitimacy challenged on the grounds of lack of
support. In some member states, in particular the United Kingdom, the rate of voter
participation has been much lower than for elections for national parliaments. There
has been a perception that the European Parliament is a home for second-rate or
semi-retired national politicians.
page 118 University of London

Activity 11.21
Identify one of the political groups in the European Parliament at:
www.europarl.europa.eu/portal/en and answer the following questions.
a. Summarise in your own words the group’s political philosophy.

b. Find out which countries the group’s MEPs come from. Does the group have
representation from most major member states?

Activity 11.22
Look through the European Parliament’s website and try to find the answers to the
following questions.
a. When were the most recent elections for the European Parliament?

b. What was the overall voter turnout in these elections?

c. What was the turnout in the United Kingdom?

11.10 The ‘ordinary legislative process’ – how the Commission


and Parliament create law jointly
The ordinary legislative process is a method of legislating which relies on compromise.
The key stages are set out below.

uu The Commission sends its proposal to Parliament and the Council.

uu They consider it and discuss it on two successive occasions.

uu After two readings, if they cannot agree, the proposal is brought before a
Conciliation Committee made up of an equal number of representatives of the
Council and Parliament.

uu Representatives of the Commission also attend the meetings of the Conciliation


Committee and contribute to the discussions.

uu When the Committee has reached agreement, the text agreed upon is sent to
Parliament and the Council for a third reading, so that they can finally adopt it as
a legislative text.

uu The final agreement of the two institutions is essential if the text is to be adopted
as a law.

uu Even if a joint text is agreed by the Conciliation Committee, Parliament can still
reject the proposed law by a majority of the votes cast.

Activity 11.23
Read the press release of the Council of the European Union following the Economic
and Financial Affairs (Budget) and Conciliation Committee meeting on 13 November
2012 at:
www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ecofin/133472.pdf
Answer the following questions.
a. Who was the president of the meeting?

b. Why was the conciliation committee unable to reach an agreement with the
European Parliament?

11.11 Types of EU legislation


There are two main types of secondary EU legislation which have different effects on
national law.
Public law  11  EU legal and governmental order page 119

11.11.1 Regulations
It is important not to confuse an EU Regulation with UK regulations, as discussed
in Chapter 9. An EU Regulation is a form of law which is ‘directly applicable’. The UK
Parliament does not have to take any action before an EU Regulation becomes law.

11.11.2 Directives
Directives are a form of legislation directed at member states ordering them to reform
their laws in order to match a set result. Differing member states may already have
laws covering the area of law and may need to make more or less drastic changes to
reach the common standard. Member states have a measure of discretion as to how
they implement the Directive. In the United Kingdom, Directives may be implemented
by Acts of Parliament or, more commonly, by statutory instruments.

Activity 11.24
Find the text of Regulation (EC) No. 1223/2009 at: http://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX:32009R1223 and answer the following questions.
a. Why was Council Directive 76/768/EEC being replaced?

b. What is the objective of the Regulation?

Find the Conservation of Habitats and Species Regulations 2010 (SI 2010/490) at:
www.legislation.gov.uk/uksi/2010/490/contents/made and answer the following
questions.
c. Compare the language of this statutory instrument to that of Regulation (EC) No
1223/2009. How do they differ?

d. Which EU Directive is referred to in the introductory text of the Conservation of


Habitats and Species Regulations 2010?

11.12 Summary
1. The European Council is made up of the heads of state or heads of government
of each member state. Its function is to define the general political direction and
priorities of the European Union.

2. The Council of the European Union (Council of Ministers) has one ministerial
representative from each member state’s government. The ministerial
representatives vary according to the subject matter of the Council’s meetings.
Its function is to exercise legislative and budgetary functions and make policy. It
shares this function with the European Parliament.

3. The system of qualified majority voting (QMV), as used by the Council of the
European Union, is designed to reflect a number of factors, including the number
of member states in favour as well as the proportions of the total EU population
represented by the member states.

4. The European Commission is made up of commissioners who are appointed by, but
not accountable to, the governments of the member states. The bureaucracy of
the European Union is managed through the Directorates-General. Their primary
function is to initiate and draft legislation on behalf of the whole European Union.

5. Democratic legitimacy and social acceptance of the European Union is challenged


in some, though not all, member states, including in the United Kingdom. The
European Union has used the European Citizens’ Initiative to try to engage EU
citizens more effectively.

6. Accountability to the UK Parliament is achieved through the following committees:

a. House of Commons European Scrutiny Committee

b. House of Commons Foreign Affairs Committee

c. House of Lords European Union Select Committee.


page 120 University of London

7. The key current treaties are the Treaty on European Union (TEU) and the Treaty on
the Functioning of the European Union (TFEU).

8. The United Kingdom and other member states have obtained ‘opt-outs’ from
various aspects of EU law and policy, including the requirement to join the Euro.
The ‘opt-outs’ are set out in protocols to the TFEU.

9. Treaties are created and amended in complex negotiations at inter-governmental


conferences.

10. The European Union Act 2011 attempts to ‘entrench’ a requirement to hold
a referendum after any future significant treaty change affecting the United
Kingdom.

11. The European Parliament is elected directly by the electorates of the member
states every five years. It creates law, working with (or sometimes against) the
Council of the European Union, using the ordinary legislative process.

12. Regulations are a form of EU secondary legislation which is directly enforceable


immediately. Directives must be implemented by member states through their
legislatures.
12 EU law and UK constitutional law

Contents
‘BREXIT’: Britain leaves the EU . . . . . . . . . . . . . . . . . . . . . . 122

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

12.1 Key principles guiding national courts in relation to EU law . . . . . . . 123

12.2 Contradictions between parliamentary sovereignty and EU law . . . . 123

12.3 Responses of UK courts to the conflict between parliamentary


supremacy and the doctrine of direct effect . . . . . . . . . . . . . . 124

12.4 European Union law – the ‘pick and mix’ approach . . . . . . . . . . . 125

12.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126


page 122 University of London

‘BREXIT’: Britain leaves the EU


In the UK referendum of June 2016, the electorate voted (by a small majority) to leave
the EU. The date for withdrawal was fixed at 29 March 2019, however this deadline was
extended.

Once Britain has left the EU, it will no longer be bound by new decisions of the Court
of Justice of the EU, or be bound by any new EU law. Under the terms of the European
Union (Withdrawal) Act 2018, existing EU law will be converted into domestic law,
which will then be capable of being amended by the UK Parliament and devolved
legislatures.

However, before the UK can leave the EU under negotiated terms, the Withdrawal
Agreement concluded between the UK government and the EU must be agreed by
the House of Commons, a Withdrawal Act must then be passed by Parliament and the
Agreement ratified by Parliament under the terms of the Constitutional Reform and
Governance Act 2010. If the House of Commons does not agree to the Withdrawal
Agreement, Britain could leave the EU without any agreement. Because of the
perceived economic and political difficulties this would cause, many Members of
Parliament are attempting to ensure that this will not happen.

At the time of writing, early 2019, the situation is very unclear and you should follow
developments through the UK Parliament website (www.parliament.uk) and in the
media.

The following chapter discusses the relationship between the UK legal systems and
the EU during Britain’s membership from January 1973.

Introduction
In this chapter we will begin by examining two key principles which guide national
courts in dealing with EU law: direct effect and supremacy. We will then consider the
contradictions between the doctrine of parliamentary sovereignty and EU law, before
reviewing the ways in which the UK courts have attempted to reconcile them.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 18: European Union law in the United
Kingdom courts.

Essential reading
¢¢ Gordon, M. ‘The European Union Act 2011’ at: http://ukconstitutionallaw.
org/2012/01/12/mike-gordon-the-european-union-act-2011/

Further reading
¢¢ Elliot, M. ‘Parliamentary sovereignty in a changing constitutional landscape’ in
Jowell, J., D. Oliver and C. O’Cinneide (eds) The changing constitution.

¢¢ Craig, P. ‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991)


11 Yearbook of European Law 221.

¢¢ Craig, P. ‘Brexit and the constitution’ in Jowell, J., D. Oliver and C. O’Cinneide
(eds) The changing constitution.

¢¢ Wade, H.W.R. ‘Sovereignty: revolution or evolution?’ (1996) 112 LQR 568 (see also
the following response: Allan, T.R.S. ‘Parliamentary sovereignty: law, politics,
and revolution’ (1997) 113 LQR 443).

¢¢ Ewing, K. ‘Brexit and Parliamentary sovereignty’ (2017) 80(4) MLR 711.


Public law  12  EU law and UK constitutional law page 123

12.1 Key principles guiding national courts in relation to EU law


Through its case law the European Court of Justice has established two key principles:
direct effect and supremacy.

12.1.1 Direct effect


The principle of direct effect means, in essence, that individuals are able to enforce EU
rights and obligations directly before their national courts.

Activity 12.1
Read the summary on the Europa website of the meaning of direct effect at:
http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_
process/l14547_en.htm and answer the following questions:
a. Distinguish between vertical direct effect and horizontal direct effect.

b. Which conditions did the European Court of Justice lay down for the operation
of direct effect in Van Gend en Loos (1963)?

c. If a Directive has not been implemented by a member state by the date of its
deadline, will an individual be able to enforce a right under the Directive:

uu against another individual or

uu against the national state?

12.1.2 Supremacy
This means that any national law in conflict with EU law is rendered inapplicable. A UK
court has an obligation to ‘disapply’ (set aside) national law which is in conflict with EU
law. This principle is also described as the precedence of EU law.

Activity 12.2
Read the summary on the Europa website of the meaning of precedence of EU law
at: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_
process/l14548_en.htm and answer the following questions.
a. According to the summary, what was the effect on national law of Costa v ENEL
(1964)?

b. What advantage does the principle give to EU citizens?

12.2 Contradictions between parliamentary sovereignty and EU


law
At this stage, it is helpful to recall some of the basic principles of parliamentary
sovereignty which we considered in Chapter 3. These principles clash with EU law,
particularly the principles of direct effect and supremacy, in the following ways.

uu Direct effect and supremacy contradict Dicey’s view of parliamentary supremacy


because they provide for a body other than Parliament to override or set aside
legislation.

uu The restrictions of the European Communities Act 1972, which prevent subsequent
Parliaments from legislating against EU law, are a major limit on legislative
freedom.

uu UK courts cannot annul an Act of Parliament, but are expected to ‘disapply’ statutes
that are in conflict with EU law.
page 124 University of London

12.3 Responses of UK courts to the conflict between


parliamentary supremacy and the doctrine of direct effect
The UK courts have taken three approaches to the dilemmas these conflicting
principles have given rise to.

12.3.1 Applying later statute and overriding EU law


This was the initial approach taken by the courts in the 1970s, notably by Lord Denning
in Felixstowe Docks Railway Co v British Transport Docks Board (1976). Here an Act of
Parliament conflicted with what is now Article 102 of the Treaty on the Functioning of
the European Union (TFEU). Lord Denning held that the article was now to be treated
as ‘part of English law’ and therefore:

…once the Bill is passed by Parliament and becomes a statute, that will dispose of all this
discussion about the Treaty. These courts will then have to abide by the statute without
regard to the treaty at all.
This straightforward approach ignored the implications of the supremacy of EU law
and the principle of direct effect.

12.3.2 Using the construction approach


This approach evolved following Lord Denning’s dissenting judgment in Macarthy’s v
Smith (1979), which concerned a claim of discrimination by a woman who argued that
she should be paid the same as a man who had previously held her job. The argument
concerned whether s.1(2) of the Equal Pay Act 1970 could be interpreted in the light of
Article 157 of the TFEU.

Lord Denning’s judgment, which subsequently proved to be influential, held that in


cases such as this the court should interpret national law by:

uu examining directly applicable principles in the treaty

uu taking into account any directly applicable Directives

uu giving ‘full faith and credit’ to national legislation, assuming that it complies with
EU law.

Ultimately the construction approach is summarised as follows.

uu When statutes are interpreted, Parliament is presumed not to have intended


statutes to conflict with EU law.

uu Inconsistencies between UK statutes and EU law are to be resolved in favour of EU law,


unless there is a subsequent Act expressly stating that EU law is to be overridden.

12.3.3 Disapplication approach


One of the key aspects of the construction approach was the comforting legal
‘presumption’ that Parliament did not intend a statute to conflict with EU law. The
difficulty came in practice when Parliament decided to enact a statute which could
not, by any stretch of judicial imagination, be seen to reflect an intention to comply
with EU law.

This particular problem became apparent when the Merchant Shipping Act 1988 was
passed. This Act was intended to prevent non-British fishing boat owners from taking
advantage of fishing quotas that had been allocated to the United Kingdom. Many
Spanish fishermen had taken advantage of UK quotas by registering their boats as
British.

The Merchant Shipping Act 1988 blatantly discriminated against non-British fishermen
by expressly stating that fishing boats could only be registered if the boat was British
owned and managed from the United Kingdom.
Public law  12  EU law and UK constitutional law page 125

The Spanish fishermen sought a judicial review of the Act in R v Secretary of State for
Transport, ex p Factortame Ltd (No 1) (1990). The European Court of Justice granted
an interim injunction to the applicants and, crucially, set aside s.21 of the Crown
Proceedings Act 1947 which, under UK national law, had prevented an injunction
applying against the Crown. When the case came back to the House of Lords in R v
Secretary of State for Transport, ex p Factortame Ltd (No 2) (1991), Lord Bridge spelled out
the position very clearly:

Under the 1972 Act [European Communities Act 1972] it has always been clear that it was
the duty of a United Kingdom court, when delivering final judgment, to override any rule
of national law found to be in conflict with any directly enforceable rule of Community
law.

The political implications of these judgments were significant as they brought home
to MPs and many members of the public the limitations under which Parliament now
operates, restricting it from reflecting the wishes of UK voters if they wished to defy
EU law.

Activity 12.3
Read the BBC article ‘Spanish win legal fish fight’ (8 April 1998): http://news.bbc.
co.uk/1/hi/world/europe/75815.stm and answer the following questions:
a. What was the estimate of the likely total compensation payable?

b. If you were the Minister of Agriculture, how would you explain to the British
fishermen the reason for the decision?

Activity 12.4
Read the report of the European Scrutiny Committee of the House of Commons on
the EU Bill and Parliamentary Sovereignty at:
www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/633i.pdf
Answer the following questions from Chapter 6: Evaluation and conclusions.
a. What conclusions did the committee draw from Laws LJ’s judgment in Thoburn v
Sunderland City Council (2002)?

b. Did the Committee think that the EU Bill would be able to bind future
parliaments?

12.4 European Union law – the ‘pick and mix’ approach


The European Parliament elections in 2014 had the effect of intensifying the debate
in the UK about its membership of the EU. The understanding of some MPs of
the interaction between parliamentary sovereignty and the requirements of EU
membership seems to have deteriorated.

Activity 12.5
Read the report ‘Coalition partners reject Tory MPs’ call for veto over European
Union laws’ (Watt, N.) in the Guardian dated 12 January 2014 at www.theguardian.
com/politics/2014/jan/12/coalition-partners-reject-tory-mps-proposal-eu-veto and
answer the following questions.
a. What proposal had the 95 Conservative MPs made?

b. Why did the (Conservative) Foreign Secretary oppose the proposal?

Activity 12.6
Look at the European Union (Referendum) Bill 2013–14 in the UK Parliament and
answer the following questions.
a. Which MP proposed the Bill?

b. Which type of Private Member’s Bill was it?

c. Did it become law?


page 126 University of London

Activity 12.7
Read the House of Lords Constitution Committee’s 5th Report of Session 2015–16 on
the European Union Referendum Bill 2015–16 at https://publications.parliament.uk/
pa/ld201516/ldselect/ldconst/40/4002.htm and answer the following questions.
a. When was this Bill introduced into the House of Commons?

b. What was the purpose of the Bill?

c. What is the most obvious way in which this Bill differs from the European Union
(Referendum) Bill 2013–14 referred to above?

12.5 Summary
1. The principle of direct effect means that individuals can enforce their rights under
EU law in national courts. The rights must be: precise and clear, unconditional and
not require any further measures: Van Gend en Loos (1963).

2. The doctrine of supremacy or the precedence of EU law means that any national
law in conflict with EU law is rendered inapplicable.

3. UK courts have taken three basic approaches to dealing with the conflict between
parliamentary sovereignty and the EU principles of direct effect and supremacy:

a. applying the later statute and overriding EU law

b. the construction approach with an underlying presumption of interpretation


that Parliament intended the statute not to conflict with EU law

c. under the disapplication approach, where an Act could not be presumed to


have been passed by Parliament with any intention of complying with EU law,
the Act could be ‘disapplied’. This happened with the Merchant Shipping Act
1988 and the Factortame litigation.

4. Current developments around Brexit will be of great importance in relation to


the legislative supremacy of Parliament and the position in terms of the UK’s
relationship with the EU. At the time of writing, the expectation is that the UK will
leave the EU in 2019.
13 Devolution

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

13.1 Political geography of the United Kingdom . . . . . . . . . . . . . . . 129

13.2 Comparing federalism to devolution . . . . . . . . . . . . . . . . . . 129

13.3 Development of the United Kingdom into a nation state . . . . . . . . 129

13.4 The Act of Union with Scotland 1706 . . . . . . . . . . . . . . . . . . 129

13.5 The Scottish devolution settlement . . . . . . . . . . . . . . . . . . . 130

13.6 The Welsh devolution settlement . . . . . . . . . . . . . . . . . . . . 131

13.7 Devolution in Northern Ireland . . . . . . . . . . . . . . . . . . . . . 131

13.8 The roles of the Secretaries of State for Wales, Scotland and
Northern Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

13.9 Intergovernmental relations . . . . . . . . . . . . . . . . . . . . . . 133

13.10 The English question – regional government within England? . . . . . . 133

13.11 Local government functions . . . . . . . . . . . . . . . . . . . . . . 134

13.12 Local government – legislative powers . . . . . . . . . . . . . . . . . 134

13.13 A Welsh legal system? . . . . . . . . . . . . . . . . . . . . . . . . . 134

13.14 Scottish independence . . . . . . . . . . . . . . . . . . . . . . . . . 135

13.15 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135


page 128 University of London

Introduction
In this chapter we examine a relatively new feature of the UK constitution, which
nonetheless has deep historical and political roots. We saw in Chapter 11 how
political and legal power has moved ‘upwards’ from the national UK government and
Parliament to the institutions of the European Union. In a contrasting process, the UK
Parliament has started an intermittent process of ‘devolving’ power ‘downwards’ to
regional governments in Wales, Scotland and Northern Ireland.

After briefly comparing devolution to federalism and the historical development


of the United Kingdom as a single nation state, we will look at the current status of
the devolution process in Scotland, Northern Ireland and Wales, examining the key
statutes that underpin them.

The roles of the Secretaries of State for Scotland, Wales and Northern Ireland will be
considered, together with the mechanics of managing their relationships with the
Westminster Parliament through the use of concordats.

The so-called ‘English question’ and the possibility of regional government within
England will be reviewed, in addition to the functions and legislative powers of local
authorities in England.

Finally we will look briefly at future developments, considering whether a Welsh


legal system is developing and some of the potential implications of Scottish
independence.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 5: Multilevel governing.

Further reading
¢¢ Hazell, R. ‘The English question’ (2006) 36(1) Publius 37–56.

¢¢ Bogdanor, V. The new British constitution, Chapter 4: Devolution.

¢¢ Dickson, B. ‘Devolution – Northern Ireland’ in Jowell, J., D. Oliver and C.


O’Cinneide (eds) The changing constitution.

¢¢ King, A. The British constitution, Chapter 8: John Bull’s other lands.

¢¢ Oliver, D. Constitutional reform in the UK. (Oxford: Oxford University Press, 2003)
[ISBN 9780198765462] Chapter 15: Devolution: England and the United Kingdom.

¢¢ Johnson, N. ‘The Government of Wales Act 2006: Welsh devolution still a process
and not an event?’ (2007) 4 Web JCLI at: www.bailii.org/uk/other/journals/
WebJCLI/2007/issue4/
Public law  13  Devolution page 129

13.1 Political geography of the United Kingdom


Before we examine the detail of the devolution arrangements of the United Kingdom,
it is important to be aware of some key geographical considerations.

Examine the ‘pie’ chart indicating the populations of the constituent countries in the
2018 census.

Northern
Ireland
Wales

Scotland

Country Population
England England 66,600,000
Scotland 5,300,000
Wales 3,100,000
Northern Ireland 1,800,000

Figure 13.1
The key point to note is that the combined populations of Scotland, Wales and
Northern Ireland in 2018 represented only 13.3 per cent of the entire UK population.

13.2 Comparing federalism to devolution


Federalism has been defined by Andrew Scott in ‘Federalism’ in Cane, P. and
J. Conaghan (eds) The New Oxford companion to law as:

... an organisation of government in which the authority to govern is divided between a


central (national) government on the one hand, and a number of constituent regions,
provinces, states or other territorially distinct political authorities on the other hand.

A key feature is the clear and defined division of competences between the regions
and the federal government. Usually this would be set out in a written constitution.

By contrast, the Royal Commission on the constitution defined devolution as ‘the


delegation of central government powers without the relinquishment of sovereignty’.

13.3 Development of the United Kingdom into a nation state


Listen to the audio presentation ‘History of the United Kingdom’ on the VLE outlining
the way in which the constituent nations of the United Kingdom came together
through conquest and political and economic advantage.

13.4 The Act of Union with Scotland 1706


This is one of the key constitutional documents of the United Kingdom which required
an equivalent Act of Union to be passed by the Scottish Parliament.

The language used in the Articles of the Act indicate that its draftsmen intended it to
be treated as a form of ‘higher law’ with special protection from future changes by
page 130 University of London

the new Parliament of Great Britain. We have already considered in Chapter 3 how this
claimed special status clashes with the doctrine of parliamentary supremacy.

Activity 13.1
Read Article 1 of the Act of Union with Scotland 1706 at: www.legislation.gov.uk/
aep/Ann/6/11/contents and identify which words are, arguably, claiming a status of
creating a higher law.

13.5 The Scottish devolution settlement


The first serious attempt to establish Scottish devolution took place in 1978, when
the Labour government managed to pass the Scotland Act 1978 in the UK Parliament.
In a distinct break from normal constitutional practice, it was felt to be politically
important that the people of Scotland (voters in England, Wales and Northern Ireland
were not asked to participate) should also have a chance to vote in a referendum on
the issue. Although a majority voted in favour, the turnout was low and the Act was
repealed. This did, however, set a precedent for the use of referendums in questions of
devolution.

In 1997 the new Labour government was in a much stronger political position and,
in accordance with its manifesto promise, held a referendum asking the Scottish
people whether they wanted a Scottish Parliament and whether it should have limited
income tax raising powers. After securing majorities for both questions the Scotland
Act 1998 was passed, creating the Scottish Parliament.

13.5.1 Technical framework for Scottish devolution


Section 29 of the Scotland Act 1998 provides that the Scottish Parliament’s legislative
competence extends to all areas of law (with a few limited exceptions) which are not
‘reserved matters’. The reserved matters are set out in Schedule 5.

The Scotland Act 2012 made further changes to the devolution settlement in response
to the recommendations of the Calman Commission, including giving the Scottish
Parliament the power to set a separate Scottish income tax rate.

More recently the Scotland Act 2016 gave effect to the recommendations of the Smith
Commission. The Smith Commission was established after the ‘No’ vote in the Scottish
Independence referendum of September 2014.

In summary the Scotland Act 2016:

uu declares that the Scottish Parliament and the Scottish government are considered
permanent parts of the UK’s constitutional arrangements and will not be abolished
without a decision of the people of Scotland. It also recognises that the UK
Parliament will not normally legislate in relation to devolved matters without the
consent of the Scottish Parliament, whilst retaining the sovereignty to do so

uu gives increased autonomy to the Scottish Parliament and the Scottish Ministers in
relation to the operation of Scottish Parliament and local government elections in
Scotland

uu gives increased autonomy to the Scottish Parliament in relation to the power


to amend sections of the Scotland Act 1998 which relate to the operation of the
Scottish Parliament and the Scottish government within the United Kingdom

uu increases the financial accountability of the Scottish Parliament through


devolution of the rates and bands of income tax, Air Passenger Duty and
Aggregates Levy, and assignment of VAT revenues

uu increases responsibility of welfare policy and delivery in Scotland through the


devolution of welfare powers to the Scottish Parliament and/or the Scottish
Ministers

uu gives significant responsibility to Scotland for areas such as road signs, speed limits,
Public law  13  Devolution page 131

onshore oil and gas extraction, consumer advocacy and advice by devolution
of powers in relation to these fields to the Scottish Parliament and the Scottish
Ministers

uu increases scrutiny for the Scottish Parliament of specific bodies and increases the
ability of the Scottish government to design schemes relating to energy efficiency
and fuel poverty by the devolution of functions to the Scottish Ministers.

Activity 13.2
Answer the following questions on the Scotland Act 2012 (the Act can be found at:
www.legislation.gov.uk/ukpga/2012/11/contents)
a. What is the effect of s.11?

b. Which UK tax on land transactions is to be replaced by a Scottish land


transactions tax?

13.6 The Welsh devolution settlement


The cultural and political context of Welsh aspirations for at least some degree of self-
government has been significantly different from the situation in Scotland. Although
there had been some legal differences between Wales and England, notably relating to
the protection of the Welsh language under the Welsh Language Act 1993, Wales and
England have been much more closely entwined politically, legally and economically
for many years.

The Labour government’s Wales Act 1978, which proposed devolution, was rejected
in the subsequent referendum. In 1997 the new Labour government held a Welsh
referendum proposing a more limited form of self-government for Wales than the
option offered to Scotland. By a narrow majority the Welsh electorate voted in favour
of the proposals, which were enacted in the Government of Wales Act 1998. A new
National Assembly was created, but the initial failure to create a clearly separate Welsh
government was criticised. Part 4 of the Government of Wales Act 2006 enabled the
Assembly to pass laws in the form of Acts of the Assembly in a number of ‘subjects’ set
out in Schedule 7.

The Wales Act 2017 marks a fundamental change to the devolution settlement by
changing from a system of ‘conferred powers’ to a ‘reserved powers’ model, bringing
Wales into line with Northern Ireland and Scotland. The 2017 Act recognises that the
Assembly and governments are permanent institutions and confers full control over
the organisation and operation of the Assembly and the electoral system (except the
regulation of political parties).

Activity 13.3
Find the Food Hygiene Rating (Wales) Act 2013 at:
www.legislation.gov.uk/anaw/2013/2/contents/ and the Food Standards Agency in
Wales website at: https://ratings.food.gov.uk/search-a-local-authority-area/en-gb/
Wales
Consider the duties of the Food Standards Agency under s.14 and the Food
Standards Agency’s own description of its work in Wales. Do you think it is in the
interests of Welsh consumers and restaurants for a separate hygiene scheme to be
established?

13.7 Devolution in Northern Ireland


It is one of the ironies of UK politics that the smallest element of the four ‘nations’
(confusingly, Northern Ireland is often referred to as a ‘province’) in the Union is the
most bitterly politically divided. There is a deep religious/political divide between
Protestants/Unionists (traditionally linked to the colour orange) and Roman Catholics/
Nationalists/Republicans (linked to the colour green). These two communities, whose
extremists were responsible for terrible terrorist atrocities during the so-called
page 132 University of London

‘Troubles’ in the 1970s to the 1990s, unsurprisingly had deeply divergent political
aspirations in relation to devolution.

The Unionists sought to maintain their political domination of Northern Ireland by


devolved government, which gave them, as the majority community, as much power
as possible within the United Kingdom. The Nationalists, while maintaining the
aspiration that Northern Ireland would eventually become part of a united Ireland
with the Irish Republic, sought to challenge and mitigate Unionist domination in local
government.

In the light of this situation, it is to the credit of successive UK governments that they
persisted so hard in their efforts to reconcile the different factions by developing a
form of devolution unique to Northern Ireland.

The peace process in Northern Ireland eventually led to the ‘Good Friday’ Agreement
in 1998. The agreement, which was endorsed by referendums in Northern Ireland and
the Irish Republic, established the Northern Ireland Assembly.

Section 4 of the Northern Ireland Assembly Act 1998 created three categories of
legislative competences.

uu Excepted matters: these were matters never intended to be devolved, including


defence and nationality: Schedule 2.

uu Reserved matters: these were matters which may be devolved in the future,
including civil aviation: Schedule 3.

uu Transferred matters: these were matters that have been transferred to the
Assembly, including police and judicial matters.

Acts of the Northern Ireland Assembly tend to reflect the political priorities of the
still divided communities, but the focus on looking back at past miseries has the
potential for healing. The requirement for cross-community collaboration is built
into the operation of the Northern Ireland Executive where the First Minister (a
Unionist representing the largest party) and the Deputy First Minister (a Republican
representing the second largest party) are required to cooperate in a number of
important ways.

The governance of Northern Ireland broke down in January 2017 and there has been
no Assembly business since that date. Day-to-day administration is made possible
through Acts passed by the UK Parliament.

Activity 13.4
Look at the Inquiry into Historical Institutional Abuse Act (Northern Ireland) 2013
at: http://www.legislation.gov.uk/nia/2013/2/contents and answer the following
questions.
a. What was the objective of the Act?

b. Who is responsible for appointing members of the Inquiry?

13.8 The roles of the Secretaries of State for Wales, Scotland and
Northern Ireland
We have seen how certain areas of policy affecting these countries have been retained
by the UK Parliament. Ministers for the relevant UK government departments would
normally take responsibility for them, for example, the Ministry of Defence remains
responsible for Scottish military bases, but part-time Secretaries of State for Wales and
Scotland have been retained with responsibilities for representing those countries’
interests in the UK cabinet, as well as supervising devolution more generally. Northern
Ireland retains a full-time Secretary of State.
Public law  13  Devolution page 133

Activity 13.5
Read the following News Release (dated 12 March 2013) from the Wales Office: www.
gov.uk/government/news/next-steps-on-welsh-assembly-electoral-arrangements
Answer the following questions.
a. Which three proposals outlined in the Green Paper has the UK government
decided to adopt?

b. Which proposal did it decide not to adopt and why?

13.9 Intergovernmental relations


Given that the different governments of Wales, Scotland, Northern Ireland and the UK
Parliament share many common interests due to geographical proximity and overlaps
between their powers, mechanisms for discussions between them can be significant.
The Joint Ministerial Committee (JMC) is one formal method for discussions.

Activity 13.6
Read the following description of the JMC at www.gov.uk/guidance/devolution-
of-powers-to-scotland-wales-and-northern-ireland#joint-ministerial-committee
Answer the following questions.
a. Who chairs the plenary session?

b. Which European institution does the domestic session resemble and why?

Agreements between the different governments are commonly recorded in the form
of concordats.

Activity 13.7
Find the list of concordats on the Scottish government website at: www.gov.scot/
About/Government/concordats and follow the link to the agreement between the UK
government and the Scottish government to hold a referendum on independence for
Scotland (the ‘Edinburgh Agreement’). Answer the following questions.
a. What decision in relation to the franchise for the referendum is given to the
Scottish government and Scottish Parliament?

b. What will be the ‘regulated period’ used in relation to campaign finance for the
referendum?

13.10 The English question – regional government within England?


A representative of the Canadian provincial government of British Columbia visiting
the ancient English city of York might reasonably wonder which English region
or province they were in. Although there is a strong regional pride in being from
Yorkshire, there is no democratically elected regional government for Yorkshire. Given
that, as we have seen at Section 13.1, the population of England comprises 84 per cent
of the United Kingdom, this is a gaping hole in the devolution settlement.

This is a matter of current interest – you can find a brief summary of the issues at:
www.parliament.uk/business/publications/research/key-issues-parliament-2015/
decentralisation/the-english-question/

Activity 13.8
For a summary of the matters arising from the changes to the House of Commons
Standing Orders that implement the principle of ‘English votes for English laws’
(EVEL) – voted for in the Commons in October 2015 – please read the Constitution
Unit article ‘The triumph of EVEL: What next for the English Question?’ at: http://
constitution-unit.com/2015/10/23/the-triumph-of-evel-what-next-for-the-english-
question/ and outline the new procedure to be followed in identifying such bills.
page 134 University of London

13.11 Local government functions


Local authorities in the United Kingdom are a disparate group of elected bodies with
varying powers and relationships with other councils, the devolved governments
and the UK government. Even within England the effects of several decades of
reorganisation can be seen in the form of ‘unitary councils’, which carry out all local
government functions in their areas, and geographically overlapping councils such as
North Hertfordshire District Council and Hertfordshire County Council, for example.

Despite continuing distrust of local government by the UK government (where the


instinct to centralise power is very strong), important functions remain in the hands of
local politicians. These include maintaining highways, planning functions and running
many (but not all) schools.

Section 1 of the Localism Act 2011 is an exception to the general trend of central
government and the UK Parliament limiting and eroding the importance of local
government. It provides for a ‘general power of competence’, which allows local
authorities to ‘do anything that individuals generally may do’.

Activity 13.9
Read the article ‘The jury is still out on the general power of competence’ by
S. Jeraj in the Guardian dated 17 April 2013 at www.theguardian.com/guardian-
professional/2013/apr/17/jury-out-general-power-competence-localism discussing
the effects of the general power of competence. Answer the following questions.
a. Why did Catherine Staite believe councils had been reluctant to use the power?

b. How could the power help the budgets of councils?

c. Give an example of how the power has been used effectively.

13.12 Local government – legislative powers


Local authorities have powers under a number of Acts of Parliament to make
delegated legislation covering their local areas in the form of by-laws. The ‘parent’
statutes may require certain procedures to be carried out, such as publicity or the
approval of the Secretary of State, before the by-laws can be approved.

Activity 13.10
Find the North Hertfordshire District Council by-laws relating to acupuncture,
tattooing, cosmetic piercing, electrolysis and semi-permanent skin colouring
at: www.north-herts.gov.uk/files/byelawsrelatingtoacupuncturetattooing-skin-
piercing-licencepdf and answer the following questions.
a. Under which statute were these by-laws made?

b. What are the requirements of the by-laws in relation to needles?

c. Who confirmed the by-laws after the council’s seal had been affixed?

13.13 A Welsh legal system?


An inherent difficulty with granting devolution and, in particular, law-making
powers to the Welsh Assembly is that Wales currently has no separate legal system.
The legal jurisdiction is described as ‘the law of England and Wales’. Scotland and
Northern Ireland have their own legal systems already. The Welsh Assembly began a
consultation on the possibility of creating a separate Welsh legal system in 2012.
Public law  13  Devolution page 135

Activity 13.11
Read the article ‘True Wales boycotts Welsh legal jurisdiction consultation’ (20 June
2012) at: www.bbc.co.uk/news/uk-wales-politics-18517123 and answer the following
questions.
a. Why did the organisation ‘True Wales’ oppose a separate Welsh legal system?

b. What practical changes would a Welsh legal system lead to?

13.14 Scottish independence


In 2014 the Scottish people voted ‘no’ in a referendum on independence for Scotland.
Inevitably, when partition of an existing state becomes a serious possibility politically,
many practical and constitutional issues begin to emerge.

Activity 13.12
Read the executive summary of the appendix to the UK government report Scotland
analysis: devolution and the implications of Scottish independence at:
www.gov.uk/government/publications/scotland-analysis-devolution-and-the-
implications-of-scottish-independence and answer the following questions.
a. Why did the authors consider that the status of Scotland before the Act of Union
in 1707 would be of little or no relevance?

b. What did the authors consider would be the most likely status of the remainder
of the United Kingdom and Scotland in international law after Scottish
independence?

Activity 13.13
Read ‘Scottish independence referendum – what’s next?’ at: www.gov.uk/
government/news/scottish-independence-referendum-whats-next
and answer the following questions.
a. What was the turnout in the referendum?

b. Which further powers are to be devolved to Scotland (following the outcome of


the referendum)?

c. Think about the result of the referendum – do you agree that further powers
should be devolved to the Scottish Parliament?

Watch the then Prime Minister’s speech on the anniversary of the


Scottish independence referendum at: www.gov.uk/government/news/
pm-statement-on-the-anniversary-of-the-scotland-referendum

In the wake of the Brexit referendum in 2016, after the UK as a whole voted to
leave the European Union (EU) while a majority in Scotland voted to remain, the
Scottish government held a consultation on a draft independence referendum bill.
For a summary see: www.bbc.co.uk/news/uk-scotland-scotland-politics-37708545
and https://consult.gov.scot/elections-and-constitutional-development-division/
draft-referendum-bill/

13.15 Summary
1. Federalism is a form of political government whereby authority to govern is
divided between a central government and a number of constituent regions,
provinces or states.

2. Devolution is a method of government whereby central government powers are


delegated without relinquishing sovereignty.

3. The Scotland Act 1998 extends to the Scottish Parliament legislative competence in
all areas of law, unless they fall within defined ‘reserved matters’. The Scotland Act
2012 has made some adjustments to the ‘reserved matters’, including permitting
page 136 University of London

the Scottish Parliament to hold a referendum on independence. The Scotland Act


2016 gives effect to the Smith Commission Agreement and amends the Scotland
Act 1998. This Act also includes provisions which set out the constitutional
relationship of the Scottish Parliament and Scottish government within the United
Kingdom’s constitutional arrangements.

4. The Government of Wales Act 1998, as amended by the Government of Wales Act
2006, permitted the National Assembly of Wales to pass Acts of the Assembly in
certain specified ‘subjects’ (areas of law). The Wales Act 2017 changes devolution
from the conferred powers model to the reserved powers model.

5. Devolution in Northern Ireland has been a tortuous political process due to


the deep religious and political divisions between the Unionist and Nationalist
communities. The Northern Ireland Act 1998, which established the Northern
Ireland Assembly, divided legislative competences into ‘excepted matters’ – those
that were never intended to be devolved; ‘reserved matters’ – may be devolved in
the future; and ‘transferred matters’ – which have now been devolved. Note that
devolution has been ‘suspended’ since January 2017.

6. The UK government’s Secretaries of State for Scotland, Wales and Northern


Ireland retain residual responsibilities for devolution matters and represent those
countries’ interests in the UK cabinet.

7. The Joint Ministerial Committee (JMC) is a mechanism for ministers from the
devolved governments to meet each other and relevant UK government ministers
to discuss common interests and issues.

8. Agreements reached between the different governments at the JMC are recorded
in the form of concordats. A recent example is the agreement between the UK and
Scottish governments on the referendum on Scottish independence.

9. The ‘English question’ deals with the constitutional anomaly of Scottish, Welsh and
Northern Irish MPs in the House of Commons voting on matters that have been
devolved and therefore only affect England.

10. Local authorities (councils) have limited executive powers in certain areas such as
planning and education. They have a ‘general power of competence’ under s.1 of
the Localism Act 2011.

11. Local authorities are able to make by-laws as delegated legislation.

12. The Welsh Assembly is considering the possibility of creating a separate Welsh legal
system with its own courts and judiciary.

13. The constitutional implications of Scottish independence, which were debated


at length before the referendum in September 2014, appeared to have been
consigned to theoretical possibilities following the ‘no’ vote. The issues raised
in the debate, however, remain of interest to academics and students of
constitutional and European law, and arguably Brexit has re-ignited the discussion.
14 Judicial independence and accountability

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

14.1 Judiciary – facts and figures . . . . . . . . . . . . . . . . . . . . . . . 139

14.2 Judicial independence . . . . . . . . . . . . . . . . . . . . . . . . . 139

14.3 Judicial accountability . . . . . . . . . . . . . . . . . . . . . . . . . 139

14.4 Judicial impartiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

14.5 Appointment of judges . . . . . . . . . . . . . . . . . . . . . . . . . 140

14.6 Judges’ roles in chairing public inquiries . . . . . . . . . . . . . . . . 141

14.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142


page 138 University of London

Introduction
In this chapter we look critically at judges, focusing particularly on the extent to which
they demonstrate independence from government and wider issues that are relevant
to an assessment of their accountability.

After briefly reviewing some basic facts and figures about the judiciary, we will
consider what judicial independence means in theory and in practice. This will include
the special duty of the Lord Chancellor to maintain judicial independence under the
Constitutional Reform Act 2005, as well as the implications of criticism of judges by the
media and government ministers.

We will then focus on judicial accountability and what judicial impartiality means in
practice.

The appointment of judges is fundamental to their independence and is also relevant,


in a wider sense, to their accountability to society as a whole. After examining this
area, we will then briefly look at the role of judges when they chair public inquiries.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 14: The Judiciary.

Further reading
¢¢ Constitutional Reform Act 2005, Part 3 (especially ss.40, 41, 42) at: www.
legislation.gov.uk/ukpga/2005/4/part/3

¢¢ Pannick, D. ‘“Better that a horse should have a voice in the House [of Lords] than
that a judge should” (Jeremy Bentham): Replacing the Law Lords by a Supreme
Court’ (2009) Public Law 723.

¢¢ Clark, M.L. ‘Introducing a Parliamentary confirmation process for new Supreme


Court Justices: its pros and cons, and lessons to be learned from the US
experience’ (2010) Public Law 464.
Public law  14  Judicial independence and accountability page 139

14.1 Judiciary – facts and figures


In an ideal legal system judges at all levels, as well as being academically highly
qualified, would also reflect the society in which they were making judgments. This
would mean an appropriate level of diversity between men and women and white
and other ethnic groups. We will look at the selection processes of the judiciary in
more detail later, but it is first helpful to look at some statistics that reflect the levels of
diversity in 2017 as well as any trends that can be discerned from earlier statistics.

Activity 14.1
Read the Lord Chief Justice’s ‘Introduction’ to the Judicial Diversity Statistics 2017
at: www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/
judicial-diversity-statistics-2017/
Compare the 2017 judicial diversity statistics to the 2016 judicial diversity statistics
on the judiciary website at: www.judiciary.gov.uk/subject/judicial-diversity/ and
answer the following questions.
a. How many female Court of Appeal judges were there in 2016 and 2017?

b. What were the percentages of black and minority ethnic (BME) Lord Justices of
Appeal in 2016 and 2017?

c. Comparing the 2016 and 2017 figures more generally, do you think the judiciary
is becoming more diverse?

14.2 Judicial independence


An independent judiciary is vital for the rule of law and to maintain public confidence
in their judgments. Independence can be demonstrated in a number of ways. First, the
appointment process must be seen to be completely free of influence from politicians,
particularly government ministers. Second, judges must be able to decide cases free
from pressure from politicians and other improper pressures from, for example, the
media and the general public. Finally, it must be difficult to remove judges simply
because they make unpopular decisions against the government.

Under s.3 of the Constitutional Reform Act 2005 the Lord Chancellor has a duty to
defend judicial independence.

Activity 14.2
Read the UCL Constitution Unit Seminar Note ‘Judicial independence and the
Supreme Court’ at: www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/
seminar-note-judicial-independence-and-the-supreme-court.pdf and answer the
following questions.
a. Why did the Scottish government argue that the creation of the Supreme Court
had led to the court having greater control over the Scottish legal system?

b. What did the Scottish government threaten to do as a result?

c. Do you think this was a legitimate threat to make?

Pressure from the media, particularly the ‘tabloid’ newspapers, is very influential on
many politicians and it takes a measure of political bravery for any politician to defend
an unpopular decision.

14.3 Judicial accountability


We have seen how judicial independence is required to be maintained by the Lord
Chancellor as a key element in the constitution. Nonetheless, in a constitution where
those in positions of power are expected to be accountable for their actions, judges
should also expect to be accountable.
page 140 University of London

The system of appeals in the court system is, of course, one form of accountability and
the prospect of a forensic dissection of an individual judge’s reasoned written opinion
by more senior colleagues provides a strong incentive for care and responsibility in
deciding cases. Journalists and the non-legally trained public do sometimes express
great hostility to the approach taken by judges with regard to controversial issues
such as anti-terrorism laws across the court system.

In many legal systems, including that of the USA, there is much greater dialogue
between senior judges and members of the legislature.

Activity 14.3
Review the discussion on the judiciary website of the relationship between judges
and Parliament: www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/
jud-acc-ind/judges-and-parliament and answer the following questions.
a. What is the effect of the sub judice rule?

b. What restraints are there on judges when giving evidence to parliamentary


committees?

14.4 Judicial impartiality


Many statues depicting ‘Justice’, such as the one outside the Legislative Council
building in Hong Kong, depict her as blindfolded. This symbolism reflects the
importance of judges being impartial between the different parties as well as being
seen to be impartial.

Actual bias in favour of one party in a court case is very rare in the UK judiciary. A more
subtle problem arises when a judge is involved in non-judicial activities which give rise
to a perception of bias through preconceived attitudes.

Activity 14.4
Read the article ‘How Pinochet tainted Hoffmann’s brilliant career’ (Rozenberg, J.,
23 April 2009) from the Law Society’s Gazette: www.lawgazette.co.uk/50436.article
and answer the following questions.
a. In the Pinochet case why was Lord Hoffmann’s role crucial?

b. What should Lord Hoffmann have done at the beginning of the case and why?

c. Do you agree that the employment and other activities of a judge’s spouse
should be taken into account when considering issues of impartiality?

A recent (extra-judicial) speech by Lady Hale in November 2016, preceding the


Supreme Court hearing of the case on triggering Article 50 to bring about the
UK’s exit from the European Union (R (on the application of Miller and Dos Santos)
v Secretary of State for Exiting the European Union [2017] UKSC 5) led to controversy
in some quarters. For example see: www.telegraph.co.uk/news/2016/11/15/
supreme-court-judge-criticised-after-warning-theresa-may-could-b/

14.5 Appointment of judges


It is very important that the selection system for judges achieves a number of goals.
The best judicial intellects should be chosen, combining knowledge of law with the
appropriate powers of discernment between arguments of plausible and persuasive
advocates. In many court cases these requirements will be all that is needed in
order to be able to give a reasoned judgment that reflects a fair application of well-
established law.
Public law  14  Judicial independence and accountability page 141

In addition, there should be a reasonable representation of a cross-section of the


society among judges. Judges do sometimes have to deal with new factual situations
where there is no settled law and the personal values which they apply to their
decisions should, so far as is practical, reflect those of the wider society.

The Judicial Appointments Commission is responsible for selecting most judges in


England and Wales.

Activity 14.5
Read the Procedure for Appointing a Justice of the Supreme Court of the United
Kingdom at: www.supremecourt.uk/about/appointments-of-justices.html
Who will form the panel for the appointment of a Supreme Court Justice?

14.5.1 Judicial appointments and conduct ombudsman


The ombudsman has a dual role: to investigate complaints about the selection process
for judicial appointments and also to investigate complaints against the judiciary.

Activity 14.6
Go to the judicial appointments and conduct ombudsman website at:
www.gov.uk/government/organisations/judicial-appointments-and-conduct-
ombudsman/about and answer the following question.
To whom may the ombudsman make recommendations in relation to judicial
appointments?

14.6 Judges’ roles in chairing public inquiries


When disasters or major failures occur in public life, the government will often order
a public inquiry. The Prime Minister will be aware at this stage that there is a loss of
public confidence and trust and will be anxious to use the inquiry to help restore it. As
well as a genuine desire to find out the truth, more expedient motives include a desire
to postpone dealing with a politically toxic issue in the hope that public anger may
have cooled by the time the inquiry reports. In the case of the 2012 Leveson Inquiry
into the media, the then Prime Minister was under intense political pressure from
victims of phone hacking, on the one hand, and powerful tabloid newspapers on the
other.

The individual leading such an inquiry will usually lend their name to it and, almost
invariably in recent years, prime ministers have selected judges. Despite the criticism
of judges in the media, it is clearly felt that they are most likely to be seen as impartial,
although some would argue that a legalistic approach is not always the best one.

Activity 14.7
Read the blog post ‘Public inquiries, political action’ (White, J., 13 December 2012)
from the website Total Politics: www.totalpolitics.com/opinion/345157/public-
inquiries-political-inaction.thtml and answer the following questions.
a. Why does the writer argue that the ‘obsession’ with inquiries among politicians
is ‘unhealthy’?

b. Who led the Hillsborough Independent Panel and why did the writer consider
him to have been a success?
page 142 University of London

14.7 Summary
1. The judicial diversity statistics indicate that women and BME judges are a small
proportion of the total numbers of judges across the court system.

2. Judicial independence is vital for the rule of law and may be threatened when
politicians and the media apply improper pressure on judges in response to
unpopular decisions. Improper pressure includes threats to cut funding.

3. Judicial accountability is partly achieved through the appeal system in the courts.
Judges do appear before parliamentary committees, but there are restrictions on
their freedom to speak on a number of topics, including government policy and
prospective legislation.

4. Judicial impartiality requires judges to avoid actual bias in individual cases. More
difficult problems can arise where a judge’s non-judicial activities give rise to a
perception of bias. Lord Hoffmann’s involvement with Amnesty International gave
rise to such an issue in the Pinochet case.

5. Most judges in England and Wales are selected by the Judicial Appointments
Commission, which seeks to extend judicial diversity while maintaining and
improving other judicial skills. Supreme Court Justices are selected by Supreme
Court Selection Commissions and follow a separate process.

6. The Judicial Appointments and Conduct Ombudsman investigates complaints


about the selection process for judges, as well as complaints against the judiciary.

7. Judges are often selected as chairs of public inquiries, with their reputations for
impartiality being particularly useful for prime ministers under political pressure.
15 Principles of judicial review I: illegality

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

15.1 Historical background . . . . . . . . . . . . . . . . . . . . . . . . . 145

15.2 Constitutional background . . . . . . . . . . . . . . . . . . . . . . . 145

15.3 Judicial review in practice . . . . . . . . . . . . . . . . . . . . . . . . 145

15.4 Amenability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

15.5 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

15.6 Remedies for judicial review . . . . . . . . . . . . . . . . . . . . . . 147

15.7 Grounds for judicial review – illegality . . . . . . . . . . . . . . . . . 147

15.8 Reform of judicial review . . . . . . . . . . . . . . . . . . . . . . . . 149

15.9 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150


page 144 University of London

Introduction
In this chapter we will examine the historical and constitutional background to
this important judicial check on the power of the executive and the clash which it
represents between the intentions of Parliament and the claims of an unwritten
constitution. We will then look at the mechanics of judicial review applications,
including the important issues of ‘amenability’, standing and remedies, as well as
government attempts to limit their growth.

We will then consider the first of the three grounds of judicial review, illegality. The
remaining grounds, procedural fairness and irrationality and proportionality will be
dealt with in Chapters 16 and 17 respectively. Finally, we will consider criticisms of the
current system of judicial review.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 16: Judicial review.

Further reading
¢¢ Craig, P. Administrative law. (London: Sweet & Maxwell, 2016) 8th edition [ISBN
9780414055681], Chapter 19: Abuse of discretion, Section 5: Illegality: Common
law constraints.

¢¢ Tomkins, A. Public law, Chapter 6: Legal accountability, Section: The development


of modern judicial review law.

¢¢ Bondy, V., L. Platt and M. Sunkin ‘The value and effects of judicial review’ (2015):
www.publiclawproject.org.uk/resources/210/the-value-and-effects-of-judicial-review
Public law  15  Principles of judicial review I: illegality page 145

15.1 Historical background

Activity 15.1
Listen to the audio presentation on the VLE called ‘Administrative law: introduction
to judicial review’, outlining the shift by the courts from a deferential to a more
activist approach to judicial review during the 20th century.
No feedback provided.

15.2 Constitutional background


There are two basic and competing claims for the constitutional basis of judicial
review. The first position, advocated by Professor Christopher Forsyth, is that the key
task of the courts here is to ensure that the public bodies, including ministers, have
not acted ultra vires (i.e. beyond their powers). Ultimately, the courts derive their
powers expressly or implicitly from Parliament, and are thus acting in accordance with
principles of parliamentary democracy.

The second position, which is argued by Professor Jeffrey Jowell and others, is that it
is unrealistic to pretend that judge-made law is driven by parliamentary intention. Sir
John Laws stated:

They owe neither their existence nor their acceptance to the will of the legislature. They
have nothing to do with the intention of Parliament, save as a fig leaf to cover their true
origins.

Ultimately such commentators argue that the authority and legitimacy of the courts
when carrying out judicial review is derived from the unwritten constitution.

15.3 Judicial review in practice


Judicial review can be seen as a remedy of last resort when all other legal options
have failed. It often will only provide a limited remedy since it will require the original
decision maker or public authority to make the disputed decision again, but this time
within their or its legal powers.

Part 54 of the Civil Procedure Rules covers the procedures in England and Wales. Rule
54.1 states:

(1) This Section of this Part contains rules about judicial review.

(2) In this Section –

(a) a ‘claim for judicial review’ means a claim to review the lawfulness of –

(i) an enactment; or

(ii) a decision, action or failure to act in relation to the exercise of a public


function.
Part of the attraction of judicial review for opponents of government policy is the fact
that a claim may delay the policy, make it more expensive and give a fresh opportunity
to encourage public opposition. Government ministers very often hate it as a result.

Activity 15.2
As an example of how an organisation may use judicial review to challenge
government policy, look at the website of cruelty free international (formerly the
BUAV): www.crueltyfreeinternational.org/high-court-gives-us-permission-bring-
judicial-review-against-uk-home-office and answer the following questions.
a. What issues did the organisation raise in relation to Imperial College London?

b. Against whom was the judicial review challenge being mounted?

In England and Wales and Northern Ireland the judicial review procedure consists of
two basic stages.
page 146 University of London

1. Permission to bring a claim must be obtained from a judge.

2. If permission is granted, the court will go on to look at the claim’s merits.

A judge will grant permission only if:

1. the claim is made within the time limit (i.e. three months from the date of the
decision in dispute)

2. the claimant has sufficient interest (‘standing’) in the case

3. all other methods of challenging the decision have been exhausted.

15.4 Amenability
We have seen that judicial review claims may challenge the way in which ‘public
functions’ are exercised. Claims may therefore be made against a variety of organisations
and decision makers, including those not in the public sector. The main method of
checking whether a body may be subjected to (‘amenable to’) judicial review is by
identifying whether its powers derive from statute or the prerogative. Decisions taken
under powers contained in a contract are not considered to be amenable, because they
derive from a private agreement. Note that in some cases actions by a public body may
not be amenable to judicial review if they derive from a contract.

Activity 15.3
Read the discussion of commercial judicial review (‘Hot topics in commercial
judicial review’, 15 May 2012) at: www.inhouselawyer.co.uk/index.php/legal-
briefing/hot-topics-in-commercial-judicial-review/ and answer the following
questions.
a. In R (Broadway Care Centre Ltd) v Caerphilly County Borough Council (2012) what
was the action of the council which was argued to be a ‘public function’?

b. In R (Broadway Care Centre Ltd) v Caerphilly County Borough Council (2012) why
did the applicant not succeed?

c. In R (Bevan & Clarke LLP) v Neath Port Talbot County Borough Council (2012) why
did the applicants succeed?

15.5 Standing
In order to obtain permission to seek judicial review, applicants must show that they
have ‘sufficient interest in the matter’ (s.31 of the Senior Courts Act 1981), otherwise
known as ‘standing’. There is no statutory definition of ‘sufficient interest’, but judges
have generally taken a fairly open approach to allowing pressure groups and other
organisations without a direct financial link to the dispute to participate.

In R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd (1995),
the applicant was able to bring a judicial review action in relation to the Foreign
Secretary’s decision to use development aid to fund a controversial Malaysian dam. As
a pressure group seeking to improve the quality of British aid to developing countries,
it was held to have sufficient standing.

Activity 15.4
Read the article ‘Richard III reburial plans breach human rights, say descendants’
(Hall, M., 27 March 2013) from the Daily Telegraph website about the discovered
bones of the medieval English king, Richard III at: www.telegraph.co.uk/
history/9956250/Richard-III-reburial-plans-breach-human-rights-say-descendants.
html
Answer the following questions.
a. What was the action that related to the judicial review?

b. Which group intended to seek the judicial review?


Public law  15  Principles of judicial review I: illegality page 147

c. In deciding the issue of standing, to what extent do you think it was important
to the court whether or not the surviving relatives were descendants of Richard
III?

Further reading
¢¢ R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice
[2014] EWHC 1662 (QB) which can be accessed via www.judiciary.gov.uk/wp-
content/uploads/2014/07/richard-3rd-judgment-.pdf

Activity 15.5
Read the University of Leicester’s reporting of the Richard III Judicial Review
decision at: www2.le.ac.uk/news/blog/2014-archive-1/may/richard-iii-judicial-
review-decision and the case report at: www.judiciary.gov.uk/judgments/the-
queen-on-the-application-of-plantagenet-alliance-ltd-v-secretary-of-state-for-
justice-and-others/
What does para.74 of the judgment tell you about the purpose of judicial review?

15.6 Remedies for judicial review


The following orders may be made.

uu A quashing order – the decision challenged will have no legal effect.

uu A quashing order with an instruction that the original decision maker ‘reconsider it
and reach a decision in accordance with the findings of the court’.

uu A prohibiting order – this will prevent the public body from doing or continuing to
do something.

uu A declaration – this is a statement by the court of the legal position of the parties.

uu An injunction – either temporary or permanent.

uu A declaration of incompatibility in human rights claims.

uu Damages – these are only available if they could be obtained on non-judicial review
grounds.

Activity 15.6
Review the Richard III article in Activity 15.4. If you were advising the Plantagenet
Alliance, which remedy would you seek?

15.7 Grounds for judicial review – illegality


Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985)
summarised the first ground for judicial review in the following way:

By ‘illegality’ as a ground for judicial review I mean that the decision maker must
understand correctly the law that regulates his decision-making power and must give
effect to it. Whether he has or not is par excellence a justiciable question to be decided, in
the event of dispute, by those persons, the judges, by whom the judicial power of the state
is exercisable.

15.7.1 Exercise of discretion


One key aspect where illegality has been considered by the courts is the exercise of
discretionary powers by a decision maker. A statute will commonly give a minister or
local authority, for example, broad instructions but will leave it to them to decide the
detailed implementation. A local authority may have special local factors that it would
wish to take into account in drafting local by-laws and a minister might exercise their
discretion in drafting statutory instruments to reflect expert advice received after the
statute was passed.
page 148 University of London

Such discretionary decisions will sometimes be deeply unpopular, but it is important


to note that a judicial review challenge is not an appeal on the merits of the decision
itself.

Lord Greene in the important case Associated Provincial Picture Houses Ltd v Wednesbury
Corporation (1948) summed up the questions the court will consider as follows:

The exercise of...a discretion must be a real exercise of the discretion. If, in the statute
conferring the discretion, there is to be found expressly or by implication matters which
the authority exercising the discretion ought to have regard to, then in exercising the
discretion it must have regard to those matters.

Activity 15.7
Find the Prevention of Social Housing Fraud Act 2013 at:
www.legislation.gov.uk/ (also available in the Online Library) and answer the
following questions.
a. In relation to regulations created under the Act, what is the ‘appropriate
authority’?

b. Consider regulations to be passed in England under ss.7–8 relating to a new


criminal offence of failing to provide information or a document for prescribed
housing fraud investigatory purposes. If you were advising on the drafting of the
regulations, what basic requirements would you advise must be included for
the regulations to be legal?

15.7.2 Delegating discretion


The basic rule is that a person or body to whom a discretion has been given must not
delegate it to someone else. Clearly Parliament intended that person or body to make
the decision themselves and it would not be appropriate for the responsibility to be
passed to someone else.

At this point some practical difficulties start to emerge. Local authorities consist of
a limited number of councillors who do not have enough time or expertise to carry
out every function delegated to them personally. Recognising this reality, s.101(1) of
the Local Government Act 1972 provides that local authorities may discharge their
functions through committees, sub-committees or their officers, provided that the
delegation is in accordance with its ‘scheme of delegation’.

Activity 15.8
Find the scheme of delegation in Annex 3 of the Hertfordshire County Council
Constitution at: www.hertfordshire.gov.uk/your-council/cpdrp/constitution/
annexecconstitution and answer the following questions.
a. Which functions of the executive in relation to fire brigades are not delegated
to the Director Community Protection? Why do you think these exceptions are
made?

b. What limitation is placed on the delegation of powers to the Director of Adult


Care Services in relation to gypsy site provision?

A different approach is taken in relation to delegation to ministers. Following Carltona


v Commissioner of Works (1943), it was recognised that the multitude of functions
delegated to government ministers could not possibly be undertaken by them
personally. Lord Greene stated:

The whole system of departmental organisation and administration is based on the


view that ministers, being responsible to Parliament, will see that important duties are
committed to experienced officials.
Public law  15  Principles of judicial review I: illegality page 149

15.7.3 Fettering discretion


Making decisions between different options can be demanding and time consuming
for individuals and organisations. The natural reaction, particularly when time is short,
is to take the same approach as previously taken in similar circumstances. In the
context of delegated discretion, this reaction has led to ministers and other bodies
developing detailed guidance and policies to reflect the previous decisions and the
thinking behind them. There are many administrative benefits from such an approach,
but there is clearly a danger that decision makers may limit (‘fetter’) themselves from
any fresh arguments which could lead to an alternative decision. In British Oxygen Co
Ltd v Minister of Technology (1971), Lord Reid took a pragmatic and sensible approach:

But a Ministry or large authority may have had to deal already with a multitude of similar
applications and they will almost certainly have evolved a policy so precise that it could
well be called a rule. There can be no objection to that, provided the authority is always
willing to listen to anyone with something new to say.

15.7.4 Relevant and irrelevant considerations and improper purposes


The extent of the detail which is given in a statute as to how a minister should exercise
their discretion may vary greatly. Where the statute appears to give a very wide and
unfettered discretion, the question arises as to whether there are, in fact, some limits
arising from the general purposes of the statute as a whole.

In Padfield v Minister of Agriculture, Fisheries and Food (1968), Lord Reid held:

Parliament must have conferred the discretion with the intention that it should be used
to promote the policy and objects of the Act; the policy and objects of the Act must be
determined by construing the Act as a whole and construction is always a matter of law
for the court ... but if the Minister, by reason of his having misconstrued the Act or for any
other reason, so uses his discretion as to thwart or run counter to the policy and objects of
the Act, then our law would be very defective if persons aggrieved were not entitled to the
protection of the court.

One of the most notorious examples of improper purposes for the exercise of
discretion was in Magill v Porter Magill v Weeks (2001), where housing stock was
sold by the council under statutory powers with the intention of giving the ruling
Conservative Party a political advantage.

15.8 Reform of judicial review


In this chapter we have seen how the courts are able to delay and challenge decisions
by government ministers and other bodies, not so much on the merits or otherwise
of the decisions, but rather on the way in which the decisions are made. Given the
pressures on ministers from the media and the public for speedy action, it is not
surprising that ministers have reacted with particular hostility to judicial review
challenges and have argued in favour of reform.

Activity 15.9
Read the article about the former Lord Chancellor and Secretary of State for Justice
– ‘Chris Grayling targets “ill-founded” judicial reviews’ (Coleman, C., 13 December
2012) – on proposals for reform at: www.bbc.co.uk/news/uk-politics-20709392 and
answer the following questions.
a. What proportion of applications for judicial review in 2011 went ahead to a full
hearing?

b. What problems did Chris Grayling identify with judicial review?

c. How strong do you think Chris Grayling’s arguments are?


page 150 University of London

Activity 15.10
Read the blog post ‘Judicial review reform (again)’ by Mark Elliott on 6 February
2014 at http://publiclawforeveryone.wordpress.com/2014/02/06/judicial-review-
reform-again-2/ and answer the following questions.
a. How has the Ministry of Justice responded to the criticisms of its proposed
changes to ‘standing’ in judicial review?

b. What changes are planned for the ‘makes no difference’ principle? Why are the
changes criticised?

Activity 15.11
Read the BBC news report of 27 October 2014: ‘Peers defeat Government over
judicial review curbs’ at: www.bbc.co.uk/news/uk-politics-29795054. Part 4 of the
Criminal Justice and Courts Act 2015 introduced a new ‘materiality’ threshold. By
virtue of s.84 relief can be refused where it appears ‘highly likely that the outcome
for the applicant would not have been substantially different if the conduct
complained of had not occurred’.
No feedback provided.

Activity 15.12
Look at another consultation on reforms to judicial review at: https://consult.justice.
gov.uk/digital-communications/reform-of-judicial-review-proposals-for-the-provis
What was the government’s main purpose in consulting on this?

15.9 Summary
1. There are two competing claims for the constitutional basis of judicial review.
Professor Forsyth has argued that the courts derive their authority expressly or
implicitly from Parliament. Professor Jowell and others argue that the basis for the
exercise of judicial review lies in the unwritten constitution.

2. Judicial review procedure is set out in Part 54 of the Civil Procedure Rules. Rule 54.1
states that it relates to a claim to review the lawfulness of an enactment or the
exercise of a ‘public function’.

3. Permission must first be granted for a judicial review application to be heard. The
second stage is the full hearing.

4. A judicial review application must be heard within three months.

5. Organisations exercising ‘public functions’ can include private as well as public


bodies. A body will be subject to (‘amenable to’) judicial review if its powers derive
from statute or the prerogative. Powers deriving from contracts are not amenable
to judicial review.

6. Applicants for judicial review must show that they have ‘sufficient interest in
the matter’ (standing): s.31 of the Senior Courts Act 1981. Judges generally take a
reasonably relaxed approach to allowing pressure groups to apply.

7. Remedies for judicial review include:

a. quashing orders

b. prohibiting orders

c. injunctions

d. declarations of incompatibility.

8. Illegality, as a ground for judicial review, requires the decision maker to have failed
correctly to understand the law and/or to apply it: Council of Civil Service Unions v
Minister for the Civil Service (1985).
Public law  15  Principles of judicial review I: illegality page 151

9. When exercising a discretion, a decision maker must take into account all matters
which they are required to consider as stated in the statute: Associated Provincial
Picture Houses Ltd v Wednesbury Corporation (1948).

10. In principle, a decision maker should not delegate a discretion to another. Section
101 of the Local Government Act 1972 allows local authorities to delegate to
committees and officers in accordance with a scheme of delegation. Ministers are
able to delegate to their departments while retaining ministerial responsibility:
Carltona v Commissioner of Works (1943).

11. Ministers and other decision makers should not allow detailed policies to limit
(‘fetter’) the exercise of their discretion. They should remain willing to consider
new arguments: British Oxygen Co Ltd v Minister of Technology (1971).

12. Where the statute appears to grant a very wide discretion, ministers must,
nonetheless, act in accordance with the general purposes of the Act: Padfield
v Ministry of Agriculture, Fisheries and Food (1968). Improper purposes are not
permitted.

13. Criticisms of judicial review include the number of weak claims and their use for
publicity purposes.
page 152 University of London

Notes
16 Principles of judicial review II: procedural fairness

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

16.1 Why is procedural fairness important? . . . . . . . . . . . . . . . . . 155

16.2 Legitimate expectations . . . . . . . . . . . . . . . . . . . . . . . . 155

16.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156


page 154 University of London

Introduction
In this chapter we continue our study of the grounds of judicial review by looking at
the important topic of procedural fairness. Any parent of two or more children knows
that, sooner or later, your decisions in settling arguments will be greeted with ‘It’s not
fair.’ Fairness is important to all of us and a legal system which is perceived to be unfair
because of biased decision making and a lack of a chance for all parties to present their
cases will quickly lose its legitimacy.

We will also consider briefly another ground for judicial review which also relates
to fairness – legitimate expectation. We will consider to what extent individuals and
groups can rely on promises made by decision makers.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 16: Judicial review.

Further reading
¢¢ Tomkins, A. Public law, Chapter 6: Legal accountability, Section (a) Procedural
review: procedural impropriety.

¢¢ Reynolds, P. ‘Legitimate expectations and the protection of trust in public


officials’ (2011) Public Law 330–52.

¢¢ Elliott, M. ‘Has the common law duty to give reasons come of age yet?’ (2011)
Public Law 56–74.
Public law  16  Principles of judicial review II: procedural fairness page 155

16.1 Why is procedural fairness important?


We have seen that there is a strong human instinct for decisions to be made fairly but,
inevitably, perceptions of fairness can vary widely. Sometimes, a statute may require
a particular procedure to be followed which, to many people (including government
ministers), would have made no difference to the final outcome of the decision. The
courts will normally prioritise the importance of the decision being seen to be fair by
all parties.

Genevra Richardson in ‘Existing approaches to process in administrative law: the legal


regulation of process’ in Administrative law and government action (1994) has identified
the following two justifications for fairness.

16.1.1 Instrumentalism
Here, there is a pragmatic reason for fairness – it will lead to the correct decision
being taken. This is most obvious in the case of criminal trials – the courts take very
seriously breaches of the rules relating to questioning of suspects because of the risk
of miscarriages of justice. Miscarriages of justice do, of course, subsequently cost the
state a great deal.

Activity 16.1
Read Annex B of Code D of the Police and Criminal Evidence Act 1984 at: www.gov.
uk/police-and-criminal-evidence-act-1984-pace-codes-of-practice and answer the
following questions.
a. Why do you think there is a requirement that the suspect or their legal
representative is given details of the first description of the offender by the
witness before an identification parade takes place?

b. What must witnesses be told immediately before taking part in an identification


parade and why?

16.1.2 Process values


Richardson (1994) describes these values as follows:

An alternative approach is to see processes as designed to protect values which are


independent of the direct outcome of the decision, such as participation, fairness and
the protection of individual dignity ... The primary justification for a claim to fair process,
accordingly, lies not in the ability of such processes to achieve correct outcomes, but in the
respect they afford to the dignity and autonomy of individuals.

Activity 16.2
Find the North Hertfordshire District Council Statement of Community Involvement
at: www.north-herts.gov.uk/home/planning/planning-policy/local-plan-emerging-
policy/statement-community-involvement-sci and answer the following questions.
a. Find the section dealing with development plan documents. In the table setting
out the stages for creating the development plan, what elements do you think
are important for ensuring the fairness of community participation?

b. Do you think that these procedures will lead to a sense of fairness by residents
of North Hertfordshire when large-scale developments are approved as a result
of the development plans?

16.2 Legitimate expectations


Parents do sometimes have to disappoint their children and will be faced with the
unhappy cry ‘But you promised!’ The promise may have been a definite one, but the
child may also have interpreted a (deliberately) vague expression of a possibility as
a categorical promise. Children also assume that past practices will automatically
continue.
page 156 University of London

These dilemmas for a parent who is seeking to act fairly are paralleled in the legal
system. In Council of Civil Service Unions v Minister for the Civil Service (1985), the past
practice of consulting the unions over changes to terms and conditions led to an
expectation that this would continue. Ultimately, the courts reserve the right to
decide whether an expectation is legitimate.

In R v North and East Devon Health Authority, ex p Coughlan (2001) a clear statement that
a tetraplegic woman would be able to stay in a particular nursing home ‘for life’ was
held by the Court of Appeal to create a legitimate expectation, preventing the health
authority from closing it. The court stated that the requirements of fairness had to be
balanced against any overriding interest in favour of a change of policy.

16.2.1 Representations must not conflict with statute


A representation must not conflict with statute. In R v Department of Education and
Employment, ex p Begbie (1999), a promise of an assisted place at an independent school
was not held to be a legitimate expectation when the scheme was abolished by statute.

16.2.2 The representation must be clear and unequivocal


There are particular difficulties when the courts have to review promises by
government ministers. At Section 7.5 we considered the troubling case R (on the
application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2001)
dealing with the expulsion of the Chagos Islanders (Ilois). One of the main issues was a
statement by the Foreign Secretary, Robin Cook, who said:

Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois
to return to the outer islands while observing our Treaty obligations.

In the same press statement he mentioned a feasibility study and it is clear that the
Chagos Islanders treated this as a definite promise. When the government in 2004
(Robin Cook was no longer Foreign Secretary) decided not to implement this promise,
the case eventually reached the House of Lords. The majority of the House of Lords
held that this was not a ‘clear and unambiguous promise’ (Lord Hoffmann) and used
the feasibility study as the justification.

16.2.3 The representation must be directed towards particular


individuals and groups
In the Chagos Islanders case the Islanders were a clearly defined group. A claim by
some individual victims of miscarriages of justice and solicitors in relation to the
abolition of a discretionary compensation scheme in Niazi v Secretary of State (2008)
failed. The court’s approach was summed up by Laws LJ as:

First it is difficult to imagine a case in which government will be held legally bound by a
representation or undertaking made generally or to a diverse class ... The second reason
is that the broader the class claiming the expectation’s benefit, the more likely it is that a
supervening public interest will be held to justify the change of position complained of.

16.3 Summary
1. There are two key reasons why procedural fairness is important. The
instrumentalist justification points to the achievement of the correct result, for
example, convicting only the guilty in criminal trials. Process values emphasise the
wider benefits that fair procedures bring with respect to the autonomy and dignity
of individuals.

2. The courts will accept legitimate expectations as an alternative ground for judicial
review if:

a. the representation does not conflict with statute

b. the representation is clear and unequivocal

c. the representation is directed towards particular individuals and groups.


17 Principles of judicial review III: irrationality and
proportionality

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

17.1 Irrationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

17.2 Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

17.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160


page 158 University of London

Introduction
In this chapter we conclude our discussion of judicial review by looking at the ground
of irrationality and the criticism of it. We will then review briefly the principle of
proportionality as it is used in EU law and in relation to certain ‘qualified’ human rights
under the European Convention on Human Rights (ECHR).

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 16: Judicial review.

Essential reading
¢¢ Goodwin, J. ‘The last defence of Wednesbury’ (2012) Public Law 445–67 (available
in Westlaw).

Further reading
¢¢ Daly, P. ‘Wednesbury’s reason and structure’ (2011) Public Law 238–59.

¢¢ Hickman, T. ‘The substance and structure of proportionality’ (2008) Public Law


694–716.

¢¢ Le Sueur, A. ‘The rise and ruin of unreasonableness?’ (2005) 10 Judicial Review


32–51.
Public law  17  Principles of judicial review III: irrationality and proportionality page 159

17.1 Irrationality
The first definition of this concept that we will consider, subsequently known as
‘Wednesbury unreasonableness’, was made by Lord Greene in Associated Provincial
Picture Houses v Wednesbury Corporation (1948):

It is true to say that, if a decision on a competent matter is so unreasonable that no


reasonable authority could ever have come to it, then the courts can interfere.

Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985)
developed the definition, stating that irrationality:

... applies to a decision which is so outrageous in its defiance of logic or of accepted


moral standards that no sensible person who had applied his mind to the question to be
decided could have arrived at it.

It is no coincidence that in both these cases the applicants failed – the tests set the
standard extremely high.

Academic criticism of the concept is exemplified by Jeffrey Jowell and Anthony Lester
in ‘Beyond Wednesbury: substantive principles of administrative law’ (1987) Public Law
368:

One can understand that Lord Greene’s definition of unreasonableness sought to make
the judges think twice about interfering with the merits of official decisions, but a test
which requires the official action not to be ordinarily unreasonable, but only, in effect,
extremely unreasonable, is unhelpful as a practical guide.

17.2 Proportionality
The essence of this principle is that a balance has to be struck by a decision maker
between the wider public interest and the effects of the decision on particular
individuals.

17.2.1 Proportionality and EU law


Proportionality is one of the key principles of EU law.

Activity 17.1
Read the definition of ‘Proportionality’ in the glossary of the Europa website at:
http://europa.eu/legislation_summaries/glossary/proportionality_en.htm and
answer the following questions.
a. What is the effect of the rule?

b. In which article of which treaty is the principle of proportionality set out?

17.2.2 Proportionality and the ECHR


The ECHR identifies certain rights which are ‘qualified’. This means that they will be
enforced proportionately, bearing in mind the wider public interest and the rights of
others.

Activity 17.2
Read Article 9 of the ECHR below and the European Court of Human Rights factsheet
on freedom of religion at: www.echr.coe.int/Pages/home.aspx?p=press/factsheets
and answer the questions below.
page 160 University of London

ARTICLE 9

Freedom of thought, conscience and religion

(1) Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the protection
of the rights and freedoms of others.

a. Consider the case of Wasmuth v Germany (App no 12884/03). Why was the
applicant unsuccessful?

b. Consider the case of Larissis v Greece (140/1996/759/958–960). Why did the court
take a different approach to the proselytising (attempting to convert) of air
force personnel and civilians?

17.2.3 Proportionality, Wednesbury unreasonableness and irrationality


The current status of proportionality as a ground for judicial review is particularly
interesting. Lord Diplock suggested, in the GCHQ case, that it might emerge in due
course as a fourth ground. Since R (Daly) v Home Secretary [2001] UKHL 26 the approach
has been a twin-track one, with proportionality used in relation to ECHR/HRA cases but
irrationality/Wednesbury unreasonableness remaining the test at common law.

There have been frequent calls to replace Wednesbury unreasonableness with


proportionality, but the recent case of Keyu v Secretary of State for Foreign and
Commonwealth Affairs [2015] UKSC 69 indicates this is not imminent. For further
discussion please read: http://publiclawforeveryone.com/2015/11/27/q-how-many-
supreme-court-justices-does-it-take-to-perform-the-wednesbury-doctrines-burial-
rites-a-more-than-five/

17.3 Summary
1. The ground of irrationality is sometimes also referred to as ‘Wednesbury’
unreasonableness. In essence, the test for a successful judicial review application
is that the decision maker made a decision that was so unreasonable that no
reasonable decision maker could have come to it.

2. Wednesbury unreasonableness has been criticised on the grounds that it requires


the official action to be ‘extremely unreasonable’.

3. Proportionality is a concept used in EU law to reflect the limited role of EU


institutions to achieve the objectives of the treaties.

4. Proportionality is also used in cases involving the ECHR to describe the approach
taken when enforcing ‘qualified’ rights where the wider public interest and the
rights of others have to be taken into account.
18 Human rights protection

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

18.1 International Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . 163

18.2 The European Convention on Human Rights . . . . . . . . . . . . . . 163

18.3 Enforcement of human rights in the European Court of Human Rights . 163

18.4 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 164

18.5 Case study – prisoners’ voting rights . . . . . . . . . . . . . . . . . . 164

18.6 Criticism of the Human Rights Act 1998 . . . . . . . . . . . . . . . . . 165

18.7 A British Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 165

18.8 Reform of the European Court of Human Rights . . . . . . . . . . . . . 166

18.9 Charter of the Fundamental Rights of the European Union . . . . . . . 167

18.10 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167


page 162 University of London

Introduction
In this chapter we consider the International Bill of Rights and the European
Convention on Human Rights (ECHR) – the most important legal document in the
context of European human rights. We will consider the key articles and protocols as
well as the mechanisms under which the European Court of Human Rights (ECtHR)
enforces rights.

We have already seen how the Human Rights Act 1998 (HRA) has affected UK law. Here
we will examine its aims and effects on the relationship between the judiciary and the
executive.

After examining the controversial human rights issue of prisoners’ voting rights we will
look at some responses to criticisms of the HRA, as well as proposals for a British Bill of
Rights.

The ECtHR has been subject to a number of serious criticisms. We will discuss
proposals for reform.

Finally, we will briefly review the European Union’s role in protecting human rights
through the Charter of Fundamental Rights of the European Union.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 6: Protecting rights.

Further reading
¢¢ King, A. The British constitution, Chapter 6: The judges come out.

¢¢ Tomkins, A. Public law, Chapter 6: Legal accountability, Section: The impact of the
Human Rights Act 1998.
Public law  18  Human rights protection page 163

18.1 International Bill of Rights


The International Bill of Rights is the collective description given to three international
covenants/declarations:

uu the Universal Declaration of Human Rights 1948

uu the Covenant on Civil and Political Rights 1966

uu the Covenant on Economic, Social and Cultural Rights 1966.

Activity 18.1
Find Factsheet No 2 of the International Bill of Rights at: www.ohchr.org/EN/
PublicationsResources/Pages/ArchivesFS.aspx and answer the following questions.
a. What is the text of Article 1 of the Universal Declaration of Human Rights?

b. What right does Article 8 of the International Covenant on Economic, Social and
Cultural Rights protect?

c. What right does Article 7 of the International Covenant on Civil and Political
Rights protect?

18.2 The European Convention on Human Rights


The ECHR is structured in the form of Articles of the original convention, to which
all states (known as ‘High Contracting Parties’) who have signed the Convention are
subject, and protocols which were drafted subsequently. Individual member states
have to decide whether or not they will adopt each protocol. The United Kingdom has
adopted the First and Sixth Protocols only.

Activity 18.2
Read the First Protocol at https://ec.europa.eu/digital-agenda/sites/digital-agenda/
files/Convention_ENG.pdf and answer the following questions.
a. In what circumstances may a state seize the property of a company?

b. If a state insisted on all children being educated at school, would parents who wish
to ‘home-school’ (i.e. educate at home) their children be obliged to comply?

18.3 Enforcement of human rights in the European Court of


Human Rights
There are two basic methods of enforcement in the ECtHR.

(1) Interstate cases

These are relatively rare and are brought by one state against another.

Activity 18.3
Find the case of Denmark v Turkey (App no 34382/97) and answer the following
questions.
a. What was the subject matter of the case?

b. What was the result of the case?

(2) Individual petitions

Under Article 34, individuals, legal persons (e.g. companies), groups and other non-
governmental organisations (NGOs) can bring claims against states provided they can
show that they have exhausted all possible remedies before domestic courts and that
the case is not manifestly ill-founded.
page 164 University of London

Activity 18.4
Read Betteridge v United Kingdom (App no 1497/10) and answer the following questions.
a. What was the subject matter of the claim?

b. What was the decision of the court?

18.4 The Human Rights Act 1998

18.4.1 Aims
The HRA has two basic aims:

uu to bring the rights under the ECHR under the UK courts

uu to encourage a culture of respect for human rights among public authorities.

Inevitably it is hard to evaluate whether such a culture has developed.

Activity 18.5
Read the blogpost ‘Why saving the Human Rights Act will be good for your health’ (24
October 2012): http://ukhumanrightsblog.com/2012/10/24/why-saving-the-human-rights-
act-will-be-good-for-your-health-alice-donald/ and answer the following questions.
a. How did the former Lord Chancellor, Lord Irvine, define a human rights culture
in public life?

b. What underlying human rights principle had Mersey Care adopted?

18.4.2 Effects of the HRA on the relationship between judiciary and the
executive
The HRA has undoubtedly led to increased tension between politicians and judges. In
a healthy democracy subject to the rule of law, it might be argued that it is important
that the judges and politicians do not have too ‘cosy’ a relationship. Nonetheless the
public nature of disagreements between them may risk damaging public confidence
in the court system.

Activity 18.6
Read the Sixth Report of the Select Committee on the Constitution at:
www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15104.htm
Why did Lord Bingham think that the tension between judges and politicians was
greater at times of perceived threats to national security?

18.5 Case study – prisoners’ voting rights


The response of successive governments to the controversial decision of the ECtHR in
Hirst v United Kingdom (No 2) (App no 74025/01) has been slow and deeply hostile. Just
before the time limit set by the court, in November 2012, the government published
a draft Bill for pre-legislative scrutiny, as unenthusiastically as possible. This was the
Voting Eligibility (Prisoners) Draft Bill upon which the Joint Committee published its
Report in December 2013.

Activity 18.7
Read the statement of the then Lord Chancellor, Chris Grayling, and the response
of the shadow (Labour Party) Lord Chancellor Sadiq Khan at: www.parliament.uk/
business/news/2012/november/statement-voting-eligibility-for-prisoners/
Answer the following questions.
a. What reasons were given by the Lord Chancellor for pre-legislative scrutiny of
the Bill?

b. How coherent do you think Sadiq Khan’s response to the Bill was?

In December 2014, the government announced that prisoners would not be


enfranchised prior to the general election of 2015.
Public law  18  Human rights protection page 165

Activity 18.8
Please read the following news articles for a brief summary of a fairly recent case
(interestingly brought before the ECJ, not the ECtHR) on the issue of prisoner voting
rights and think about what this might mean in the context of the UK’s continuing
blanket ban on prisoner voting.
¢¢ www.telegraph.co.uk/news/worldnews/europe/eu/11914341/Prisoners-can-be-
stripped-of-the-vote-EUs-top-court-rules.html

¢¢ www.theguardian.com/politics/2015/oct/06/
uk-ban-on-prisoner-voting-is-lawful-eus-highest-court-rules

No feedback provided.

Activity 18.9
Please read the response to oral questions in the House of Commons
in December 2017 in Hansard at: https://hansard.parliament.uk/
Commons/2017-12-21/debates/909E3E7B-425A-4180-BDDB-D2DDEADFB554/
PrisonerVoting and the reporting of this ‘compromise’ by the Guardian
newspaper in the article ‘Council of Europe accepts UK compromise on
prisoner voting rights’ at: www.theguardian.com/politics/2017/dec/07/
council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights
Do you think it will be straightforward for the government to translate these
proposals into policy?

18.6 Criticism of the Human Rights Act 1998


As we have seen, the HRA has aroused much criticism. The reaction of ministers
and politicians more generally has been heavily influenced by their unwillingness
to challenge the biased and ill-informed portrayal by much of the media. In such a
charged political atmosphere, more nuanced criticisms are often drowned out.

Activity 18.10
Read Professor Conor Gearty’s paper Beyond the Human Rights Act (2010) on the VLE.
Answer the following questions.
a. Why does Gearty think that the HRA has been an easy target for the mass-
circulation media?

b. Why does he think the ECtHR would be ‘relaxed’ if the United Kingdom repealed
the HRA?

c. Why does Gearty argue that the incompatibility procedure ‘serves to buttress
rather than undermine’ parliamentary sovereignty?

18.7 A British Bill of Rights

18.7.1 Commission on a Bill of Rights


The coalition government’s Programme for Government agreed in 2010 by the Liberal
Democrat and Conservative Parties stated:

We will establish a Commission to investigate the creation of a British Bill of Rights that
incorporates and builds on all our obligations under the European Convention on Human
Rights, ensures that these rights continue to be enshrined in British law, and protects and
extends British liberties. We will seek to promote a better understanding of the true scope
of these obligations and liberties.

This Commission achieved the Parties’ immediate objective of setting aside an issue on
which the two parties were fundamentally divided, without giving the impression that
they were ‘ducking’ the issue completely.
page 166 University of London

Fairly predictably, given the fundamental disagreements between the Parties and their
appointees on the Commission, no consensus was reached as to the next steps when it
reported in December 2012.

Activity 18.11
Read the Conclusion to the Commission on a Bill of Rights Final Report: Volume 1 at:
http://webarchive.nationalarchives.gov.uk/20130128112038/http://www.justice.gov.
uk/about/cbr and answer the following questions.
a. Which three factors led a minority of the Commission to oppose the creation of
a UK Bill of Rights?

b. Why did the majority oppose the extension of rights in a new UK Bill of Rights to
socio-economic rights?

c. Why did the Commission favour an equivalent mechanism to the declaration of


incompatibility for any new UK Bill of Rights?

Further steps have been taken under the current Conservative government.

Please read the government’s proposals for changing Britain’s human rights laws set out
here: www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf

Please also read the following news articles on delays to the plans:
www.theguardian.com/law/2015/dec/02/plan-to-scrap-human-rights-act-delayed-again
and www.lawgazette.co.uk/law/truss-confirms-commitment-to-human-rights-act-
reform/5057216.article

18.7.2 Implications for devolution


The HRA applies to the whole of the United Kingdom and it is therefore not surprising
that the proposals for reform have implications for the devolution settlements in
Northern Ireland, Scotland and Wales.

Section 6(2)(c) of the Northern Ireland Act 1998 provides that the legislative
competence of the Northern Ireland Assembly will not apply to any provision in an Act
where ‘it is incompatible with Convention rights’.

Similar clauses are found in the Scotland Act 1998 and the Government of Wales Act 2006.

Activity 18.12
Read the blog post ‘Human rights, devolution and the constrained authority of the
Westminster parliament’ (O’Cinneide, C., 4 March 2013) on the UK Constitutional
Law Group blog: http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-
rights-devolution-and-the-constrained-authority-of-the-westminster-parliament/
Answer the following questions.
a. What would be the result of an attempt by the Westminster Parliament to
legislate to change the law relating to human rights as it applies to Northern
Ireland, Scotland and Wales?

b. What additional difficulties arise in relation to Northern Ireland?

c. Do you think that difficulties over devolution can fairly be described as ‘the tail
wagging the dog’?

Another position on the situation regarding the Sewel convention, the Scottish
Parliament and the Human Rights Act is taken by Professor Mark Elliott here: http://
publiclawforeveryone.com/2015/09/28/the-scottish-parliament-the-sewel-convention-
and-repeal-of-the-human-rights-act-a-postscript/

18.8 Reform of the European Court of Human Rights


If the HRA is eventually repealed but the United Kingdom remains subject to the ECHR,
the practical operation of the ECtHR will become more important as many more UK
applicants are compelled to use it.
Public law  18  Human rights protection page 167

Although the attention of the media in the United Kingdom has been focused on the
actual decisions of the court, there have been a number of proposals for improving
its operation. One of a series of conferences reviewing possible improvements was
held in the United Kingdom in April 2012. The results were summed up in the Brighton
Declaration.

Activity 18.13
Read the Brighton Declaration at: www.echr.coe.int/Documents/2012_Brighton_
FinalDeclaration_ENG.pdf
Answer the following questions:
a. What problem had been identified at the Interlaken Conference and why was it
serious?

b. Why do you think the Declaration recommends that national states enable and
encourage their national courts and tribunals to take into account and give due
regard to the Convention and its case law?

c. What reduced time limit for applications is proposed?

The most recent of these high-level conferences was held in Brussels in March 2015
to discuss ‘The implementation of the European Convention of Human Rights, our
shared responsibility’.

Further reading
¢¢ An overview and links to various related documents on the reform and future
of the ECtHR can be found at: www.echr.coe.int/Pages/home.aspx?p=basictexts/
reform&c=

18.9 Charter of the Fundamental Rights of the European Union


Note that the Charter will no longer apply once the UK leaves the EU.

The Charter of the Fundamental Rights of the European Union is, on the face of it,
another ambitious attempt to grapple with wide-ranging human rights issues, and
many people might wonder why. Article 6 of the Treaty on European Union (TEU)
provides that the European Union should accede to the ECHR, which is to form the
general principles of the European Union’s law.

The Charter covers all the main rights, but also covers social and economic rights.

A key restraint on its effectiveness (and scope for disrupting the ECHR jurisprudence) is
the limitation in Article 6 of the TEU:

The provisions of the Charter shall not extend in any way the competences of the Union as
defined in the Treaties.

Activity 18.14
Read the Charter of Fundamental Rights at http://eur-lex.europa.eu/legal-content/
EN/TXT/?uri=URISERV:l33501 and answer the following questions.
a. How does the Charter deal with the issue of same-sex marriage?

b. What is the effect of Article 25?

c. To what extent is legal aid protected in the Charter?

18.10 Summary
1. The International Bill of Rights consists of three documents:

a. the Universal Declaration of Rights

b. the Covenant on Civil and Political Rights

c. the Covenant on Economic, Social and Cultural Rights.


page 168 University of London

2. The ECHR is structured in the form of articles and protocols. The United Kingdom
has adopted the First and Sixth Protocols as one of the ‘High Contracting Parties’
(i.e. signatory states).

3. There are two basic methods of enforcement of the ECHR in the ECtHR.

a. Interstate cases – these are brought by one state against another and are
relatively rare.

b. Individual petitions – individuals and legal persons can bring claims against
states.

4. The HRA has two aims:

a. to make rights under the ECHR enforceable in the UK courts

b. to encourage a culture of respect for human rights among public authorities.

5. The continuing dispute between the UK Parliament and the ECtHR over voting
rights for prisoners is an example of the conflicts that can arise between judges
and politicians over human rights.

6. Repealing the HRA would result in greater numbers of UK cases being heard by the
ECtHR, but would not undermine existing case law from the Court.

7. The Commission on a Bill of Rights (set up during the last Parliament) was split over
whether a UK Bill of Rights was needed. The minority who opposed it highlighted
difficulties over devolution, strong support for the existing arrangements from
many witnesses and concerns over possible withdrawal from the ECHR. The
Commission agreed that an equivalent to the declaration of incompatibility
mechanism would be needed for any new UK Bill of Rights. The current
government has published outline proposals for changing Britain’s human rights
laws, although these appear to have been delayed at least until after Brexit.

8. Repeal of the HRA would have serious implications for devolution, since it applies
to the whole of the United Kingdom.

9. There are proposals for reforming the practical operation of the ECHR.

10. The Charter of the Fundamental Rights of the European Union is wide-ranging
and includes social and economic rights. Its importance is diminished by the
requirement that it should not extend the competences of the European Union
as defined in the treaties.
19 Human Rights Act 1998 jurisprudence

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

19.1 Duty to take into account decisions of the European Court of


Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

19.2 Can the UK courts extend Convention rights? . . . . . . . . . . . . . . 171

19.3 The interpretative obligation . . . . . . . . . . . . . . . . . . . . . . 171

19.4 Declarations of incompatibility . . . . . . . . . . . . . . . . . . . . . 172

19.5 Enforcement proceedings against ‘public authorities’ . . . . . . . . . 173

19.6 Case study – Denbigh High School . . . . . . . . . . . . . . . . . . . . 173

19.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174


page 170 University of London

Introduction
In this chapter we will review the ways in which the UK courts use the Human Rights
Act 1998 (HRA) in practice. We will cover the duty to ‘take into account’ European Court
of Human Rights (ECtHR) case law and discuss whether or not UK courts can extend
European Convention on Human Rights (ECHR) rights. The obligation to interpret
statutes and delegated legislation in a way that is compatible with Convention rights
will be considered. The effects of declarations of incompatibility will be discussed,
together with their effect on the interaction between the courts and Parliament.

The meaning of ‘public authority’ will be considered in the context of the enforcement
of human rights by the UK courts. Note that, whereas the requirement of standing for
Judicial Review is ‘sufficient interest’, s.7 of the Human Rights Act 1998 requires that an
applicant is a ‘victim’ of an alleged unlawful act.

Finally, we will discuss a case study in which the right to manifest a person’s religion
under Article 9 of the ECHR was considered.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 17: Using human rights in the United
Kingdom courts.

Further reading
¢¢ Kavanagh, A. ‘Unlocking the Human Rights Act: the “radical” approach to section
3(1) revisited’ (2005) European Human Rights Law Review 259 (provides a very
careful assessment of the R v A case).

¢¢ Kavanagh, A. Constitutional review under the UK Human Rights Act. (Cambridge:


Cambridge University Press, 2009) [ISBN 9780521682190] Chapter 11:
Parliamentary sovereignty and the HRA.

¢¢ Sales, P. ‘A comparison of the principle of legality and section 3 of the Human


Rights Act 1998’ (2009) LQR 598.
Public law  19  Human Rights Act 1998 jurisprudence page 171

19.1 Duty to take into account decisions of the European Court of


Human Rights
Section 2(1) of the HRA states:

A court or tribunal determining a question which has arisen in connection with a


Convention right must take into account any –

judgment, decision, declaration or advisory opinion of the European Court of Human


Rights…
Inevitably the UK courts have had to decide to what extent this phrasing creates an
obligation to follow decisions with which they disagree.

Activity 19.1
Read the lecture ‘A British interpretation of Convention rights’ (14 December 2011)
by Lord Irvine, who was Lord Chancellor when the HRA was passed, in the Public
Law journal (Lord Irvine, ‘A British interpretation of Convention rights’ (2012) Public
Law 237, available in Westlaw through the Online Library) and answer the following
questions.
a. Which two interlinked questions did Lord Irvine raise in connection with s.2(1)?

b. Which alternative words to ‘take account of’ could Parliament have chosen to
use in s.2(1)?

c. Do you agree with Lord Irvine’s comments in relation to Article 46 of the ECHR?

19.2 Can the UK courts extend Convention rights?


Underlying much of Lord Irvine’s argument discussed in Section 19.1 was concern
that the ECtHR was interpreting Convention rights in a way that was too liberal and
expansive for the United Kingdom. In contrast, occasionally UK courts have sought to
extend Convention rights beyond the approach approved by the ECtHR.

This has given rise to some debate about whether the case law of the ECtHR should be
seen as a ceiling, which constrains any developments beyond its ‘height’, or as a floor
on which the UK courts can build dynamically.

Activity 19.2
Find Re P [2008] UKHL 38 on LexisLibrary or Westlaw and read Lord Hoffmann’s
speech. Answer the following questions.
a. What was the subject matter of the case?

b. Which 2003 decision of the ECtHR appeared to allow states to exercise a ‘margin
of appreciation’ in relation to the marital status of potential adopters?

c. Why did Lord Hoffmann not feel bound by this 2003 decision?

d. Do you think Lord Hoffmann viewed the ECtHR case law as a ‘ceiling’ or a ‘floor’?

19.3 The interpretative obligation


One of the tasks which judges are required to carry out is interpreting UK legislation.
In addition to existing ‘rules’ of interpretation developed under the common law (e.g.
the ‘golden rule’), s.3(1) of the HRA states:

So far as it is possible to do so, primary legislation and subordinate legislation must be


read and given effect in a way which is compatible with the Convention rights.

Under s.3(2)(b), the obligation to interpret primary legislation in this way will not
affect the continuing validity and enforcement of that legislation. Under s.3(2)(c),
the validity and enforcement of subordination may be made invalid by such an
interpretation, unless the primary statute states that the secondary legislation will be
incompatible with Convention rights.
page 172 University of London

One of the key difficulties with the interpretive obligation under s.3 is that it suggests
that the obligation to interpret a statute or statutory instrument in accordance
with Convention rights should arise where the legislation is ambiguous (in common
with the other common law ‘rules’ of statutory interpretation), but also where the
legislation is clear. The words in s.3(1) ‘So far as it is possible to do so’ are clearly crucial.

In Ghaidan v Godin-Mendoza (2004) a dispute arose over whether the words in


para.2(1), Schedule 1 to the Rent Act 1977 relating to the right to succeed on death to a
statutory (protected) tenancy (i.e. ‘a person who was living with the original tenant as
his or her wife or husband’) could be interpreted under s.3 of the HRA to include the
deceased tenant’s same-sex partner. The majority of the House of Lords ruled that it
could be interpreted to include the same-sex partner.

Activity 19.3
Find Ghaidan v Godin-Mendoza (2004) in LexisLibrary or Westlaw and read Lord
Millett’s dissenting judgment. Answer the following questions.
a. Which case had set a precedent in the House of Lords ruling that a same-sex
partner could not inherit their deceased partner’s tenancy?

b. Why did Lord Millett not discuss in detail the possibility of a declaration of
incompatibility?

c. Lord Millett contrasted s.3 with the wording of statutes in former colonial
territories where judges were given a ‘quasi-legislative power’. What wording
was commonly used in such statutes?

d. Why did Lord Millett consider it to be relevant to his decision that Parliament
was in the process of passing the Civil Partnership Bill at the time?

19.4 Declarations of incompatibility


Section 4 of the HRA enables the senior courts to make declarations of incompatibility,
stating that legislation is incompatible with Convention rights. Such declarations may
cause some disquiet and discomfort among government ministers and Parliament
but, importantly, they do not affect the ‘validity, continuing operation or enforcement’
of the legislative provision. Declarations of incompatibility are not binding on the
parties to the case, nor is the government or Parliament compelled to amend the law
to remove the incompatibility.

Where a government minister does choose to change the law, s.10 and Schedule 2 to
the HRA provide for an expedited procedure for amending the law by way of ‘remedial
orders’.

Activity 19.4
Read s.4 of the Joint Human Rights Committee Seventh Report of Session 2014–15 at:
www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm and
answer the following questions.
a. How many declarations of incompatibility were made by UK courts during the
2010–15 Parliament?

b. How many outstanding declarations exist where the government has yet to
remedy the incompatibility?
Public law  19  Human Rights Act 1998 jurisprudence page 173

19.5 Enforcement proceedings against ‘public authorities’


Section 6 of the HRA states:

(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.

... (3) In this section ‘public authority’ includes –

a court or tribunal, and

any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.

Section 6 does not define ‘public authority’, but it is clear that it includes government
departments, local authorities, the police and armed forces as well as ‘hybrid public
authorities’ which are private organisations performing public functions.

Activity 19.5
Read Williams, A. ‘Public authorities: what is a hybrid public authority under
the HRA?’ in The impact of the UK Human Rights Act on private law. (Cambridge:
Cambridge University Press, 2011) pp.48–65 at: http://dro.dur.ac.uk/10650/ and
answer the following questions.
a. Why is it argued that it is of ‘especial concern’ that the courts have shown great
reluctance to allow human rights claims in relation to the delivery of public
services contracted out by a local authority to a private organisation?

b. In the conclusion of this chapter, why is it argued that it is advantageous for


a hybrid public authority to have Convention rights when exercising a public
function?

19.6 Case study – Denbigh High School


In R (on the application of Begum) v Head Teacher and Governors of Denbigh High School
(2006), the House of Lords considered a controversial and well-publicised case in
which a Muslim schoolgirl from Luton claimed her right to manifest her religion under
Article 9 of the ECHR and to receive an education had been infringed. The core area
of dispute lay in her wish to wear a form of dress known as a ‘jilbab’ and her refusal to
wear the alternative Muslim dress known as a ‘shalwar kameez’.

The House of Lords decided unanimously in favour of the school, although only three
of the five judges held that the applicant’s freedom under Article 9 had not been
breached. The other two judges – Lord Nicholls and Baroness Hale – indicated that they
thought that there was a breach but that the interference was justified.

Activity 19.6
Read Lord Bingham’s speech in R (on the application of Begum) v Head Teacher and
Governors of Denbigh High School (2006) and answer the following questions:
a. How does Article 9(2) restrict the right to manifest one’s religion?

b. What was the significance of the presence of three other local schools that did
permit the wearing of the jilbab?

c. Why did Lord Bingham disagree with the Court of Appeal’s approach in this case
to the issue of proportionality in the second of his reasons for disagreeing with
their decision?
page 174 University of London

19.7 Summary
1. Section 2(1) of the HRA requires UK courts to take into account any ‘judgment,
decision, declaration or advisory opinion’ of the ECtHR.

2. It has been difficult to reconcile the flexible language of s.2(1) with the very clear
direction under Article 46 of the ECHR to states to ‘abide’ by the decisions of the
ECtHR.

3. Occasionally UK courts seek to extend rights beyond the case law of the ECtHR as in
Re P (2008).

4. The interpretive obligation, under s.3 of the HRA, requires UK courts to interpret UK
legislation ‘in a way which is compatible with Convention rights’. Difficulties have
arisen where the statute uses clear language which is, nonetheless, in breach of
Convention rights. See Ghaidan v Godin-Mendoza (2004).

5. The senior UK courts are able to make ‘declarations of incompatibility’ under s.4 of
the HRA. These declarations do not affect the continuing validity of the legislation.
There is an expedited procedure for amending the law in response to declarations
of incompatibility.

6. Section 6 of the HRA provides for enforcement of Convention rights against public
authorities, which includes persons and bodies which are private but are exercising
public functions. Such private bodies are sometimes referred to as ‘hybrid public
authorities’.
20 Human Rights Act 1998 and terrorism

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

20.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

20.2 Part 4 of the Anti-terrorism, Crime and Security Act 2001 . . . . . . . . 178

20.3 A v Secretary of State for the Home Department [2004] UKHL 56 . . . . . . 178

20.4 Control orders under the Prevention of Terrorism Act 2005 . . . . . . . 179

20.5 Terrorism Prevention and Investigation Measures Act 2011


– the TPIMs regime . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

20.6 Counter-Terrorism and Security Act 2015 . . . . . . . . . . . . . . . . 180

20.7 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181


page 176 University of London

Introduction
Although the tragic events of 11 September 2001 highlighted the horrific potential of
terrorist acts across the world, the UK government has had to grapple with terrorism
dating back to Northern Ireland in the 1970s. Acts of terrorism can generate great
fear among members of the public and this can impose huge political pressure on
politicians to be seen to be ‘acting tough’ and doing so quickly. The police and security
services also come under intense public pressure and exert their own pressure on
politicians as well. Politicians, in particular the Home Secretary, cannot, of course,
participate in police investigations themselves and will usually see their role as passing
new, tougher legislation.

Judges, on the other hand, are frequently placed in the difficult position of having
to protect the rights of suspects, as well as ensuring that the police and Crown
Prosecution Service are able to investigate and prosecute terrorist suspects without
excessive restrictions.

In this chapter we investigate some of the features of the legal responses to the events
of 11 September 2001, looking initially at Articles 3 and 5 of the European Convention
on Human Rights (ECHR) and the government’s derogation order under s.14 of
the Human Rights Act 1998 (HRA) which paved the way for subsequent draconian
legislation.

After briefly examining Part 4 of the Anti-terrorism, Crime and Security Act 2004,
we will consider the crucial House of Lords case of A v Secretary of State for the Home
Department (2004). We will then examine the control order mechanism which was
introduced in response to this case under the Prevention of Terrorism Act 2005.

Finally we will look at the current system of terrorism prevention and investigation
measures (TPIMs) and assess the extent to which they undermine human rights.

Core text
¢¢ Le Sueur, Sunkin and Murkens, Chapter 17: Using human rights in the United
Kingdom courts.

Further reading
¢¢ Ewing, K. and J.C. Tham ‘The continuing futility of the Human Rights Act’ (2008)
Public Law 668.

¢¢ Kavanagh, A. ‘Judging the judges under the Human Rights Act: deference,
disillusionment and the “war on terror”’ (2009) Public Law 287.

¢¢ Tomkins, A. ‘National security and the role of the court: a changed landscape?’
(2010) LQR 543.

¢¢ Walker, C. ‘The threat of terrorism and the fate of control orders’ (2010) Public
Law 4.
Public law  20  Human Rights Act 1998 and terrorism page 177

20.1 Background
It is worth looking at the wording of the key ECHR Articles relating to terrorism:

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or


punishment.

Article 5

Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law:

the lawful detention of a person after conviction by a competent court;

the lawful arrest or detention of a person for non-compliance with the lawful order of a
court or in order to secure the fulfilment of any obligation prescribed by law;

the lawful arrest or detention of a person effected for the purpose of bringing him before
the competent legal authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his committing an offence or
fleeing after having done so;

...

(2) Everyone who is arrested shall be informed promptly, in a language which he


understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of
this Article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial...

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation.

Article 15 of the ECHR states the right to derogate from (i.e. opt out of) some of the
Articles, including Article 5, but not Article 3. This includes ‘in time of war or other
public emergency threatening the life of the nation’. Derogations are only permissible
‘to the extent strictly required by the exigencies of the situation’.

Activity 20.1
Imagine you were a senior police officer responsible for counter-terrorism in
October 2001. What areas of change in the law would you propose to the Home
Secretary to make it easier for you to investigate terrorism in the United Kingdom?
Bear in mind the fact that you have limited resources in police manpower and are
very conscious of the fact that the consequences of leaving a terrorist suspect at
liberty could result in catastrophic bloodshed. Unlike Northern Irish terrorism,
many of the suspects are not British citizens.
In the light of your suggestions, highlight which words and phrases of Article 3,
Article 5 and Article 15 (above) are likely to cause the greatest legal difficulties.
At the end of the chapter, review your answers to this activity in the light of the
statutes and case law discussed. To what extent did you anticipate the approach of
the government and the judiciary’s reaction? Were the changes introduced by the
government more or less drastic than your ideas?
page 178 University of London

20.2 Part 4 of the Anti-terrorism, Crime and Security Act 2001


The European Court of Human Rights (ECtHR) case Chahal v UK (1996) had provided that
the UK government could not deport a suspected Sikh terrorist to India because there
was a real risk that he would be attacked and killed by the Indian police. Independent
evidence was produced to indicate that a breakdown of human rights in India had
indeed occurred and Article 3 was used successfully to prevent the suspect’s forced
return to India.

Following the events of 11 September 2001, the government and security services were
faced with the problem of dealing with much larger numbers of terrorist suspects
who were foreign nationals. Many of them came from countries with bad or appalling
human rights records and it was clear that Article 3 would prevent them from being
deported. In many cases the police and security services did not have enough
evidence to charge and convict the suspects.

Taking advantage of the derogation order discussed at Section 20.1, the government

passed the Anti-terrorism, Crime and Security Act 2001 (ACTSA 2001)†, which allowed The Anti-terrorism, Crime
foreign nationals to be detained indefinitely once the Home Secretary had certified and Security Act 2001 was
them as suspected international terrorists who could not be deported because of replaced by the Terrorism
Chahal. Provision was made for extremely limited appeal rights to the controversial Act 2005 which was itself
Special Immigration Appeal Commission (SIAC) and, ultimately, to the Court of Appeal. subsequently repealed by
the Terrorism Prevention and
Activity 20.2 Investigation Measures Act
2011.
Read the article ‘Special advocates: the faces of secret justice’ (Fitzgibbon,
W., 1 November 2012) from the Bureau of Investigative Journalists: www.
thebureauinvestigates.com/2012/11/01/special-advocates-the-faces-of-secret-justice/
and answer the following questions.
a. Who appoints special advocates?

b. Why did Dinah Rose QC criticise the role of the special advocate?

c. Why did the government defend the use of special advocates?

d. Using the article’s estimated figures, how much would you estimate has been
spent on vetting special advocates to date?

20.3 A v Secretary of State for the Home Department [2004]


UKHL 56
This is one of the most crucial human rights cases, as indicated by the fact that it was
heard by nine judges. There were three main issues raised by the appellants who were
all foreign nationals detained indefinitely under Part 4 of ACTSA 2001.

Activity 20.3
Find A v Secretary of State for the Home Department (2004) on LexisLibrary or
Westlaw. Read the judgment and answer the following questions.
a. Was there a public emergency threatening the life of the nation, as required for
the derogation order to be legal?

b. Were the powers of detention under ACTSA 2001 proportionate – ‘strictly


required by the exigencies [necessity] of the situation’?

c. Did the detention powers in s.23 of ACTSA 2001 discriminate unjustifiably against
foreign nationals as opposed to British nationals?
Public law  20  Human Rights Act 1998 and terrorism page 179

Activity 20.4
Find A v Secretary of State for the Home Department (2004) on LexisLibrary or
Westlaw and read Lord Hoffmann’s speech. Answer the following questions.
a. Why did Lord Hoffmann think that the difference between a supporter of
terrorism and an active participant was significant?

b. Why did he find the ECtHR cases not particularly helpful?

c. Why did he think that Northern Irish terrorism had threatened ‘the life of the
nation’ in a way which Islamic terrorism did not?

d. Why did Lord Hoffmann not express a view on the issue of whether the fact
that the legislation was confined to foreign terrorists was ‘irrational and
discriminatory’?

e. Which of Lord Hoffmann’s words are his most devastating criticism of the
government?

20.4 Control orders under the Prevention of Terrorism Act 2005


The Prevention of Terrorism Act 2005 (PTA 2005) was a swift government response to
A v Secretary of State for the Home Department (2004) and introduced a new regime
of control orders to replace Part 4 of ACTSA 2001. Two types of control orders were
introduced.

1. Derogating control orders which would derogate from Article 5 and provide for
individuals to be detained who were considered to pose a high risk to public safety
in respect of the public emergency. No such orders were, in fact, made.

2. Non-derogating control orders purported to be compatible with Article 5. These


orders were to be made by the Secretary of State when they had ‘reasonable
grounds for suspecting’ that a person was involved in ‘terrorism-related activity’.

Some attempt was made to address the arguments of the House of Lords in A v
Secretary of State for the Home Department (2004), including the very approach that
Lord Hoffmann had feared, making the regime also apply to UK citizens. Foreign
deportations would be used once assurances had been obtained from the suspected
terrorists’ countries that they would not be mistreated or tortured on their return.

Inevitably, PTA 2005 came under sustained pressure from a series of legal challenges.
These challenges included arguments over whether the control orders amounted to
a loss of liberty and arguments over procedural fairness in the Special Immigration
Appeals Commission (SIAC).

One of the most important fundamental issues discussed in the litigation concerned
the use of evidence obtained by torture in SIAC hearings. Although the following case
concerned ACTSA 2001, it raised fundamental issues of constitutional principle which
were also relevant to PTA 2005.

Activity 20.5
Read Lord Bingham’s speech in A, D and C v Secretary of State for the Home Department
[2005] UKHL 71 on Westlaw or LexisLibrary and answer the following questions.
a. What was the central question which the House of Lords had to decide?

b. In his discussion of public international law, Lord Bingham quotes the Torture
Convention. What does the Convention say about returning people to countries
where they may be tortured?

c. In his discussion of the Secretary of State’s case, what pragmatic reason for the
use of evidence which may have been obtained using torture was given by the
Secretary of State?

d. Did Lord Bingham approve the appeal by the appellants?


page 180 University of London

20.5 Terrorism Prevention and Investigation Measures Act 2011


– the TPIMs regime
In 2010 the coalition agreement set out the new government’s intention to review
control orders and the counter-terrorism legislation more generally. The Terrorism
Prevention and Investigation Measures Act 2011 established, in place of control orders,
a new regime known as terrorism prevention and investigation measures (TPIMs).

Activity 20.6
Read the article ‘Home Office has “tailored plans” for terror suspects as controls expire’
in the Guardian at www.theguardian.com/uk-news/2014/jan/18/home-office-tailored-
plans-terror-suspects commenting on the issues arising from the expiry of TPIMs.
a. Why was political debate about TPIMs resuming in January 2014?

b. How did the government plan to deal with these individuals after the TPIMs
expired?

Activity 20.7
Read the Parliamentary Joint Committee on Human Rights ‘Post-legislative scrutiny:
Terrorism Prevention and Investigation Measures Act 2011’ report (HL Paper 113) at
www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/113/113.pdf
Answer the following questions.
a. Read the section of the report dealing with relocation. Why does the committee
conclude that there should not be a power to relocate suspects under TPIMs?

b. How did the minister justify to the committee the continuing requirement for
suspects to report to a police station, despite the use of GPS tagging?

Activity 20.8
Read the article ‘Six people are subject to TPIMS, the Home Office
reveals’ in the Guardian at: www.theguardian.com/uk-news/2016/oct/26/
six-people-are-subject-to-tpims-home-office-reveals
What is the reason suggested for the ‘revival in the use of TPIMs’?

20.6 Counter-Terrorism and Security Act 2015


The Counter-Terrorism and Security Act 2015 received Royal Assent on 12 February 2015.
This legislation was fast-tracked through the parliamentary process. It made some
further amendments to the operation of TPIMs.

Explanatory Notes to the Act explain its purpose as follows:

This Act brings provisions in six main areas. First, it will strengthen powers to place
temporary restrictions on travel where a person is suspected of involvement in terrorism.
Second, it will enhance existing Terrorism Prevention and Investigation Measures to
monitor and control the actions of individuals in the UK who pose a threat. Third, it will
enhance law enforcement agencies’ ability to investigate terrorism and serious crime by
extending the retention of relevant communications data to include data that will help
to identify who is responsible for sending a communication on the internet or accessing
an internet communications service. Fourth, it will strengthen security arrangements in
relation to the border and to aviation, maritime and rail transport. Fifth, it will reduce the
risk of people being drawn into terrorism, by enhancing the programmes that combat
the underlying ideology which supports terrorism through improved engagement
from partner organisations and consistency of delivery. Sixth, it will amend existing
terrorism legislation to clarify the law in relation to both insurance payments made in
response to terrorist demands and the power to examine goods under the Terrorism Act
2000. Seventh, it strengthens the independent oversight arrangements for UK counter-
terrorism legislation by extending the statutory remit of the Independent Reviewer of
Terrorism Legislation and enabling a more flexible reporting schedule, and by providing
for the creation of a Privacy and Civil Liberties Board which will support the Independent
Reviewer to discharge his statutory functions.
Public law  20  Human Rights Act 1998 and terrorism page 181

The Counter Terrorism and Border Security Act 2019 updates and strengthens the legal
powers and capabilities of the law enforcement and intelligence agencies. It does so
against the background of the heightened terrorist threat to the United Kingdom and
the government’s updated counter-terrorism strategy published in June 2018.

The Act does not create any new terrorist offences. It does, however, amend the law
to ensure that it is capable of dealing with new threats in the digital age and to reflect
changing patterns of radicalisation. It also provides a new power to strengthen the
UK’s border defences against hostile state activity, as evidenced in the poisoning of
Sergei and Yulia Skripal in March 2018 by suspected Russian agents.

20.7 Summary
1. The key Articles of the ECHR in relation to the legal response to terrorism are Article
3 (absolute prohibition on torture) and Article 5 (right to liberty subject to certain
prescribed exceptions). In addition, Article 15 permits a state to derogate from
Article 5 (but not Article 3) ‘in time of war or other public emergency’.

2. Part 4 of the Anti-terrorism, Crime and Security Act 2001 permitted the Home
Secretary to certify foreign nationals as suspected international terrorists. If they
could not be deported because of the risk of torture (following Chahal), they could
be detained indefinitely without trial with only very limited appeal rights to the
Special Immigration Appeal Commission (SIAC).

3. In A v Secretary of State for the Home Department (2004) the appellants, who were all
suspected foreign terrorists detained under Part 4, were successful in the House of
Lords which held:

a. there was a public emergency threatening the life of the nation

b. the powers of detention under ACTSA 2001 were not proportionate

c. ACTSA 2001 discriminated against foreign terrorist suspects, as opposed to


British terrorist suspects.

4. The Prevention of Terrorism Act 2005, following A, introduced a new system of


derogating and non-derogating control orders. The non-derogating orders were
claimed to be compatible with Article 5, but were subject to a series of cases which
included the wider issue of the acceptability of evidence that may have been
obtained by torture in the UK courts: A, D and C v Secretary of State for the Home
Department (2005).

5. In 2010 the coalition agreement stated that counter-terrorism legislation would


be reviewed and the Terrorism Prevention and Investigation Measures Act 2011
subsequently introduced a replacement for control orders – terrorism prevention
and investigation measures (TPIMs). They will be subject to further legal challenges
in due course.
page 182 University of London

Notes
Feedback to activities

Contents
Using feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Chapter 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

Chapter 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

Chapter 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
page 184 University of London

Using feedback
Feedback is designed to help you judge how well you have approached the activities in
the text. It will show you whether you have understood the question and chosen the
correct solutions.

Do not look at the feedback until you have answered the questions. To do so
beforehand would be pointless, perhaps even counter-productive. Doing the activities
helps you learn. Checking the feedback helps you learn more. Remember that ‘doing’
activities teaches you as much as reading does.
Public law  Feedback to activities page 185

Chapter 2

Activity 2.1
a. Fridays.

b. 13.

c. 20.

d. Autism.

e. An individual MP can ‘talk it out’, using up all the time available to prevent a vote
being taken.

f. A vote on a ‘closure’ motion will be successful if 100 MPs support it.

g. He asked his constituents for their views and identified a concern about
acceptance of Scottish banknotes in England.

h. The Treasury and Scottish Office said that it was an important issue, but they did
not support his proposals.

i. On average, three or four out of 90.

j. Students will have their own views, but a key improvement many MPs would like
would be greater parliamentary debating time. Inevitably this would mean that
there would be less time for government Bills and debates.

Activity 2.2
a. Rob Marris, Labour MP for Wolverhampton South West.

b. Any one of the following:

uu Control of Horses Act 2015

uu Health and Social Care (Safety and Quality) Act 2015

uu Health Service Commissioner for England (Complaint Handling) Act 2015

uu International Development (Official Development Assistance Target) Act 2015

uu Local Government (Religious etc. Observances) Act 2015

uu Local Government (Review of Decisions) Act 2015

uu Self-build and Custom Housebuilding Act 2015.

Activity 2.3
a. John Nicolson, SNP MP for East Dunbartonshire.

b. To make provision for the pardoning, or otherwise setting aside, of cautions and
convictions for specified sexual offences that have now been abolished; and for
connected purposes – Sexual Offences (Pardons Etc.) Bill 2016–17.

Activity 2.4
a. These include the ‘news agenda’ (i.e. topics being discussed in newspapers and on
television), the subject matter of legislation before Parliament and other topics
which the members consider important.

b. Automatic removal of any member who fails to attend 60 per cent of all meetings
of the committee.

c. The questioning of witnesses, including ministers, face to face can sometimes draw
out detailed responses which genuinely inform public debate. Such questioning
can be superficial and time consuming, however, and their suggestions of enabling
the committees to access material from the National Audit Office are attractive.
page 186 University of London

Activity 2.5
a. Any three of the following:

uu referendums enhance the democratic process

uu referendums can be a ‘weapon of entrenchment’

uu referendums can ‘settle’ an issue

uu referendums can be a ‘protective device’

uu referendums enhance citizen engagement

uu referendums promote voter education

uu voters are able to make reasoned judgements

uu referendums are popular with voters

uu referendums complement representative democracy.

Students should give their own evaluation of the strongest argument.

b. Any three of the following:

uu referendums are a tactical device

uu referendums are dominated by elite groups

uu referendums can have a damaging effect on minority groups

uu referendums are a conservative device

uu referendums do not ‘settle’ an issue

uu referendums fail to deal with complex issues

uu referendums tend not to be about the issue in question

uu voters show little desire to participate in referendums

uu referendums are costly

uu referendums undermine representative democracy.

Students should give their own evaluation of the strongest argument.

Activity 2.6
Students will form their own views.

Chapter 3

Activity 3.1
a. Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act
1925.

b. The Acquisition of Land (Assessment of Compensation) Act 1919 provided a scheme


of compensation for compulsory purchase of land which was more generous than
the scheme provided in the Housing Act 1925.

c. The provisions of the Act or order by which the land is authorised to be acquired, or of
any Act incorporated therewith, shall, in relation to the matters dealt with in this Act,
have effect subject to this Act, and so far as inconsistent with this Act those provisions
shall cease to have or shall not have effect.
Public law  Feedback to activities page 187

d. I asked counsel what meaning he attached to those words, and he said they meant
nothing, because the Act of 1919 had said that nothing inconsistent with it shall have
any effect. That appears to me absolutely contrary to the constitutional provision that
Parliament can alter an Act which it has previously passed. It can do so by repealing the
previous Act, and I gather counsel admits that, if it does that, it does not matter that
the Act of 1919 has said that that shall have no effect. But it can also do it in another
way, namely, by enacting a provision clearly inconsistent with the previous Act.

Activity 3.2
No feedback provided.

Activity 3.3
a. The first parliamentary session is the 2012–13 session. The next parliamentary
session will begin in spring 2013. She must ensure that the Bill is not approved by
the House of Commons until after 1 July 2012.

b. A Bill proposing to extend the life of a Parliament beyond five years: s.2(1).

Activity 3.4
Seven Acts have been passed using the Parliament Acts procedure. These are:

1. Government of Ireland Act 1914

2. Welsh Church Act 1914

3. Parliament Act 1949

4. War Crimes Act 1991

5. European Parliament Election Act 1999

6. Sexual Offences (Amendment) Act 2000

7. Hunting Act 2004.

Chapter 4

Activity 4.1
The fifth sub-rule – ‘The law must afford adequate protection of fundamental rights’ –
would not necessarily meet with universal approval. Note the distinction between the
formal and substantive conceptions of the rule of law as discussed in the Craig article
(1997) (see Further reading).

Activity 4.2
Bingham Raz
1 1, 3
2
3
4 5
5
6 7
7
8

Activity 4.3
a. Representations made to him concerning national and international security.

b. Commercial interests and the national economic interest.

c. It was held by the Divisional Court that submitting to a threat would damage the
integrity of the criminal justice system.

d. This reason would have been accepted by the Divisional Court as sufficient and
would not have been so controversial politically.
page 188 University of London

e. The Director was not required by the law or the facts to take this issue into
account, even though he was entitled to: CREEDNZ Inc v Governor General (1981).

f. Students should state their own opinion.

Activity 4.4
a. u experience as a minister of the Crown

uu experience as a member of either House of Parliament

uu experience as a qualifying practitioner

uu experience as a teacher of law in a university

uu other experience that the Prime Minister considers relevant.

Activity 4.5
Students will form their own views.

Chapter 5

Activity 5.1
a. Circle C.

b. Circle A/B/C.

c. Circle A.

d. Circle B.

Activity 5.2
Section 51 – The National Government shall have the following organs:

a. the legislature

b. the executive

c. the judiciary.

Activity 5.3
a. It is an independent non-ministerial public body which works to promote
competition for the benefit of consumers, both within and outside the UK. Its aim
is to make markets work well for consumers, businesses and the economy.
It conducts in-depth investigations into mergers and markets and also has certain
functions with regard to the major regulated industries.

b. On 1 April 2014 the Competition and Markets Authority took over many of the
functions of the Competition Commission (CC) and the Office of Fair Trading (OFT).

Activity 5.4
a. He argued that the British government and Parliament was able to respond to the
banking crisis much more rapidly than the US President and Congress due to the
separation of powers.

b. The reduction in the number of MPs from 650 to 600 proposed in the
Parliamentary Voting and Constituencies Act would have resulted in the ‘payroll
vote’ of government ministers becoming proportionately more significant. Section
14 provides for a review of the effects of the reduction of the relationship between
the government and backbench MPs. However, the reduction in the number of
MPs has now been postponed. Assuming it did ever take place, it seems unlikely
that any Prime Minister would be keen to reduce the payroll vote and thus make it
more difficult to win crucial votes on legislation.

c. A resolution of both Houses of Parliament.


Public law  Feedback to activities page 189

d. The sub judice rule is intended to defend the rule of law and citizens’ right to
fair trial. Where a case or issue is awaiting trial by the courts, that case or issue
should not be discussed in the House in any motion, debate or question in case
that should affect decisions in court. Given the publicity which statements in
Parliament receive, it is clear that a suspect in a criminal trial could easily find that
their jury had been prejudiced against them before the start of the trial.

e. A super injunction is a court order which provides not only that information
about the applicant affecting their privacy be kept anonymous, but also that
the very existence of the super injunction must be kept secret. This clearly
breaches the principle of open justice. The effectiveness of super injunctions has
been undermined by the willingness of some MPs to defy the courts and reveal
information in Parliament, protected by parliamentary privilege. The inability of
the courts effectively to police the spread of information on social media, such as
Twitter, has also limited their effectiveness. Some MPs have argued that the courts
have, in effect, been creating a law of privacy.

Activity 5.5
There is no option available which permits a judge to opt out of the requirement to
‘be faithful and bear true allegiance’ to Queen Elizabeth and her successors. This is
striking because the options do allow for the sensitivities of religious faith or lack of it.
Tomkins’ case is strengthened by this.

Activity 5.6
No feedback provided.

Activity 5.7
Students will form their own views on this issue. It is worth bearing in mind that
some political promises may subsequently turn out to be unaffordable or impractical.
Fear of being taken to court could lead to less flexible and, arguably, more inefficient
government.

Activity 5.8
a. u Members of the House of Commons or the House of Lords

uu Members of the European Parliament

uu Members of the Scottish Parliament

uu Members of the National Assembly for Wales

uu Members of the Northern Ireland Assembly

uu Members of either House of the Irish Parliament.

b. Yes, the distinction is very clear in Northern Ireland. This will clearly have
advantages for the perception of the magistrates as not being biased in their
rulings – a particularly important issue given the continuing deep religious
divisions in Northern Ireland. On the other hand, it is arguable that legislation on
criminal justice in the Northern Ireland Assembly might be better informed if some
of its members had personal experience of acting as magistrates.

Activity 5.9
a. The applicant was appealing against a planning decision in relation to a proposed
conversion of a packing shed into a dwelling house.

b. The deputy-bailiff presided over the States of Deliberation (the legislature) at the
time DDP6 was being considered. The deputy-bailiff was later promoted to become
bailiff and, in his new capacity as the sole legally qualified judge in the Royal Court
and President of the Court of Appeal, he heard the applicant’s appeal against the
refusal of planning permission.
page 190 University of London

c. Article 6(1) which states:

In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.

d. The applicant won, because the court considered that the dual roles of the bailiff
would lead to a perception of bias. Sir John Laws said:

Where there is no question of actual bias, our task under Article 6(1) must be
to determine whether the reasonable bystander – a fully informed layman who
has no axe to grind – would on objective grounds fear that the Royal Court lacks
independence and impartiality.

Activity 5.10
Students will state their own views.

Chapter 6

Activity 6.1
Students will form their own views and some may recall the political atmosphere in
1990. It is perhaps worth remembering that the Conservative government was re-
elected in 1992 by the nation as a whole, although with a different leader.

Activity 6.2
No feedback provided.

Activity 6.3
a. Details from a manual of guidance used by civil servants to decide which pieces
of legislation relating to his personal financial interests should be referred to
Prince Charles for approval. Personal ‘black spider’ letters from Prince Charles
to government ministers on various topics. Such letters are kept secret and it is
unclear to what extent, if at all, government policy is influenced.

b. The government refused to disclose the manual of guidance because of ‘protocol’,


the parliamentary rulebook ‘Erskine May’ and precedent – it had never been disclosed
in relation to previous monarchs and their heirs. ‘Protocol’ on its own seems a flimsy
reason for concealing elements of the law-making process from the public.

Activity 6.4
Students will form their own views.

Activity 6.5
No feedback provided.

Activity 6.6
The written constitution spells out a very precise and limited role for the president.
Clearly the constitution does not, despite their elected status, intend the president
to be an active political ‘player’ in political negotiations. It is difficult to compare the
president’s role with that of the Queen, since her residual powers are very poorly
defined.

Activity 6.7
a. Students will form their own views depending on the PMQs which they viewed.

b. Students will form their own views depending on the PMQs which they viewed.

c. Students will form their own views.


Public law  Feedback to activities page 191

Activity 6.8
a. He thinks that they love it for its entertainment value.

b. The introduction of sound and later television recording, which has encouraged
MPs to show off, and the change from two 15-minute sessions to one 30-minute
session per week in 1997.

Activity 6.9
a. He is referring to the extremely noisy and confrontational atmosphere in which
questions are asked and answers given.

b. 56 per cent.

c. ‘A litany of attacks, soundbites and planted questions from across the spectrum.’

d. u an agreement between the main party leaders to conduct the discussions in a


more civilised way

uu a reduction in the number of questions reserved for the Leader of the


Opposition or an extension of PMQs to 45 minutes or an hour in order that a
greater percentage of time be allocated to the questions of backbench MPs

uu a more detailed review by the Procedure Committee considering, among other


things, whether or not the use of open questions is appropriate.

e. Students will form their own views, although it appears that many MPs would like a
different speaker.

Activity 6.10
a. Accountability and answerability.

b. It was argued that health care was to be delivered by the National Health
Commissioning Board and Clinical Commissioning Groups (CCGs) and the
Secretary of State would have no powers over them. The committee countered
this argument by pointing out that significant powers of intervention were
still available to the Secretary of State and he or she should therefore remain
responsible.

c. Parliament cannot call the chair of the NHS Commissioning Board to account – they
can merely be called as a witness to a select committee, which is not the same as
the accountability of a minister.

Activity 6.11
a. They were expected to state the government’s official position (in favour of
continued membership of the European Community) and not to get drawn into
arguments against it.

b. The Prime Minister would have been aware of the political damage which bitter
and very personal debating styles would inflict on his party. He would also have
been concerned about the damage to relationships between colleagues in the
cabinet which would affect their ability to agree on other issues subsequently.

Activity 6.12
Students will form their own views. The practical advantages for decisive decision
making in cabinet can be balanced against a requirement on ministers to pretend in
public to agree with something they disagree with strongly or else to sacrifice their
careers as ministers. Where the media and electorate are aware of this disagreement
(which is increasingly the case), ministers appear to be hypocrites and, arguably,
confidence in the integrity of politicians as a whole may be undermined. This can
be particularly difficult when there is a coalition government in which the parties’
manifestos conflicted over an issue and where the government has to decide which
party’s manifesto promise must be broken.
page 192 University of London

Activity 6.13
a. It is important that individual civil servants’ actions are subject to fair and impartial
investigation within their departments. An open select committee hearing would
not be an appropriate forum for such an investigation.

b. Refer the questioner(s) to the minister responsible for their department.

c. Students will form their own views. Its effectiveness in practice does, of course, rely
heavily on the willingness of MPs and Lords on select committees to respect the
boundary as well.

Chapter 7

Activity 7.1
A key difficulty lies in the inherent uncertainty caused by government ministers being
permitted to act without any specific authority. It is a key principle of the rule of
law that members of the public and government officials should be able to find out
about the scope of legal powers before they are exercised. The argument that the
power should only be exercised if there are no legal consequences for others does not
recognise the difficulty of anticipating how a decision will affect people’s rights in the
future. The use of this argument in Malone v Metropolitan Police Commissioner (1979)
has implications for personal freedoms, such as the right to privacy.

Activity 7.2
Eric Pickles stated: ‘We are her cabinet, we operate for her. She was sat in the seat
where the Prime Minister traditionally sits and, given it’s her cabinet, she can come any
time she wants.’ This raises some concerns about a blurring of the constitutional roles
of elected politicians, who are accountable to Parliament, and an unelected head of
state. Some students may question whether the cabinet in December 2012 had more
important priorities for discussion than royal table mats.

Activity 7.3
No feedback provided.

Activity 7.4
Arguably the role of the Queen seems inappropriate and there is no reason why the
fish could not be dealt with in the same way as any other protected fish. In any case, it
seems unlikely that the Queen would ever want such a large fish personally!

Activity 7.5
a. Export Control Act 2002 and Export Control Order 2008.

b. Weapons and other dual-use goods may be needed urgently for the protection of
British diplomatic staff. Delays in granting export licences could be disastrous. If
the goods are owned by the Crown, there should be sufficient protection against
the risk of them falling into the wrong hands.

Activity 7.6
a. The Crown is subject to the Health and Safety at Work etc Act 1974, but cannot be
prosecuted for breaches.

b. This is the end result of an administrative process which replaces a prosecution. It


is the way in which HSE formally records its decision that, but for Crown immunity,
the evidence of a Crown body’s failure to comply with health and safety law would
have been sufficient to provide a realistic prospect of securing a conviction.

c. Trade union or other safety officials will be excluded from the hearing:

uu due to national security

uu if a relevant person does not consent


Public law  Feedback to activities page 193

uu if a rule or enactment prohibits it.

d. Students will form their own views. Relatives of victims of accidents caused by
the Crown body might have particular concerns about the lack of transparency in
the decision making and, of course, the fact that no individual or organisation will
have the stigma of a criminal conviction. There is no opportunity in the process for
witnesses to be heard in public.

Activity 7.7
Link to story relating to a prerogative Number of prerogative in
governance of Britain report
www.steelnavy.com/NNTAtlanticConveyor.htm 26
www.heraldscotland.com/news/12183960. 9
Mandelson_acts_to_free_bomber/

http://news.bbc.co.uk/1/hi/uk/4272171.stm 17
www.cilex.org.uk/about_cilex/who_we_are/royal-charter 35

Activity 7.8
a. During the Second World War British armed forces, on behalf of the Crown,
destroyed oil refineries and other related assets belonging to the appellants in
order to prevent them falling into the hands of the invading Japanese army. The
appellants sought compensation.

b. Scotland, although Lord Reid did not believe that the result of the case would have
been different if either alternative had been applied.

c. It underlined the fact that the power of making war was not the sole responsibility of
the Crown, but reserved the power of the Crown to act on its own to repel an invasion
or internal revolt – emergencies where immediate action would be required.

d. No. His analysis of pre-1914 case law and the cases arising out of the First World War
held that compensation was payable.

Activity 7.9
Students will form their own views. Although it is always important to be careful
when reading descriptions of cases by non-lawyers, it is difficult not to be hugely
sympathetic towards this unhappy community.

Activity 7.10
The phrase ‘confirmed the decision’ shows that Parliament’s role is to apply after
the government has made the decision. It is unclear what the legal position would
have been if the House of Commons had voted against the decision in March 2003.
Certainly the government had made commitments to its allies, in particular the USA,
beforehand and preparations and expenditure were already taking place.

Activity 7.11
a. In the past the monarch’s power was limited by the practical requirement to
get the approval of Parliament for the costs of waging war. This was a particular
difficulty for Charles I in the 17th century. Now, the Prime Minister can make
the decision and, because his or her party also has a majority in the House of
Commons, he or she is able to obtain approval for the expenditure with minimal
effective constraints.

b. It was felt that it was important that the armed forces knew that the country was
really behind them and that they had the support of Parliament.

c. The six aspects are:

uu escalation of the conflict through rhetoric

uu decisions being skewed because Parliament would only have access to limited
information
page 194 University of London

uu compromising operational security through too much detail being revealed

uu limiting operational flexibility if subsequent parliamentary approval is


required when the situation changes during the conflict

uu undermining clarity about the timetable for preparation

uu removing the United Kingdom’s ‘strategic poise’ by giving the opponent early
notice of intent.

d. It was feared that individual servicemen could be prosecuted in the UK courts for
an unlawful deployment. There was also the potential risk of servicemen refusing
to obey orders in respect of an unlawful deployment.

e. It was argued that an ‘unpredictable and damaging level of uncertainty’ would be


introduced to the legality of the actions of the armed forces. Morale would also
be affected if the debate and vote revealed that a large minority in Parliament
opposed the military action.

Activity 7.12
The current use of the royal prerogative is outdated and should not continue in the
21st century. A parliamentary convention should be created determining Parliament’s
role in the decision-making process. The convention should include the following
features.

uu The government should seek parliamentary approval before deployment of armed


forces outside the United Kingdom into actual or potential conflict.

uu The government should indicate the objectives, legal basis, likely duration and size
of the deployment.

uu If, because of emergency and security, such prior information cannot be provided,
the government should provide it retrospectively within seven days of the
commencement or as soon as possible.

uu Parliament should be kept informed of the progress of the deployments and, if


their nature changes, should be asked to renew its approval.

Activity 7.13
Approval was sought a few days after the bombing of Libya had begun. A particular
effort was made to show the legal justification for the war, UN Security Council
Resolution 1973. The then Prime Minister highlighted the objectives of suppressing
Libyan air defences and protecting civilians, particularly in the rebel city of Benghazi,
by enforcing the ‘no-fly zone’. The deployment of RAF Typhoon jets had been revealed
prior to the debate but there was no indication as to the numbers of jets involved.
Importantly, there was no indication as to the likely duration of the UK involvement
– David Cameron’s comment that Libya would not become ‘another Iraq’ did not give
even an approximate estimate.

Activity 7.14
No feedback provided.
Public law  Feedback to activities page 195

Chapter 8

Activity 8.1
a.

Category Act
Public law rights Any two of:
European Union Act 2011
Fixed-term Parliaments Act 2011
Parliamentary Voting System and Constituencies Act 2011
Taxation Any two of:
Appropriation Act 2011
Budget Responsibility and National Audit Act 2011
Finance Act 2011
National Insurance Contributions Act 2011
Supply and Appropriation (Main Estimates) Act 2011
Create powers for Any two of:
public bodies
Charities Act 2011
Education Act 2011
Localism Act 2011
Pensions Act 2011
Public Bodies Act 2011
Sports Ground Safety Authority Act 2011
Regulate commercial Energy Act 2011
activity
Postal Services Act 2011
Social control Any two of:
Armed Forces Act 2011
London Olympic Games and Paralympic Games (Amendment)
Act 2011
Police (Detention and Bail) Act 2011
Police Reform and Social Responsibility Act 2011
Terrorism Prevention and Investigation Measures Act 2011
Other Any two of:
Coinage Measurement Act 2011
Estates of Deceased Persons (Forfeiture Rule and Law of
Succession) Act 2011
Sovereign Grant Act 2011
Wreck Removal Convention Act 2011

b. Students will formulate their own judgments, taking into account the different
features of the relevant Acts.

Activity 8.2
Section 3 gives the authority to the Lord Chancellor and Secretary of State for Northern
Ireland to issue the writs for elections after dissolution (this was previously dealt
within the proclamation summoning the new Parliament and an associated Order in
Council).

Activity 8.3
a. Volume 515, columns 621–710.

b. Nick Clegg, the Deputy Prime Minister.

Activity 8.4
a. Students will form their own views. Whatever the reader’s personal political
opinions, it could be argued validly that any government would find that some
promises were impractical, others were politically too difficult and some would
turn out to be considerably more complex and time consuming than they could
anticipate.
page 196 University of London

b. Students will form their own views in the light of their personal political
perspectives. In the author’s personal view the breaking of a clear and specific
promise not to reorganise the National Health Service is the most damaging
criticism.

Activity 8.5
The Woodland Trust argued that it was wrong to remove the exemption from the
protection of tree preservation orders of trees and branches which were dead. It
highlighted the biodiversity and amenity value of dead trees and branches. The
government rejected this argument on the grounds that it would impose excessive
burdens on local councils and landowners.

Activity 8.6
The wording was clearly informed by the experience of the police and authorities in
dealing with protesters living in tents in Parliament Square and elsewhere in London.

Activity 8.7
a. Section 1 of the Public Bodies Act 2012.

b. The explanatory note shows that the government recognised that the organisation
was continuing to do important work. Arguably, the transfer of its status from the
public sector should have been included in an Act of Parliament.

Activity 8.8
a. It stated that it would publish draft bills for pre-legislative scrutiny ‘wherever possible’.

b. Three months.

c. Parliamentary Voting System and Constituencies Bill, Fixed-term Parliaments Bill.

Activity 8.9
No feedback provided.

Activity 8.10
a. First reading

Second reading

Committee stage

Report stage

Third reading.

b. MPs are able to grant a second reading if they are in agreement.

c. A Public Bill is examined in a Public Bill Committee in the House of Commons. Only
members of that committee are able to participate and vote on it. In the House of
Lords, all members are able to contribute to the debate and vote on the Bill.

d. In the House of Commons, amendments will only be considered if the Speaker


agrees that they may be discussed. There is no such control over amendments in
the House of Lords.

Activity 8.11
a. Section 19 requires ministers to make a formal ‘statement of compatibility’ and has
focused ministers’ minds, changing the Whitehall culture.

b. The statement should state whether, in the minister’s view, the Bill provides for
significant constitutional change and, if so:

uu what is the constitutional impact of the proposals upon existing arrangements

uu whether and, if so, how the government engaged with the public in developing
the policy proposals and what was the outcome of that public engagement
Public law  Feedback to activities page 197

uu in what way the detailed policies contained in the Bill were subjected to
rigorous scrutiny in the cabinet committee system

uu whether a Green Paper was published, what consultation took place on the
proposals, and the extent to which the government agree or disagree with the
responses given

uu whether a White Paper was published and whether pre-legislative scrutiny was
undertaken and the extent to which the government agree or disagree with
the outcome of that process

uu what is the justification for any referendum held, or to be held, on the


proposals

uu when and how the legislation, if passed, will be subject to post-legislative


scrutiny.

Activity 8.12
a. 15 January 2012 (two months after the Act was passed on 15 November 2011).

b. 15 November 2011. As this is the commencement section itself (referred to in s.240


as ‘this section’), it commences on the day the Act is passed.

Activity 8.13
uu Openness and transparency

uu accountability

uu trust and participation in decision making

uu quality of decision making.

Activity 8.14
The UK Parliament glossary defines a ‘sunset clause’ as follows: ‘A provision in a Bill
that gives it an “expiry date” once it is passed into law. “Sunset clauses” are included
in legislation when it is felt that Parliament should have the chance to decide on its
merits again after a fixed period.’

Activity 8.15
No feedback provided.

Chapter 9

Activity 9.1
a. Cat and Dog Fur (Control of Import, Export and Placing on the Market) Regulations
2008 SI 2008/2795.

b. The Lord Chief Justice made the rules under s.144 of the Magistrates’ Courts Act
1980.

c. The Secretary of State for Transport under s.14(1)(a) of the Road Traffic Regulation
Act 1984. NB A very large proportion of statutory instruments in recent years relate
to temporary road closures – a factor which is often ignored when annual numbers
of statutory instruments are compared.

Activity 9.2
a. The Maximum Number of Judges (Scotland) Order 2016 (SI) created under the
Court of Session Act 1988.

b. The Order approving the Same-Sex Marriage (Guernsey) Law, 2016. This is an
example of the exercise of the ministerial executive power relating to the Channel
Islands – a feature of Crown privilege discussed at Section 7.2.
page 198 University of London

Activity 9.3
It is one of the sections of Chapter 3, Part 5 of the Localism Act 2011 which is not brought
into force by para.2 of this order because it only applies to Wales. A separate order made
by the Welsh ministers of the Welsh Assembly government would be required.

Activity 9.4
a. Section 23 authorises the Treasury to make regulations.

b. The Royal Mail Group Limited (registered number 04138203).

c. Students will form their own views. An important issue to consider is whether or
not they believe that MPs and members of the House of Lords would be willing and
able to contribute helpfully in debates over the technical material in this order if it
had been included in the Bill itself.

Activity 9.5
Directive 2009/21/EC seeks to ensure that member states effectively and consistently
discharge their international law obligations as regards ships flying their flag and to
enhance safety and prevent pollution from those ships.

Activity 9.6
a. Section 1(1) and paras 10 and 11(1)(c) Schedule 1 to the Building Act 1984.

b. Fire precautions in car parks, large storage buildings and high buildings.

c. There are clearly many practical and safety reasons why the same safety
requirements should be imposed on these types of buildings throughout England,
rather than varying according to local area. Given the technical subject matter,
which most MPs and members of the House of Lords would be unable to debate
intelligently, the use of a ‘Henry VIII clause’ here seems appropriate.

Activity 9.7
21 November 2012 and 31 January 2013.

Activity 9.8
Answers will vary depending on the statutory instruments subject to this procedure.
Students should note that sometimes the periods are extended.

Activity 9.9
a. ‘Additional spouse’, in the context of a polygamous marriage, means ‘a spouse by
the party to the marriage who is additional to the party to the marriage’.

b. ‘A spouse of either party to the marriage who is additional to the other party to the
marriage’.

c. This does seem a clear improvement on what was a meaningless definition. The
response of the department does indicate a certain amount of embarrassment
among its legal draftsmen.

Activity 9.10
The objective of the rules was to address concerns raised in the Family Justice Review
2012 about delays in family cases affecting children. This is clearly a sensitive political
and legal issue, especially as the areas of change which the rules implement affect
expert evidence, which can be decisive in such cases.

Activity 9.11
a. Human Rights Act 1998 and Part 1 of the Legislative and Regulatory Reform Act 2006.

b. This requires the minister to have regard to representations, House of Commons


and House of Lords resolutions, and committee recommendations that are made
within 60 days of laying, in order to decide whether to proceed with the order and
(if so) whether to do so as presented or in an amended form. An order dealt with
Public law  Feedback to activities page 199

under this procedure must be expressly approved by both Houses of Parliament


before it can be made.

c. Three hours.

Chapter 10

Activity 10.1
a. He thought that the role of the House of Lords had changed from being merely
a ‘revising chamber’. It was now the only part of the legislature which could
curb the executive. Note that Lord Richard was a Labour peer at a time when the
Conservative Party formed the government in the House of Commons with an
unassailable majority.

b. She argued that the convention did not relate to the strength of the parties in the
two Houses. Instead it related to the constitutional relationship between the two
Houses and it remained ‘constitutionally wrong’ for the House of Lords to reject
proposals which had been ‘definitely put before the electorate’. A key political
difference from 1993, when Lord Richard was speaking, was that Baroness Jay was
a minister in the new Labour government which had a large majority in the House
of Commons. An assertive House of Lords now had the power to hinder her party’s
programme of legislation.

Activity 10.2
There is nothing specific at all on this matter in the Liberal Democrat document.
Labour state that: ‘In England people will not have to pay for education or training
when they get it. This means university education will be free too.’

The Conservative Party manifesto discusses universities in the context of delivering


‘more good school places’ by asking ‘universities and independent[s] to help run state
schools’.

Overall, there is not much by way of detail or specific promises which could be easily
relied upon.

Activity 10.3
a. 1. The Salisbury–Addison convention cannot and does not apply since no one
voted for the coalition agreement.

2. The convention does not apply strictly but, since the electorate by its votes
ensured a hung Parliament and that therefore a coalition was more than likely,
the agreement forged between the two parties should count as a manifesto.

3. The Lords should respect only those policies which were put forward in the
manifestos of both the Tories and the Liberal Democrats and are therefore
similar.

b. He thought that this would be ignoring political realities in the House of Commons.
Conventions needed to be flexible.

Activity 10.4
a. Be it enacted by The Queen’s most Excellent Majesty, by and with the advice and
consent of the Commons in this present Parliament assembled, in accordance with
the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same,
as follows…

b. 1. Legislation made under the 1911 Act is delegated or subordinate, not primary.

2. The legislative power conferred by s.2(1) of the 1911 Act is not unlimited in scope
and must be read according to established principles of statutory interpretation.
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3. Among these is the principle that powers conferred on a body by an enabling


Act may not be enlarged or modified by that body unless there are express
words authorising such enlargement or modification.

4. Accordingly, s.2(1) of the 1911 Act does not authorise the Commons to remove,
attenuate or modify in any respect any of the conditions on which its law-
making power is granted.

5. Even if, contrary to the appellants’ case, the Court of Appeal was right to
regard s.2(1) of the 1911 Act as wide enough to authorise ‘modest’ amendments
of the Commons’ law-making powers, the amendments in the 1949 Act were not
‘modest’, but substantial and significant.

c. The meaning of ‘shall become an Act of Parliament’ in s.1(1) and s.2(1) was
unambiguous and could only denote primary legislation. A new method of creating
Acts of Parliament had been approved.

d. Lord Bingham used the resolution as a clear indication of Parliament’s intention.


Given that a literal interpretation of the words of the Parliament Act 1911 was clear,
there was no need to resort to an examination of Hansard under Pepper v Hart (1993).

e. Article 3 of the First Protocol of the ECHR provides that elections must be held at
regular intervals.

f. He highlighted the fact that the Acts enacted under the 1911 Act were of major
constitutional importance while those enacted under the 1949 Act were of minor
or no constitutional significance. The reason for this difference is perhaps the fact
that the use of the Parliament Acts is a last resort for a government which, for one
reason or another, is seeking to change the law in a way in which the majority
of the House of Lords is adamantly opposed to. While opposition to ‘Home Rule’
(one step short of full independence for the island of Ireland) being proposed
in the Government of Ireland Act 1914 might seem, to most students, to be on
a completely different scale of constitutional importance to the prohibition
of the right to pursue small foxes across the English countryside on horseback
accompanied by baying hounds (Hunting Act 2004), the key point is that to the
members of the House of Lords both issues were sufficiently important to compel
them to defy the wishes of the government and House of Commons.

Activity 10.5
No feedback provided.

Chapter 11

Activity 11.1
a. Belgium

France

Germany

Italy

Luxembourg

Netherlands.

b. Denmark

Ireland.

Activity 11.2
No feedback provided.
Public law  Feedback to activities page 201

Activity 11.3
a. Donald Tusk.

b. Twice every six months. Special meetings may also be convened by the President of
the European Council.

Activity 11.4
a. €34.4 billion (£29 billion).

b. The Connecting Europe initiative.

c. Hermann Van Rompuy (former President of the European Council) started the
negotiation with his own proposals, but had to reach agreement by a ‘bazaar’ of
trading promises. A lot of his time seems to have been spent with small groups of
leaders and at one stage he was repeatedly trying to phone the French president.

Activity 11.5
a. No.

b. No. Although a clear majority of member states supported the motion, the
opponents included a number of countries with large populations, including, of
course, the most populous EU country, Germany. It was therefore not possible to
get votes from member states with 65 per cent or more of the EU population.

c. Although the reasons for not adopting a simple majority system of voting as the
default system can be justified on democratic grounds, given that it would be
unfair for a grouping of small countries to impose their will on the larger countries,
it is arguable that achieving the votes of countries with over 50 per cent of the
population of the European Union should be enough to demonstrate legitimacy.

Activity 11.6
a. Additional customs duties on imports of certain USA products (codification) and
adoption of the legislative act approved by Coreper, Part 2, on 24 May 2018.

b. It was intended to stabilise the dairy markets.

c. No feedback provided.

Activity 11.7
a. 2007.

b. Road transport.

c. Three ‘priority areas for action’ are identified:

Increasing the efficiency of the transport system by making the most of digital
technologies, smart pricing and further encouraging the shift to lower emission
transport modes

Speeding up the deployment of low-emission alternative energy for transport,


such as advanced biofuels, electricity, hydrogen and renewable synthetic fuels and
removing obstacles to the electrification of transport

Moving towards zero-emission vehicles. While further improvements to the


internal combustion engine will be needed, Europe needs to accelerate the
transition towards low- and zero-emission vehicles.

d. Students will form their own views.

Activity 11.8
a. Jean-Claude Juncker from Luxembourg.

b. Karmenu Vella from Malta.


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Activity 11.9
a. John Dalli, the health commissioner from Malta.

b. He was alleged to have accepted bribes from a Maltese tobacco entrepreneur in


return for changing EU legislation on ‘snus’, a type of smokeless tobacco.

c. The EU anti-fraud office (OLAF).

Activity 11.10
a. This will depend on the initiative selected.

b. This will depend on the initiative selected.

c. Students will form their own views, depending on the initiative selected.

d. Students will form their own views, depending on the initiative selected.

Activity 11.11
a. Legally and politically important.

b. The Data Protection Package comprised the General Data Protection Regulation
(document (a)) and the Police and Criminal Justice Data Protection Directive (the
PCJ Directive, document (b)). It was initially proposed in January 2012.

Activity 11.12
a. Spain and the proposed secession of Catalonia.

b. The Schengen Agreement (allowing citizens to cross borders within the EU states
which had agreed to it) and the Euro.

Activity 11.13
The Commission were proposing to abolish production quotas for beet and cane sugar
by 2015 and to ease import tariffs on raw cane sugar. The sub-committee agreed with
the proposal but thought that tariffs for imported refined cane sugar should also be
eased.

Activity 11.14
a. Eleven countries – but as the two separate chambers of Parliament in a state can
issue ‘reasoned opinions’, the number required for a yellow card is 18 of 56.

Those submitting reasoned opinions were: the UK Parliament (both Houses), the
French Senate, the Dutch Parliament (both Chambers), the Swedish Parliament,
the Irish Parliament (both Chambers), the Hungarian Parliament, the Czech Senate,
the Slovenian Chamber, the Cypriot Parliament, the Romanian Chamber and the
Maltese Parliament.

b. Yes, for more detail on the EPPO please refer to:

http://ec.europa.eu/justice/criminal/judicial-cooperation/public-prosecutor/
index_en.htm

Activity 11.15
Article number Subject matter

2 Respect for human rights by member states

7 Mechanism for suspension of a member state on grounds of breach of Article 2

18 Appointment and role of high representative for foreign affairs and security policy

35 Cooperation of diplomatic and consular missions in non-EU countries and


international negotiations
Public law  Feedback to activities page 203

Activity 11.16
a. u Customs union.

uu Competition rules for the internal market.

uu Monetary policy for EU states which have adopted the Euro.

uu Common fisheries policy.

uu Common commercial policy.

b. The welfare of animals, as sentient beings, is to be protected subject to the


religious rites, cultural traditions and regional heritage of member states.

c. u To increase agricultural productivity.

uu To ensure a fair standard of living for farmers and their workers.

uu To stabilise markets.

uu To ensure availability of supply.

uu To ensure reasonable prices for consumers.

Activity 11.17
a. Police cooperation and judicial cooperation in judicial matters.

b. Six months before the expiry of five years since the Treaty of Lisbon was made (i.e.
31 May 2014).

Activity 11.18
Students will form their own views.

Activity 11.19
a. He did not attend the ceremony itself, but signed it later on.

b. He argued that there was no substantial difference from the previous draft treaty
and the Prime Minister should therefore call a referendum.

Activity 11.20
1. Codification of an existing competence.

2. Any provision which applies to other member states but not the United Kingdom.

3. Accession of a new member state by treaty.

Activity 11.21
a. Summaries will depend on the student’s choice.

b. This will depend on the student’s choice.

Activity 11.22
a. This will depend on when the student studies the course. At the time of writing the
2019 elections had not yet been conducted.

b. The overall turnout was 42.54 per cent. For details please refer to:
www.europarl.europa.eu/elections2014-results/en/election-results-2014.html

c. The turnout in the UK was 35.6 per cent.

Activity 11.23
a. Andreas Mavroyiannis, Deputy Minister for European Affairs of Cyprus.

b. The European Parliament refused to negotiate and set an agreement on draft


amending budget 6 of 2012 as a pre-condition.
page 204 University of London

Activity 11.24
a. It had been significantly amended on several occasions and replacing it with a
regulation would aid clarity.

b. To harmonise comprehensively rules on cosmetics in member states in the


interests of the internal market as well as ensuring a high level of human health.

c. It is noticeable that the European Union Regulation has a more discursive, narrative
style, setting out what ‘should’ happen. The UK regulations adopt a very precise
legalistic style, which is harder to follow as a narrative.

d. Council Directive 92/43/EEC on the conservation of natural habitats and of wild


fauna and flora.

Chapter 12

Activity 12.1
a. Vertical direct effect means that individuals can invoke a European provision in
relation to the state. Horizontal direct effect means that an individual can invoke a
European provision in relation to another individual.

b. Primary legislation (i.e. the treaties) must be:

uu precise and clear

uu unconditional and

uu not require any further measures, either European or national.

c. In these circumstances only vertical direct effect is available and the right can only
be enforced against the state, not against the individual.

Activity 12.2
a. National law was not rescinded or repealed, but was simply suspended.

b. Citizens are uniformly protected by a European law assured across all EU territories.

Activity 12.3
a. £100 million.

b. The easy politician’s answer is simply to blame the European courts. A more
truthful explanation would be to point out that Parliament passing legislation
in defiance of clear European law is likely to prove very expensive to taxpayers,
however popular it might be in the short term.

Activity 12.4
a. The argument of Sunderland City Council that EU law was ‘entrenched’ was not
strong. As a decision of the Divisional Court, Thoburn could be overturned by
the Court of Appeal or Supreme Court, although this was unlikely as it was well
reasoned.

b. No. It quoted Professor Hartley:

[T]he Bill, assuming it becomes law, will be an Act of Parliament. We know that
Parliament cannot bind future Parliaments, so a future Parliament could always change
it. It could repeal it – totally repeal it – or amend it, or repeal it in part. I don’t think that
this Bill limits the powers of Parliament, any more than the European Communities Act
1972 does – the original one.
Public law  Feedback to activities page 205

Activity 12.5
a. That there should be ‘a mechanism whereby the House of Commons can decide
that a particular EU legislative proposal should not apply to the UK’.

b. He stated ‘If national parliaments all around the EU were regularly and unilaterally
able to choose which bits of EU law they would apply and which bits they wouldn’t,
then the European single market wouldn’t work. Indeed, even a Swiss-style free
trade arrangement with the EU wouldn’t work’.

Activity 12.6
a. James Wharton MP.

b. Ballot Bill.

c. No. It reached Committee stage in the House of Lords but no further days were
scheduled and it did not become law.

Activity 12.7
a. 28 May 2015.

b. It made provision for the holding of a referendum in the UK and Gibraltar on


whether the UK should remain a member of the European Union.

c. The 2015–16 Bill was a government Bill rather than a Private Member’s Bill. It
became law, as the European Union Referendum Act 2015, receiving Royal Assent
on 17 December 2015.

Chapter 13

Activity 13.1
The key words are highlighted in bold below.

That the two Kingdoms of England and Scotland shall upon the First day of May which shall
be in the year One thousand seven hundred and seven and for ever after be united into
one Kingdom by the name of Great Britain And that the Ensigns Armorial of the said United
Kingdom be such as Her Majesty shall appoint and the Crosses of St George and St Andrew
be conjoyned in such manner as Her Majesty shall think fit and used in all Flags Banners
Standards and Ensigns both at Sea and Land.

Activity 13.2
a. Legislation relating to Antarctica becomes a reserved matter under Schedule 5 to
the Scotland Act 1998, making it subject to the UK Parliament. To date, the Scottish
Parliament has not, in fact, attempted to legislate for Antarctica’s penguins!

b. The stamp duty land tax will now only apply in England, Wales and Northern
Ireland: s.29.

Activity 13.3
The FSA describes as a strength its ability to ‘take into account specific Welsh needs
and issues, whilst still ensuring a consistent, UK-wide approach to food safety which,
of course, does not recognise political or geographical boundaries’. Accountability to
the National Assembly may, in time, lead to different standards being applied in Wales
from England. This may add to cross-border food businesses’ costs but may make
Welsh food safer too.
page 206 University of London

Activity 13.4
a. To set up an inquiry into child abuse in a variety of public institutions which looked
after children between 1922 and 1995.

b. The First Minister and Deputy First Minister are jointly responsible: s.2.

Activity 13.5
a. u The Assembly will move from four- to five-year terms.

u Candidates for the National Assembly will be able to stand in both a


constituency and a region at the same time.

u Assembly members will no longer also be able to sit as MPs in the UK


Parliament.

b. Changes to Assembly constituencies will not take place because the boundary
commissions for England, Wales and Scotland will now report on UK parliamentary
constituencies in 2018 not 2015, as originally planned.

Activity 13.6
a. The Prime Minister.

b. The Council of the European Union also draws its membership from ministers of
the individual governments whose portfolios match the topics being discussed.

Activity 13.7
a. Whether or not the franchise should include those of 16–17 years of age.

b. Sixteen weeks ending with the date of the referendum.

Activity 13.8
Certification by the Speaker of the House of Commons that the bills meet two criteria:
first, they relate only to England (or England and Wales); and second, comparable
policy decisions are devolved elsewhere in the UK.

Activity 13.9
a. Pressures on their budgets have made them reluctant to commit to any fresh
expenditure. In addition they lacked confidence because of their dysfunctional
relationship with central government.

b. They were able to charge for a much wider range of services.

c. It has enabled greater cross-council cooperation.

Activity 13.10
a. The Local Government (Miscellaneous Provisions) Act 1982.

b. They must be single-use and disposable or sterilised after each treatment and must
be disposed of in accordance with legislation and local authority advice.

c. A.L. Wright, a civil servant, on behalf of the Secretary of State for Health.

Activity 13.11
a. Because of cross-border issues as well as the belief that it would lead to the break-
up of the union.

b. u A Welsh judiciary.

uu A Welsh court system.

uu Welsh cases could only be dealt with in Wales.


Public law  Feedback to activities page 207

Activity 13.12
a. The Treaty of Union does not currently ‘sound’ as an international treaty under
international law.

b. The remaining United Kingdom would inherit all of the existing United Kingdom’s
international rights and obligations. Scotland would be treated as a brand new
state which would probably have to apply for membership to the United Nations
and European Union. The break-up of the Soviet Union, following which Russia
inherited its right to a seat on the UN Security Council, was cited as the most
relevant historical example.

Activity 13.13
a. The turnout was 84.6 per cent of the electorate.

b. The further powers to be devolved are:

uu Stamp duty land tax and landfill tax.

uu Extending borrowing powers.

uu New capital borrowing power.

uu Scottish rate of income tax.

c. Students will form their own views.

Chapter 14

Activity 14.1
a. In 2017, 9 out of 38 (24 per cent); in 2015, 8 out of 39 (21 per cent).

b. 0 per cent.

c. Students will form their own views. The overall percentage of female judges has
increased slightly to just over 28 per cent, despite the fact that slightly over half the
UK population is female and a higher percentage of women qualify as lawyers. The
overall percentage of BME judges has remained largely unchanged. It is, of course,
particularly noticeable how few women and BME judges have progressed to the
most senior judiciary.

Activity 14.2
a. There was particular concern over the Nat Fraser case, as well as an increase in the
number of Scottish cases reaching the Supreme Court.

b. The Justice Secretary threatened to cut Scottish funding of the Supreme Court.

c. Clearly the threat was made in response to political pressures and arguments
over Scottish independence. However, it is surely improper to threaten judges
with a loss of funding rather than attempt to win the political argument for
independence.

Activity 14.3
a. Ongoing cases are not permitted to be discussed in Parliament.

b. Rules and conventions prevent discussion of:

uu the merits of government policy

uu the merits of individual cases or decisions or other judges and politicians

uu the merits of prospective legislation

uu the administration of justice, apart from matters relating to the judge’s own
area of responsibility.
page 208 University of London

Activity 14.4
a. The panel of the House of Lords was split evenly and his vote against General
Pinochet was decisive. His ‘opinion’ simply agreed with Lord Nicholls and Lord
Steyn – he did not give his own reasoning.

b. He should have declared his involvement as a director of the Amnesty International


charity and his wife’s employment by Amnesty, because Amnesty International was
an ‘intervener’ in the case. The parties would have had the opportunity to object.

c. The argument here is that Lord Hoffmann’s wife would have had unfair
opportunities to promote the Amnesty International arguments to her husband
in private. It is perhaps going too far to say that every contact or degree of
involvement by the judge’s spouse, such as mere membership of an organisation
such as Amnesty International, should be disclosed.

Activity 14.5
uu The President of the Supreme Court

uu a senior judge appointed by the President of the Supreme Court from


anywhere in the United Kingdom who is not a Supreme Court Justice

uu a member from the Judicial Appointments Commission of England and Wales*

uu a member from the Judicial Appointments Board of Scotland*

uu a member from the Judicial Appointments Commission in Northern Ireland.*

* At least one of these appointees must be a layperson and all are nominated by
the chairman of their respective commissions/board.

Activity 14.6
The Judicial Appointments Commission and the Lord Chancellor.

Activity 14.7
a. He argues that it leads to a degree of collusion which prevents divisive matters
from being debated openly in Parliament.

b. The Bishop of Liverpool, who had demonstrated compassion and local knowledge.

Chapter 15

Activity 15.1
No feedback provided.

Activity 15.2
a. What cruelty free international described as the inadequate care of animals and
weak penalties imposed on those staff found to have breached their licences.

b. The Home Office.

Activity 15.3
a. The termination of a contract with the applicant under which the applicant
provided care for dementia patients.

b. Because it was a private law issue and the applicant had remedies it could seek
under the contract itself.

c. Here the dispute related to the rate of payment for residential care by the
applicants of residents for whom the council had a statutory duty. The council was
obliged to follow statutory guidance and could not simply seek the lowest bid.
Public law  Feedback to activities page 209

Activity 15.4
a. The archaeological excavation licence issued by the Ministry of Justice authorising
the University of Leicester to decide on the place for reburying Richard III’s bones.

b. The Plantagenet Alliance which includes (very) distant relatives of Richard III.

c. Although it was considered unlikely that the descendants would be close enough
to be granted personal standing, this did not matter as there was sufficient public
interest in the matter for standing to be granted. See para.82 of the judgment
which states:

It is fair to say that the relationship of Mr Nicolay and the other collateral relatives to
their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage. The
Claimant’s interest – indeed, that of the 16th, 17th and 18th generation descendants
– may not suffice for personal standing. However, the points raised have a broader
public interest sufficient for the Claimant to have standing in this case as a public
interest litigant.

Activity 15.5
The following words emphasise that judicial review is about the legality of the process
and the power to make the decision – and not the merits.

Paragraph 74 states: ‘It should be emphasised that the case is about procedures, duties
and powers. The one issue which is not for us to determine, is where the remains of
Richard III should be re-interred. That matter must be resolved by the body which has
the responsibility in law for making the decision.’

Activity 15.6
A quashing order instructing the Ministry of Justice to reconsider the terms of the
archaeological excavation licence and issue a replacement authorising burial in York,
or at least a wider consultation process.

Activity 15.7
a. In England, the Secretary of State and in Wales, the Welsh ministers: s.9.

b. The offence must be triable only as a summary offence (i.e. magistrates’ court
only). The maximum fine must not exceed level 3 on the standard scale. Following
conviction, a failure to pay the fine cannot be penalised by a daily fine greater
than £40.

Activity 15.8
a. Changes to duty schemes (including day crews) and closure of fire stations.
Availability of sufficient fire crew and a sufficiently comprehensive coverage of
Hertfordshire by fire stations is very important for public safety and is a sensitive
political issue.

b. Decisions on the location of gypsy sites. This is also a politically sensitive issue, as
well as involving planning issues.

Activity 15.9
a. One in six.

b. Too many weak cases taking up too much court time and frustrating the bodies
concerned (including, of course, himself and his colleagues). Judicial review
applications being used to generate publicity – we have seen at Section 15.3 how
the BUAV highlighted their (limited) judicial review success on their website.

c. Students will form their own views. The author suspects that the Justice Secretary
finds successful judicial review applications to be the most frustrating ones.
page 210 University of London

Activity 15.10
a. It has dropped proposals to prevent judicial review challenges by individuals and
groups not directly affected by the specific decision in question.

b. The current position, where the court has a discretion to refuse judicial review
if the same outcome would have been ‘inevitable’, even if the conduct being
challenged had not taken place, is to be replaced. Instead the court will be
required to refuse leave to bring a judicial review challenge if it is ‘highly likely’ that
the same outcome would have occurred. This focus on the outcome undermines
the importance of decision-makers following fair procedures. In addition, at the
preliminary hearing stage, all the facts are unlikely to be available – this will make
the judge’s decision more difficult.

Activity 15.11
No feedback provided.

Activity 15.12
The government wanted to have greater transparency in how judicial reviews are funded.

Chapter 16

Activity 16.1
a. This will help them check that all the other participants in the parade match, so far
as possible, the description given at the time closest to the offence.

b. They must be told that the person they saw may or may not be in the parade and
that if they cannot make a positive identification, they should say so. They should
look twice at each member of the parade. Witnesses will be aware that there is a
suspect in the parade and it is natural that they might feel an obligation to identify
someone, even if they are not sure. If the person identified is not the suspect,
this could lead to a miscarriage of justice. Miscarriages of justice do also involve a
failure to convict the real offender.

Activity 16.2
a. A draft plan may be made available for public consultation with ‘stakeholders’
for six weeks (longer if there is a public holiday). Stakeholders who make written
comments in the formal consultation are subsequently given the opportunity to
be heard at the pre-hearing meeting with a discretion given to the inspector to
hear other people. Responses to the consultation are publicised on the council’s
website.

b. Students will form their own views. The danger of such consultations, particularly
where there is strong pressure from the UK government to expand housing
development, is that the council is seen as simply going through the motions with
the views of less articulate members of the public being ignored.

Chapter 17

Activity 17.1
a. The involvement of EU institutions is limited to what is necessary to achieve the
objectives of the treaties.

b. Article 5 of the Treaty on European Union (TEU).


Public law  Feedback to activities page 211

Activity 17.2
a. The requirement that his wage tax card disclose that he was not paying a religious
tax was not a violation of Article 9. It was not disproportionate, given the legitimate
aim of the state in ensuring that certain religions and religious societies could levy
the tax. The information disclosed was very limited – in effect it only stated that the
applicant did not belong to any of the religions/religious societies which could levy
the tax.

b. The air force personnel were subordinates in rank to the applicants and it was
proportionate for the applicants to be prevented from attempting to convert
them because of this relationship. There was no such power relationship with the
civilians.

Chapter 18

Activity 18.1
a. All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.

b. The right to form and join a trade union.

c. The right to protection against torture and cruel, degrading and inhuman
punishment.

Activity 18.2
a. Article 1 protects the rights of ‘legal persons’, which includes companies, to the
peaceful enjoyment of their possessions. A state can seize property in the ‘public
interest’ and subject to the general law and international law.

b. Under Article 2 a state must respect the religious and philosophical convictions of
parents in relation to the education of their children. Provided the education given
is satisfactory (thus protecting the right of the children to an education), the state
should permit the parents to exercise their beliefs in relation to home schooling.

Activity 18.3
a. The Danish government complained about the alleged torture of a Danish citizen
in a Turkish police station. It also raised a wider complaint about the issue of
torture more generally in the Turkish legal system.

b. It was settled in 2000 on the basis that Turkey pay Denmark 450,000 Danish kroner
and that the two countries participate in several projects to improve Turkish police
interrogation techniques.

Activity 18.4
a. The applicant was a prisoner in the United Kingdom who was subject to an
‘indeterminate sentence’. He claimed that his human rights under Article 5(4) had
been breached because of a delay by the Parole Board in hearing his request for
release.

b. There was an award of 750 Euros and 2,000 Euros for costs on the finding that there
had been a breach of Article 5(4). All other claims were dismissed.

Activity 18.5
a. A culture where public authorities are ‘habitually, automatically responsive to
human rights considerations’ in all aspects of their work.

b. Proportionality in balancing patients’ rights to carry out risky behaviour with the
need to protect them.
page 212 University of London

Activity 18.6
Because politicians went to the limits of what they saw as their lawful powers and
judges had to hold them back.

Activity 18.7
a. The significance of the issue and strength of feeling among politicians. In
addition, it would provide the opportunity for consultation with the devolved
administrations as to how it should apply outside England.

b. There is a definite sense of tension between deep disagreement with the principles
underlying the original decision in Hirst and the obligation to respect a binding
court case. He mentions the costs of prisoners making successful claims and clearly
wants the full legal advice to be published.

Activity 18.8
No feedback provided.

Activity 18.9
Students will form their own views based on their reading and interpretation of this
complex matter.

Activity 18.10
a. He is scornful of the media’s approach which conflates ridiculous (and
unsuccessful) claims with actual decisions of the courts relating to the Act.

b. The case law would then revert to the position in the 1990s. The main disadvantage
for the court would be an increased workload, with more UK cases having to be
dealt with in Strasbourg rather than being resolved by UK courts.

c. He thinks that its absence would encourage a trend among some judges to
consider striking down statutes which were not compliant with the common law,
rule of law and fundamental rights.

Activity 18.11
a. The three factors were:

uu difficulties over the implications for devolution

uu the fact that the majority of witnesses were strongly in favour of the current
arrangements

uu concern that some (though not all) of the proponents of a UK Bill of Rights
were also in favour of withdrawal from the ECHR.

b. They felt that they should be left to elected legislatures.

c. The declaration of incompatibility strikes a fair balance between the ultimate


sovereignty of Parliament and the duty of the courts to enforce and declare the law.

Activity 18.12
a. The Sewel Convention would apply, requiring the consent of the devolved
legislatures. If the Westminster Parliament ignored the Sewel Convention and
legislated anyway, the devolved legislatures would be able to introduce their own
legislation (e.g. ‘Scottish HRA’).

b. The Belfast Agreement (which has brought about a reasonably successful peace
process between the Unionist and Nationalist/Republican communities) explicitly
states that the UK government will incorporate the ECHR into Northern Ireland
law giving direct access to the UK courts for enforcement. In addition, there is a
separate Bill of Rights process in place for Northern Ireland arising from the Belfast
Agreement.
Public law  Feedback to activities page 213

c. Students will form their own views. The risks to the rest of the United Kingdom
which might arise from a breakdown in trust between the parties to the Belfast
Agreement are surely significant enough to make UK politicians think twice about
changing the status of human rights law in Northern Ireland.

Activity 18.13
a. More applications were being introduced than were being disposed of. This
damaged the effectiveness of the Convention and the court and undermined its
credibility and authority.

b. A key problem is that too many applicants have not been able to get appropriate
redress in their national courts. As a result, many applications are sent
unnecessarily to the European Court of Human Rights.

c. Four months.

Activity 18.14
a. Article 9 provides for the right to marry and ‘found a family’ in accordance with
national laws. The issue of same-sex marriage is therefore left to individual
member states.

b. It provides that the European Union ‘recognises and respects’ the right of elderly
people to live lives of dignity and independence and to participate in social and
cultural life.

c. Article 47 provides that legal aid should be available to those who lack sufficient
resources ‘in so far as such aid is necessary to ensure effective access to justice’. No
attempt is made to define the financial levels at which lacking ‘sufficient resources’
should apply.

Chapter 19

Activity 19.1
a. 1. What should the approach of the UK courts be where there is a clearly relevant
European Court of Human Rights decision?

2. What should the approach of the UK courts be where there is no clearly relevant
European Court of Human Rights decision?

b. ‘Follow’, ‘give effect to’ or ‘be bound by’.

c. Students will form their own views on whether the flexibility of Parliament’s
language in s.2(1) should be preferred to the very clear requirement in Article 46
that the High Contracting Parties ‘abide’ by decisions of the European Court of
Human Rights to which they are a party.

Activity 19.2
a. The Adoption (Northern Ireland) Order 1987 prevented an unmarried couple
from being considered as adoptors of a child. The applicants argued that this
was a breach of their Convention rights under Article 14, because it amounted to
discrimination on the grounds of their status as being unmarried.

b. Frette v France (2003) concerned a single person who was a homosexual who
wanted to adopt. The European Court of Human Rights held that it was within the
margin of appreciation for French law to discriminate against homosexuals in this
context.

c. He cited EB v France (2008) where the European Court of Human Rights had made a
different decision on similar facts, although it did not expressly overrule Frette. He
also used a report by Dr Ursula Kilkelly as additional justification.

d. He clearly sees it as a ‘floor’, which enables him to use creative legal arguments to
justify a strengthening of rights protection.
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Activity 19.3
a. Fitzpatrick v Sterling Housing Association (2001).

b. He considered it unnecessary, given that the majority had decided that s.3 did apply.

c. Laws should be construed ‘with such modifications, adaptations, qualifications


and exceptions as may be necessary to bring them into conformity with the
constitution’.

d. The Bill would give same-sex couples who had not entered into civil partnerships
the same rights as unmarried heterosexual couples. This reinforced his view that
Parliament should make crucial changes to social policy through legislation and
not the courts.

Activity 19.4
a. Only three.

b. Only one outstanding declaration of incompatibility where the government has


yet to remedy the incompatibility: that concerning the statutory disqualification of
serving prisoners from voting in parliamentary elections.

Activity 19.5
a. This practice has become very widespread and accepted.

b. It would be able to exercise its rights in claims against other public authorities and
use its rights as a defence against human rights claims.

Activity 19.6
a. It states that it is ‘subject only to such limitations as are prescribed by law and are
necessary in a democratic society … for the protection of the rights and freedoms
of others’.

b. Although one of the schools was full, the other two were available and the
applicant had the freedom to transfer to one of them, a decision she eventually
made.

c. He thought that the Court of Appeal’s focus on procedure, following the traditional
judicial review approach, was inadequate. The court was required to make a value
judgment and, in his opinion, the school had not acted disproportionately.

Chapter 20

Activity 20.1
Students will form their own views.

Activity 20.2
a. The Attorney General.

b. Because the special advocate could not discuss the secret evidence with the client
and had no opportunity to get evidence from the client to rebut it.

c. It was better than the alternative of not having the evidence considered by the
tribunal at all.

d. Approximately £110,000, although the government itself may not know the
complete total.

Activity 20.3
a. The House of Lords held by 8:1 that there was such an emergency.

b. The House of Lords held by 7:1 (one judge expressing no view) that s.23 had not met
the proportionality requirement.
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c. The House of Lords held by 7:1 (one judge expressing no view) that s.23 did
discriminate unjustifiably against foreign terrorist suspects compared to UK
nationals who were suspected terrorists.

Activity 20.4
a. The legislation conferred on the Home Secretary the power to detain foreigners
suspected of supporting foreign terrorist groups. He thought it objectionable that
a person could be detained on the basis of ‘heated remarks overheard in a pub’
(admittedly this would be an unusual setting for Islamic extremist plotting).

b. He concluded that they left a wide ‘margin of appreciation’ to individual states and,
by implication, to the House of Lords, to decide on whether or not an emergency
existed ‘threatening the life of the nation’.

c. He thought that Northern Irish terrorism had threatened ‘the fabric of organised
society’, because of sectarian divisions and the threat to the territorial integrity of
the United Kingdom. Islamic terrorism threatened life and property, but not the
United Kingdom’s ‘institutions of government’ or ‘existence as a civil community’.

d. He did not want to suggest that an objectionable measure could be made legal
simply by inflicting it on UK citizens as well.

e. The real threat to the life of the nation, in the sense of a people living in accordance
with its traditional laws and political values, comes not from terrorism but from
laws such as these. That is the true measure of what terrorism may achieve. It is for
Parliament to decide whether to give the terrorists such a victory.

Activity 20.5
a. When hearing an appeal under s.25 of the Anti-terrorism, Crime and Security
Act 2001 by a person certified and detained under ss.21 and 23 of that Act, may
the Special Immigration Appeals Commission (SIAC), a superior court of record
established by statute, receive evidence which has or may have been procured by
torture for the purposes of obtaining evidence, carried out by officials of a foreign
state without the complicity of the British authorities?

b. Article 3 states:

a. No State Party shall expel, return (‘refouler’) or extradite a person to another


State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.

b. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.

c. ‘Less progressive’ countries might cease to supply intelligence and evidence if


there was intrusive inquiry into their methods.

d. He did but his view that, in cases where there was doubt about whether or not the
evidence was obtained by torture, SIAC should refuse to accept the evidence was
rejected by the majority.

Activity 20.6
a. The first seven suspects who had received TPIMs were about to be released from
them after the two-year maximum period ended.

b. The police and security services would apply ‘tailored plans’ to the suspects.

Activity 20.7
a. The committee did not think that the increased risk of absconding was sufficient to
justify re-introducing the power to relocate suspects away from their families and
communities. Such a power would be too intrusive and damaging to family life.
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b. Apparently, it was necessary ‘to provide different steps of assurance’. The courts
had held it to be proportionate. The author wonders whether the GPS technology
is, in fact, trusted by the police and security service.

Activity 20.8
Their revival coincides with the return to Britain of jihadi fighters from Syria.
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Notes
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Notes
Public law Notes page 219

Notes
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Notes