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Public All Notes

Public Law I (BPP University)

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Sources of Law – Case Law (SOLC)

ORIGINS OF THE COMMON LAW
 What is law? “The system of rules which a particular country or community recognises as regulating the
actions of its members, and which it may enforce by the imposition of penalties”
 Many functions that the law plays:
o Maintains peace and safety in society
o Regulates the relationship between individuals and other legal entities
o Protects human rights and liberties
o Ensures the smooth running of economic and political activities
 Body of rules designed to promote the orderly conduct of society – the law must reflect the wishes or
tolerance of the broad majority of the population in order to be credible and enforceable
 Must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’
 The law that we have today is a by-product of a long history of legal development

Time Period Development

Pre – 1066 (Norman Conquest) Locally based systems and customs of Anglo-Saxon society
1066-1485 The formation of common law and its imposition over and above local systems and
customs
1485-1870s Development of equity; two separate legal systems co-exist
1870s – present  Joint jurisdiction for common law and equity
 Massive development in statute law
 Growth of governmental and administrative bodies
 Influence of European Union law (post- 1973)

The monarch as source of justice The three courts

 Today’s legal system has its origins in the King and Queen’s Courts  Three courts developed from the King’s Council:
 Following the Norman Conquest: gradually became possible to 1. The Court of Exchequer: dealt w royal finances
dispense a more centralised form of justice, with the King as the 2. Court of Common Pleas: ownership/possession of
central figure land
 In the Norman period, the Curia Regis (the King’s Council) played the 3. The Court of King’s Bench: serious criminal matters
role of an itinerant court, allowing the monarch to exercise his  These courts remained until the Judicature Act
personal power – ‘High Justice’ – in the most important of cases 1873
 This prototype central court existed alongside the local courts (in  To administer law outside London: royal justices
shires and hundreds) were dispatched with a royal commission to hold
 The King was aided in the administration of justice by a group of ‘assizes’ (or sittings) of the royal courts
semi-professional, skilled clerics  Initially the Assize Courts had jurisdiction only over
 These clerics eventually took on the function of deciding disputes criminal matters, but this was later extended to civil
themselves - became autonomous from the King and established matters
themselves at Westminster  Continued until the Courts Act 1971
 The establishment of a fixed King’s Court was required by the Magna  An appeal court also emerged in the form of the
Carta in 1215 Court of Exchequer Chamber – it was abolished in
 The King’s Council gradually developed and different ‘branches’ of 1875, when its jurisdiction was transferred to the
the court evolved to deal with different types of dispute new Court of Appeal

Different meanings of ‘common law’

 The King’s Court became essential to the resolution of disputes between citizens
 The law which the King’s judges applied was based upon the common customs of the country, hence the term common law
 Important to be aware of different meanings of the term ‘common law’ and to identify which meaning the term bears in the
particular context in which it is used. The term common law may be used:
o To historically distinguish the law of the King’s judges as opposed to the law as applied by local customary courts
o To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a system developed by the
separate Court of Chancery
o To distinguish case law – that is, law as developed by judges through the system of precedent – from statute law
o To identify the law as applied by common law countries (such as the Commonwealth jurisdictions to which the English
legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law
The Writ (as,
System
for instance, in most of mainland Europe)
o Commonwealth jurisidctions = Scotland, Republic of Ireland, the USA, Australia, New Zealand, Canada

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 The common law developed by the King’s Courts was a procedural system involving writs
 A writ: document with a royal seal that constituted a royal demand for the defendant to appear before Court
 Contained the foundation of the complaint, with a different form of writ being used for each form of action
 The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issued
 If a claimant could not find an existing writ to cover his case, he had no claim which the court would try
 The rules of procedure (pre-existing form of action) = stultified the growth of substantive law

Different forms of writs

Type of writ Description/Function Remedy

Writ of right First form of ‘real action’ – developed from dispute ‘in battle’ to form of jury trial (in Recovery of land
Petty Assizes)
“Personal Actions” – all writs below
Debt Recovery of fixed sum Damages
Detinue Return of chattel Damages
Covenant Breach of promise Damages
Account Accounting for a payment Damages
Trespass Against persons, goods or land – jury trial Damages
Case Remedy where no current action – later influential in development of tort law Damages

Problems with this emerging common law: too procedural

 The writ system exemplifies how the common law became hidebound by complex and restrictive procedures
 For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed
 Process, rather than principles, rights and duties, was paramount, therefore
 Reason was common law developed largely as a means by which a dispute could be resolved
 The courts came into existence as part of the development of centralised royal power, with the aim to conclude
disputes rather than necessarily to resolve them in a just way – did not develop from a concept of ‘rights’ and
‘wrongs’
 Another problem: in personal actions, it offered only the remedy for damages
 E.g. when one breached a covenant (a legally binding promise), the aggrieved party would not be able to compel the
breaching party to fulfil the promise
 Such issues combined together to encourage the emergence of the law of equity

CASE LAW
 ‘Case law’ and ‘common law’ are used interchangeably – refers to body of case law decided by judges
 Common law system = governed by rules of precedent
 This means = the decisions of judges of high courts/tribunals are 'binding' on those lower down
 Judges: Decide cases but in UK do not, of their own accord, start cases or investigate legal issues
 In order to decide a case, a judge will:
o Consider the evidence brought by the parties and decide which evidence they find credible
o Consider the how case law/statute should be applied in the given case and give judgment
o Apply the law to the facts of the case and reach a decision on which party should succeed
o Decide what remedy the successful party is entitled to, e.g. damages

Retrospective nature of precedent Prospective nature of statute law

 Do judges make law? Traditional theory = they do not do so  Statutes (Acts of Parliament) set out the law for the future and
but merely declare what the law has always been rarely have retrospective effect
 Linked to this – idea of the retrospective nature of precedent
 The view is that judicial decisions are based on statements of
legal principle which have always been in existence, but which
are not fully expressed or delivered until an appropriate case
is brought before a court

‘Stare decisis’ (‘stand by what has been decided’)

 Distinct characteristic of the English common law – employs the doctrine of stare decisis (binding precedent)

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 If a principle of law is laid down, future cases with same material facts must be decided in the same way
 Contrast to civil legal systems, where courts concentrate on interpreting detailed written codes of the law
 Previous decisions, or precedents in civil systems are simply examples of the application of codes
 It is necessary for it to be persuaded that:
o The earlier case was decided in a court which binds it, and
o The relevant part of the earlier case is binding, rather than merely ‘persuasive’

What part of a judgement is binding?

 As soon as a ‘point of law’ has been decided by any superior court, it establishes a precedent
 A precedent may be binding (must be followed) or persuasive (may be followed)
 Not every aspect of a judgement is binding
 A judgement consists of: summary of facts, statements of law (ratio decidendi, obiter dicta), decision on remedy

Ratio decidendi (binding) Obiter dictum (not binding)

 ‘Ratio decidendi’ means “reasons for the decision”  A judge’s expression of opinion uttered in
 It is the principle/rule established in a case but as applied to the court, but not essential to the decision and not
material facts of the case. legally binding
 If the material facts were different, the court’s decision may be  Consist of:
different o Statements of law not necessary to the
 The ratio of a judgement is the part which is binding on other decision, e.g. on hypothetical facts or
courts on facts which are not material
 Determining a ratio = an art rather than a science  Re Grosvenor Hotel, London (No. 2) (1964): “A
 Narrow proposition: a ratio would apply only to very specific facts battery of howitzers off the target is more
 Wide proposition: it could be treated as establishing an entirely impressive than a pop-gun on it. Powerful ober
new, wider principle dicta by the House of Lords may sometimes be
regarded as so persuasive as to be practically
binding”

Departing from own precedent

 Until 1966 this was not formally recognised as being possible
 In that year, the former Appellate Committee of the House of Lords – the “law lords” – recognised that this may be
necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234.
 In this Lord Gardiner L.C. stated that the law lords “recognise[d] that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law.”
 In modifying the old practice, he warned that they would “bear in mind the danger of disturbing retrospectively the
basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law.”
 Austin v Southwark LBC (2010): Lord Hope confirmed that the (new) Supreme Court would maintain the same guarded
but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court.

Court of Appeal – Departing from own precedent

 A similar approach is taken in the Court of Appeal (“CA”). The Court is generally intent on maintaining its own
precedents but in the case of Young v Bristol Aeroplane Co. Ltd (1944), Lord Greene MR outlined three exceptions:
o If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow
o If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or House of
Lords, it need not be followed
o If the CA’s previous decision was made per incuriam.
 Note that per incuriam does not simply mean that the earlier CA made an error. It only applies when the previous court
was not aware of a relevant authority (in case or statute) which would have been binding on the court’ and that
ignorance led to faulty reasoning by the court.

Rules of Precedent
Supreme Court Binding on all inferior courts and itself (subject to 1966 Practice Statement)

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Court of Appeal All inferior courts and itself (subject to Young v BA exceptions)
High Court All inferior courts, and itself (except for decisions take by a single Judge)
Upper Tribunal The First Tier Tribunal, inferior courts, and itself
First Tier Tribunal Not binding but may be persuasive
Family Court Not binding
Crown Court Not binding
County Court Not binding
Magistrate Court Not binding

EQUITY
 As a consequence of some of the problems created by the common law (outlined in element 1), aggrieved
litigants, who felt that justice was not served in the King's Courts, began to petition the King to do justice in
particular instances.
 The King, part of whose coronation oath was 'to do equal and right justice and discretion in mercy and truth',
was known as the 'fount of all justice'. These petitions were passed on to the Chancellor, a cleric seen to be
the 'keeper of the King’s conscience' for a decision.
 By the end of the 13th century, such petitions were dealt with through a more formal procedure by the Court
of Chancery, presided over by the Lord Chancellor
 Equity can be defined as the body of principles and rules administered by the Court of Chancery before the
Judicature Acts 1873-1875.
 Even though the court system has changed since the 19 th century, it is significant that the underlying rules and
principles of equity are still applicable today.

Discretionary nature of equity Conflicts between equity and common law

 The key feature and benefit of this emerging set of  Considerable friction developed at times. This was most
principles was its greater flexibility. intense at the end of the 16th early 17th century when it
 Initially, Lord Chancellors decided claims from their own became one of the main sources of tension between the
conscience without considering earlier decisions. Over Stuart monarchy and Parliament.
time, though, they tended to come from a legal rather  The conflict was referred to the monarch, James I, in the
than clerical background, and so were accustomed to Earl of Oxford’s Case (1615)
adhering to the doctrine of precedent that was used by  James decided that, in cases of conflict, equity should
their common law counterparts. prevail over common law.
 Consequently, equitable precedents grew, and equity  This was enshrined in s.25 of the Judicature Act 1873-
developed/maintained its own separate system of rules 1875/ now in s49(1) of the Supreme Court Act 1981.
 Supplements not usurps the common law – represents  The judgment also stressed equity was to supplement
‘a gloss on the common law’ (F.W Maitland) not supplant common law (equity follows the law)
 Equitable remedies remain discretionary in modern law.

Two systems?
th
 Until the latter half of 19 century, a single court, the Court of Chancery, applied equity exclusively.
 Two systems of law created problems for litigants (double action required for both equitable remedy and damages
required – onerous and time consuming)
 Judicature Acts 1873-75: introduced fundamental reforms
 This series of Acts abolished the old division between the three common law courts + the Court of Chancery
 Created a single High Court and Court of Appeal which could apply the rules/remedies of both common law and equity.

Common law (legal) rights v Equitable (or beneficial) rights

 Equitable remedies = discretionary in nature/ Common law damages = available as right
 Equitable remedies are therefore awarded only if damages would not be an adequate remedy
 Equitable remedies are:
o Specific performance o Recission
o Injunction. o Rectification
o Declaration THE CRIMINAL COURTS
 Criminal law = part of public law (concerns the relationship between the individual and the State)
 Criminal cases are brought by the prosecution, representing the State, against the defendant (accused)

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 Immediate objective: to punish people who have committed offences against society
 Wider sense: to establish standards of behaviour for a peaceful and productive society and to provide a
deterrent against those who might breach these
 The prosecution is generally brought in the name of the Crown, e.g. R v Brown (1970) (R = Regina)
 Correct way to express case name – ‘the Crown against Brown’ or merely ‘Brown’
 Parties = prosecution (the Crown) and the defendant.
 Crown Prosecution Service (CPS: body that initiates criminal proceedings in England/Wales
 This is independent from the police and any other investigative authorities.

Standard and burden of proof = level of certainty a party must provide to succeed at trial
 One of the key differences between criminal and civil law is the standard of proof.
 Criminal law = "beyond reasonable doubt" / Civil law = “balance of probabilities”

Magistrates’ Court (Lowest Court)

 Lowest court in the hierarchy of criminal courts (almost all cases start there and around 95% will end there
 Tries all summary offences (minor offences) + some triable either way offences (tried at either Magistrate/Crown Court)
 The court has some civil jurisdiction: power to impose fine up to £5,000/6 month prison sentence for single offence
 Where Magistrates do not dispose of a case because they don’t have power to impose higher sentence or a Crown Court
trial is thought more appropriate, they will commit the defendant to the CC for sentence or trial
 This court does not create precedent – bound by Administrative Court/Court of Appeal/Supreme Court

Appeals from the Magistrates' Court

 A convicted defendant can appeal to the Crown Court against their conviction, or their sentence, or both.
 If the defendant appeals against conviction, their trial will be heard 'de novo’ (afresh)
 The prosecution has no such corresponding right of appeal – considered too lenient
 The risk the defendant takes: sentencing powers of the Crown Court are greater/may be increased
 If either the prosecution or the defence consider that the Magistrates' decision was legally flawed (as opposed to flawed
in its assessment of evidence, or on sentence), it may appeal to the Administrative Court, a specialist court within the
Queen’s Bench Division of the High Court. This is known as an appeal 'by way of case stated'.

Crown Court
 Senior court of first instance in the criminal law – hears “indictable only” offences
 Process – Magistrates hear case first – generally decide whether to grant bail, consider other procedural issues such as
reporting restrictions, and then pass case on to the Crown Court for trial
 CC will also hear ‘either way’ offences transferred from the Magistrates’
 Trials in CC involve juries in almost all cases
 The court is administered by an executive agency of the Ministry of Justice, HM Courts and Tribunal Service

Appeals from the Crown’s Court

 A defendant convicted and sentenced in the Crown Court may, with the permission of the Court of Appeal (Criminal
Division), appeal: their conviction, their sentence (or both)
 The Criminal Justice Act 2003: enables the prosecution (with the consent of the Director of Public Prosecutions) to apply
to the Court of Appeal for an order quashing the acquittal of anyone found not guilty of a 'serious offence'.
 The Attorney General may appeal, in some limited circumstances, against an 'unduly lenient' sentence imposed by the
Crown Court.

Grounds for appeal against conviction Grounds for appeal against sentence
 NO AUTOMATIC RIGHT of appeal from the Crown Court to Grounds for appeal against sentence
the Court of Appeal  With permission, defendant may appeal against the
 The appellant has to apply, on paper, for permission to sentence imposed by the Crown Court (more common)

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appeal (decided by one judge, can be re-appealed) 

Criminal tribunals follow the 'sentencing guidelines' for
 The Court of Appeal will quash a criminal conviction of the offences produced by the Sentencing Council
Crown Court if satisfied that the conviction is "unsafe". The  The key grounds for appealing against sentence are:
Court will hear oral argument from counsel for both sides, 1. The sentence is not justified by law (i.e. the judge made an
but evidence will not be heard again. error of law when passing it).
 Common arguments heard in the Court of Appeal relate to 2. The sentence was based on an incorrect version of the
new evidence, errors that occurred during the trial process evidence.
or misdirection’s of law by the trial judge (conviction 3. The judge took irrelevant matters into account when
squashed = sentence squashed) sentencing.
4. The judge misapplied or failed to give sufficient weight to
the sentencing guidelines.
Appeals from the Court of Appeal (Criminal Division) to the Supreme Court
 In principle, either defendant/prosecution may apply for permission to appeal to the Supreme Court
 However, the Supreme Court will only hear an appeal which is certified (either by the Court of Appeal or by the Supreme Court) as
being on a "point of law of general public importance" (test is rarely met)
 R v R (1991): the public importance test was met, the House of Lords confirmed that no 'marital defence' to the crime of rape
existed in English law.

The Judicial Committee of the Privy Council

 The Judicial Committee of the Privy Council is the final appeal court for UK overseas territories and Crown dependencies.
It is also the final appeal court for those Commonwealth countries which have retained the appeal to ‘Her Majesty in
Council’ or, in the case of those which are republics, have retained appeal to the Judicial Committee.
 The purpose of the Judicial Committee is to advise the Crown, so in theory it never decides a case but instead 'humbly
advises Her Majesty'. In practice, Monarch never refuses the advice of the Judicial Committee.
 The Judicial Committee hears both civil and criminal matters
 Consists of senior members of the judiciary, usually from the Supreme Court (previously from the House of Lords) and
senior members of the judiciary from Commonwealth jurisdictions
 The decisions of the Privy Council are not binding on the English courts, but its opinions can be highly persuasive
(sometimes viewed as authoritative as Council is made up of some Justices that sit at Supreme Court)

The Criminal Cases Review Commission (not an appeal forum – a review forum)
 CCRC = a statutory body responsible for reviewing alleged miscarriages of justice in the UK
 It has power to send a case back to the Court of Appeal for review, if it considers there is a "real possibility" that the
Court of Appeal will overturn the conviction or sentence.
 If the decision to be reviewed was made in the Magistrates' or Youth Court, the CCRC can send it back to the Crown
Court for review. This review takes the form of a re-hearing, in which all the evidence is heard again
 In order to refer a case for appeal, the Commission usually has to identify new evidence or a new legal argument that
makes the case look significantly different. This evidence or argument must not have been considered at the time of the
trial, at the initial appeal, or in an earlier application to the Commission.
 (There is an "exceptional circumstances" caveat that allows the Commission to refer cases with no new evidence or
argument, but such instances are extremely rare.)

THE CIVIL COURTS

 Civil law regulates the legal relationship between private parties (individuals/legal persons, e.g. companies)
 Legal relationship may arise from a contract or a 'duty of care' exists or from many other 'causes of action'.
 The government does not ‘prosecute' civil cases. However, it can be involved either as claimant or a defendant
in a civil case, in its private law capacity
 Public Law on this course is governed by the Civil Procedure Rules (CPR) and largely adjudicated upon in the
civil courts
 Parties = claimant and defendant (plaintiff used until the ‘Woolf reforms’ in late 1990s)
 Court’s decision = its judgment (usually outcome = damages for the successful party, other remedies also)
 Civil and criminal liability: possible for defendant to be subject to both arising from same incident

County Court
 Most claims begin in the County Court but higher value claims (above £100,000) begin in the High Court

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 Some civil cases can be issued directly in the High Court but to do so a claimant has to justify this based on either the
value or the complexity of the issues in the case
 Three ‘tracks’ for cases in the County Court: Small claims track, Fast Track, Multi-Track
 Each case is allocated to a track, depending on its financial value and complexity
 Small claims = valued at less than £10,000 (or £1,000 for personal injury claims)

Judges in the County Court

 There are three levels of Judge in the County Court:
1. Deputy District Judges (DDJs) = most junior. They are often 'fee paid' (a daily rate) rather than a salary.
2. District Judges (DJs) = next level up. Most judges in the County Court = District Judges. They hear some final
hearings, but the majority of their work is procedural (they are permanent employees with a salary)
3. Circuit Judges (CJs) = most senior. There are also Circuit Judges in the Crown Court. The more complex cases in
the County Court will be heard by a Circuit Judge. They will also hear appeals from decisions by DJs and DDJs.

Appeals from the County Court

 An appeal against a decision of a DDJ/DJ will remain in County Court to be decided by a CJ
 Decision of a CJ can be appealed to the High Court, and subsequently to the Court of Appeal with permission
 In principle, decision of the CoA can be appealed by the Supreme Court - only if it deals with a ‘point of law of general
public importance’
 County Court does not create precedent – bound by higher courts
 (D)DJ  CJ  High Court  Court of Appeal (Civil Division)  Supreme Court

THE SENIOR COURTS

 The senior courts of England and Wales are:
o The Supreme Court (before 1 October 2009, the House of Lords)
o The Court of Appeal
o The High Court
o The Crown Court
 Structure and jurisdiction of the senior courts are set out in the Senior Courts Act 1981

The High Court

 The High Court is part of the Supreme Court of Judicature created by the Judicature Act 1873. (This followed the
merging of the once separate common law and equity court systems).
 Judges of the High Court sit at the Royal Courts of Justice in London, and at number of regional centres outside London
called District Registries.
 The Administration of Justice Act 1970 re-structured the Court into three divisions: Queen’s Bench Division (QBD),
Chancery Division, Family Division

Judges in the High Court

 Nominally appointed by the Queen on the recommendation of the Lord Chancellor, after a fair and open competition
administered by the Judicial Appointments Commission.
 Candidates for appointment to the High Court must satisfy the judicial appointment eligibility condition on a seven-year
basis or be Circuit Judges who have held office for at least two years.
 Also procedural judges called Masters. At first instance they deal with all aspects of legal proceedings, from its issue until
it is ready for trial by a trial judge – usually a High Court judge.
 After the trial, the Master resumes responsibility for completion of the case.
 The Masters = the Senior Master, nine Queen’s Bench Division masters; the Chief Master and five Chancery masters.
 All the divisions of the High Court also have district registries or regional centres where High Court cases can be heard

Queen’s Bench Division (Division of the High Court)

 QBD is predominantly a civil court but also has some criminal jurisdiction (through the Administrative Court).
 Judges who hear civil cases in the QBD mainly deal with ‘common law’ business (contracts/tort)
 Contract cases include failure to pay for goods and services and other breaches of contract, while QBD tort cases include

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wrongs against person/property/negligence etc.

 QBD judges also preside over more specialist matters, such as applications for judicial review
 High Court Judges also hear criminal cases in the Crown Court, including in its various regional centres (alongside Circuit
judges and Recorders).

The Administrative Court (part of the QBD)

 Responsible for the administrative law jurisdiction of England and Wales
 Its varied work is directed at the lawfulness of actions of central/local government, regulatory/disciplinary bodies,
inferior courts/tribunals, and other public bodies
 Has both civil and criminal jurisdiction (notably appeals ‘by way of case stated’ from magistrates)
 Not all judicial review proceedings are dealt with by the Administrative Court
 The Upper Tribunal (Immigration and Asylum Chamber) (UTIAC), has judicial review powers in relation to most
immigration decisions and since November 2013 deals with the vast majority of such cases
 Some of the cases in the Administrative Court will be heard by a Divisional Court (court consisting of two/more judges)
 These will usually be in criminal cases including a number of the more difficult extradition cases
 Most of the 71 High Court judges assigned to the Queen’s Bench Division regularly sit in the Administrative Court, as do
some judges in the Chancery and Family Division.

The Chancery Division

 The Chancery Division is now the largest unit for handling business and mainly property cases in the country
 Head of Chancery Division = Chancellor of the High Court (currently 18 High Court judges attached to the Division)
 In addition, in London, there are:
o Six judges who are referred to as Masters (one of whom is the Chief Master)
o Six Insolvency and Companies Court Judges (one of whom is the Chief Insolvency and Companies Court Judge).
 The CD incorporates the Insolvency/Companies Court, the Patents Court/Intellectual Property Enterprise Court (IPEC).
 The remainder of the work of the Division is referred to as 'general Chancery' work. This is the area of practice where
the law of equity is most significant.

The ‘Business and Property Courts’

 These Courts cover the work of the specialist courts within the Rolls Building in London and at the civil and family courts
in Manchester, Birmingham, Leeds, Cardiff and Bristol. They bring together the work of the Chancery Division and
specialist courts of the Queen’s Bench Divisions of the High Court.
 The business and property courts include:
o The Commercial Court o The Technology and Construction Court
o The Business List o The Financial List (e.g. banking and financial markets)
o The Admiralty Court o The Insolvency List
o The Commercial Circuit Court

The Family Division

 Judges who sit in the High Court can hear all cases relating to children and have an exclusive jurisdiction in wardship – a
type of court order which gives custody of a minor (under 18) child to the court, with day-to-day care carried out by an
individual(s) or local authority.
 Judges in the High Court also hear appeals from the Family Court, which is the main court of first instance for both public
and private family matters (at an equivalent level to the county courts).
 Public family law = safety/protection of children/related issues
 Private family law = divorce and ancillary financial arrangements/related issues

The Court of Appeal

 Based at the Royal Courts of Justice in London (occasional sittings elsewhere in Eng/Wales)
 Consists of Civil Division and a Criminal Division
 In some cases, a further appeal lies, with permission, to the Supreme Court (very very rare)
 CoA judges = senior judges with lengthy judicial experience. Appointment is by Queen on recommendation of a

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selection panel convened by the Judicial Appointments Commission

 The judges of the Court of Appeal are the:
o Heads of Division (the Lord Chief Justice of England and Wales, the Master of the Rolls, the President of the
Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court) and
o the Lords Justices of Appeal.
Civil Division Criminal Division
 Civil Division hears appeals from High Court, County  Hears appeals from the Crown Court
Courts and certain tribunals (employment/immigration)  Headed by Lord Chief Justice (Head of Judiciary and
 Headed by Master of the Rolls and cases heard by 3 President of Courts of England/Wales)
judges (any combo of Heads of Division/J. of Appeal)  N.B. Lord Chief Justice assumed role of Head of the
Judiciary following the Constitutional Reform Act 2005,
changed role of Lord Chancellor from a mixed
judicial/political to wholly political one

The Supreme Court

 The apex of the legal system of the United Kingdom. It hears appeals from courts in England/Wales/Scotland and
Northern Ireland on the most significant cases.
 It was established by the Constitutional Reform Act 2005 (but did not start till 2009)
 There are twelve Supreme Court judges, known as 'Justices'. The full Court sits when the most important cases, usually
those of constitutional significance, are heard. The senior judge is known as the President.
 Permission to appeal to the Supreme Court is required and will only be granted if the issue raised is of 'general public
importance'. Recent issues include:
o The availability of damages for the payment of commercial surrogacy fees
o The lawfulness of prorogation of Parliament by the Prime Minister
o Whether the applicable standard of proof in inquest proceedings in the case of suicide is the civil or the criminal
standard

Civil Appeals

 It should be noted that, in cases of

high importance, which are very
likely in any event to reach the
Supreme Court, it is possible for the
case to by-pass the Court of Appeal.
This clearly saves time and legal
costs.

 The procedure is known as a

‘leapfrog appeal’ and means that the
judgment of the High Court is
appealed directly to the Supreme
Court

 Provided for by sections 12-16 the

Administration of Justice Act 1969

Sources of Law – Statute (SOLS)

PRIMARY AND SECONDARY LEGISLATION
 Legislation = second major source of law in England and Wales (made with approval of Parliament)

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Primary Legislation Secondary Legislation

 'Acts of Parliament’, which are put  Also known as 'subordinate' legislation. Secondary legislation is law
before Parliament as Bills (draft created by ministers (or other bodies) under powers given to them
legislation), debated, and passed (almost by a ‘parent’ Act of Parliament (fills in details of primary legislation)
always) by both Houses of Parliament.  Includes regulations made by statutory instruments, Orders in
 Acts of Parliament receive 'royal assent' Council, and by-laws
– formal approval by the Monarch –  Delegated legislation = has equal statutory force to that of primary
before becoming law. legislation
 Starts life as a “Bill” (draft piece of  BUT: courts do not have power to invalidate an Act of Parliament,
legislation) they can examine whether delegated legislation is made within the
 A Bill can be introduced in either House powers of the parent act and ‘quash it’ if it is not

Private (Personal) Acts of Parliament

 Acts which relate to particular places or people
 These acts usually stem from a proposal by a large organisation such as a local authority/large private company which
wishes to acquire certain power, e.g. local authority might be seeking a power to build a bridge
 Promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal

Public (General) Acts of Parliament

 Acts which relate to matters of general public concern
 Debated in both Houses of Parliament and any outside body wishing its views to be considered can only do so by
persuading an MP/peer to put forward such views (this is known as lobbying)
 Public Acts make up largest part of Parliamentary legislative output
 Public Bills, intended to become Public Acts, can be further divided into Government and Private Member Bills:

Government Bill Private Members’ Bill

 Represents policy of the government of the day  Promoted by a particular Member of Parliament
 Drafted by official parliamentary draftsman (normally through the Ballot system)
 Based on ministerial proposals issued in the form of a  Do not start life as official government policy but can
Green Paper (for discussion) and White Paper sometimes be supported by government
(official government policy)  They are given less parliamentary time and so often not
successfully passed

Primary Legislative Process in each House

First Reading A formality; the Bill’s title is read out, and a date set for a second reading
Second Reading The Bill is debated by MPs and may be amended
Committee stage The detail of the Bill is scrutinised by a legislative committee. It may be amended
Report stage Proposed amendments are debated, and there is a vote on the committee’s report
Third Reading Final debate and vote on the Bill. If passed, it goes on to the other House (The House of Lords’
powers are ultimately restricted to the review/proposed amendment/delay of legislation; an
outright veto is not possible)
Royal Assent and commencement
 Final stage in a Bill becoming an Act is the Royal Assent (no legal rule requiring monarch to assent, but convention)
 Royal Assent = a formality – highlighted by the Royal Assent Act 1967 (provides for how the assent can be signified)
 An Act of Parliament takes effect when it receives Royal Assent, unless there is a contrary provision in the statute.
 Legislation does not always come into force on the same day it was enacted. It is actually more usual for an Act to
include a commencement section detailing when the Act is to come into force.
 Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is
concerned to issue a statutory instrument bringing the Act into force.
Scrutiny of Secondary Legislation
 Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation.
 Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.
 Parliament’s role in considering an SI varies depending on what is stated in its parent Act
 The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the
powers given by the parent Act.

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RULES OF STATUTORY INTERPRETATION

 The process of determining what Parliament intended when it enacted a piece of legislation
 Primarily a task for judges – they are the ultimate interpreters of the will of Parliament
 Constitutional responsibility for interpreting statutes does not rest jointly with Parliament and the Judiciary
 Lawyers need to be familiar with principles of interpretation so can advise clients how the court will likely
interpret relevant words in a statute
 Traditionally, there were seen to be certain “rules” of statutory interpretation:

The Literal Rule

 Words in the statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic
aids as a dictionary
 Requires in-depth consideration of the words and phrases of the statute (linguistic presumptions will be an important
aid for this method)

The Golden Rule

 Developed to avoid absurd outcome sometimes produced by the over-literal application of the Literal R
 'The golden rule is … that we are to take the whole of the statute together, and construe it all together, giving the
words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or
inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary
signification
 Adler v George (1964): The defendant was charged with an offence under section 3 of the Official Secrets Act 1920 of
obstructing a member of the armed forces 'in the vicinity of any prohibited place’ when he was IN a prohibited space
(wording considered absurd)

The Mischief Rule

 Examines the original purpose of the particular provision under consideration
 Heydon’s Case (1584): it was stated that courts must consider four questions when applying the mischief rule:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy for the mischief had Parliament intended to provide?
4. What was the true reason for Parliament adopting that remedy?
 Today, the mischief rule is defunct, and this method of statutory interpretation has now been completely subsumed
into the purposive approach

The purposive approach

 Most recent rule and accurately reflects how modern judges approach their interpretive task
 R v Secretary of State for Health ex parte Quintavalle (2003): “the degree of liberality permitted is influenced by the
context” (Lord Steyn)
 Courts have been given additional powers of interpretation under the Human Rights Act 1998, which allow them,
where appropriate, to interpret legislation in a (purposive) way to seek compatibility with the European Convention
of Human Rights (partially been influenced by the culture of European jurisprudence and its teleological approach)
 "Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning
of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal,
mental process […]This unified, 'contextual' approach involves not so much a choice between alternative "rules" as a
progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the
statute … and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result."
(Daniel Greenberg, Craies on Legilsation (2016))

LINGUISTIC PRESUMPTIONS
 In addition to these general ‘rules’ or approaches to statutory interpretation, the courts will also apply certain
linguistic presumptions/maxims to assist them in interpretating the meaning/application of provisions of legislation
 The three most often quoted of these maxims are:

Expressio Unius est Exclusio Alterius (expression of one excludes the other)

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 This presumption may be used where there is a list of items with no general words that follow
 The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated
 Tempest v Kilner (1846): the Statute of Frauds 1677 required that sale of 'goods, wares and merchandise' over £10 in
value must be evidenced in writing. The question for the court was whether stocks and shares came within this
definition. As only those three types of transaction were mentioned, the court held that only those three
transactions were covered; shares were not.

Ejusdem generis (of the same kind)

 Employed when a statute includes a generic but non-exhaustive list of items
 The presumption is that, where general words follow a list of specific words, the general words are interpreted so as
to restrict them to the same kind of objects as the specific words
 Powell v Kempton Park Racecourse (1899): a person was betting in Tattersall's Ring, and the Betting Act 1853, in
which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.
 The House of Lords held that the specific words, 'house, office, room' were all indoor spaces; and so, the general
words 'other place' would be taken to refer only to indoor areas. As Tattersall's Ring was an open area at Kempton
Park Racecourse, the defendant did not commit an offence under the Act.

Noscitur a Sociis (it is known from its associates)

 Words of a statute are understood in the context of the statute itself (could be any part of the statute)
 This technique is closely associated with Ejusdem generis but has wider potential application
 Inland Revenue Commissioners v Frere (1965): the House of Lords considered the phrase 'interest, annuities and
other annual payments', contained in s. 169 of the Income Tax Act 1952.
 The word 'other' at the end of the phrase implied that the first two words (interest and annuities) were also annual.
Therefore, the word 'interest' was held to mean 'annual interest’. Noscitur a sociis was used here because it allowed
the court to interpret the nature of one of the categories of things included in the legislation.

INTRODUCTION TO HUMAN RIGHTS

 Human rights: human beings have rights by virtue of being human (no additional test needs to be met)
 Natural Law theory – most significant legal product of the European Enlightenment
 It sought to explain the bases of legal obligations from an innate canon of legal values that was seen to be
superior to any national legal authority – lead thinkers included John Locke, Thomas Paine, Rousseau
 Two more radical developments in the emergence of human rights law: the revolutions in America (1776) and
France (from 1789)
 In contrast, the U.S. Constitution (1787) drew on the recognition of the importance of individual human rights
contained in the earlier Declaration of Independence (1776). The first ten amendments to the Constitution –
the Bill of Rights – represented the first judicially enforceable rights document. Over the years, the US courts
have developed judicial principles on the resolution of human rights disputes, and for all the imperfections
and lack of equality evident in American history, these have had a significant effect as both inspiration and
example throughout the rest of the world.
 The ultimate failure of the League of Nations, established as part of the post First World War peace
settlement, meant that attempts to create an internationalist body designed to avoid future conflict and to
promote a greater degree of universal rights proved illusory in the first half of the last century
 It was not until after the catastrophic human rights abuses in the WWII that the first comprehensive attempt
to define a worldwide statement of rights and associated enforcement mechanisms was initiated.
 In 1945, the United Nations (UN) was founded by the Allies to provide a mechanism for the resolution of
international disputes, through both judicial and non-judicial mechanisms
 Many states at the time argued that a worldwide, legally binding Bill of Rights should be included, to be
ratified by each state as they acceded to the UN - never occurred, due to difficulty of agreement on content
 Instead, the Universal Declaration of Human Rights (UDHR) was commissioned in 1946 and completed two
years later. While receiving unanimous support, the UDHR is only a resolution of the General Assembly of the
UN and as such is not 'law'. However, it has been argued that its universal acceptance indicates that the
principles underlying the UDHR have become binding as customary international law.

The Council of Europe

 N.B. the Council of Europe + ECHR itself have nothing directly to do with the European Union or EU Law.

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 The Council of Europe is a completely distinct organisation from the 27-nation European Union, though no
country has ever joined the European Union without first belonging to the Council of Europe.
 Today the Council of Europe, and therefore the Convention, has 47 Members and counts over 850 million
people within direct jurisdiction. There has been an enormous growth in membership since the fall of
communism in Europe from 1989 onwards. The only European country which is not a member is Belarus.
 In addition to its original role in overseeing the ECHR, since 1989 the Council has also been acting as a political
anchor and human rights watchdog for Europe's post-communist democracies.

Categories of rights under the ECHR

While there is no explicit hierarchy of rights under the ECHR, they can be divided into the following categories

Absolute rights Rights which cannot be lawfully interfered with in any way by the state:
 Art 3: freedom from torture and inhuman or degrading treatment
 Art 4: prohibition of slavery and forced labour
 Art 7: prohibition on retrospective criminal offences

Limited rights Rights which can in some circumstances be lawfully interfered with:
 Art 2: right to life
 Art 5: right to liberty and security
 Art 6: right to a fair trial

Qualified rights Rights which can be lawfully interfered with provided certain legal tests are met:
 Art 8: right to respect for private and family life, home and correspondence
 Art 10: right to freedom of expression and information
 Art 11: right to freedom of association and assembly

 Generally, for the state to interfere legitimately with a qualified Convention right, it must be
shown that all three of the following circumstances apply.
o The interference was prescribed by, or in accordance with, the law
o The interference was in pursuit of a legitimate aim.
o The interference was necessary in a democratic society. (This effectively means that the
interference must be a proportionate one.)

The UK as a dualist state

 The majority of European legal systems are monist = they treat international law as binding on their domestic legal
systems, without any further enactment at the domestic level. Where the two forms of law clash, the monist system
treats the international law rule as superior and overrides the domestic rule.
 In contrast, the UK legal system is dualist, treating the 'two' legal orders as wholly separate. The UK state may be
bound by international law, and the UK government may be bound too in terms of its dealings with other states and
governments, but the court system of the UK is not bound in the same way.
 This means that international law can only be applicable in the UK in two distinct circumstances:
o Where the UK itself is a party to proceedings before an international court, to which jurisdiction it has
agreed to submit (e.g., the European Court of Human Rights, the International Criminal Court)
o Where the UK has incorporated international legal rules into its domestic legal system through an enabling
Act of Parliament.

The Human Rights Act 1998

 As a consequence of the UK’s dualist legal system, it was necessary for an Act of Parliament to be passed in order to
incorporate the ECHR into UK domestic law.
 Before the Human Rights Act (‘HRA’) was passed, there was a degree of protection for rights under the common law,
as you will see when studying constitutional law. As we have also seen, UK citizens could lodge complaints at the
ECtHR in Strasbourg from 1966. However, the HRA was passed to ensure that the rights in the ECHR were directly
enforceable in the domestic courts. The HRA is therefore the conduit and enforcement mechanism for the ECHR as
the principal source of rights protection in the UK.
 It is important at this stage to appreciate that in domestic UK law, HRA ‘claims’ are made not against the UK as a state

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but against the relevant ‘public authority’.

 Under s6(1) HRA such bodies have a duty to act compatibly with ECHR rights. These bodies include not just ‘core’
public authorities – such as central and local government – but also those that carry out functions of a public nature
in aspects of their work. They also include courts and tribunals (Parliament is excluded from obligation however)
Enforcement of rights
 The following (paraphrased) sections of the HRA gave significant new powers to the courts. These can enable
claimants, who are "victims" of an allegedly unlawful breach of their ECHR rights by a public authority, to enforce
those rights in UK domestic courts:
s3(1) The courts should, as far as it is possible to do so, interpret UK domestic legislation in a way which is compatible
with ECHR rights.
s4(2) If a court considers that legislation is incompatible with a Convention right, it may make a declaration of
incompatibility to that effect.
s6(1) Public authorities, including courts and tribunals, are required to act in a way which is compatible with
Convention rights. Parliament is not a public authority for the purposes of the Act.
Note too that, because courts are themselves ‘public authorities’, s. 6 HRA, they have a duty to act compatibly
with ECHR rights (led to creation of the ‘indirect horizontal effect’ – significant effect on development of privacy
law in the UK

SOURCES OF EUROPEAN LAW

Background to the EU (European Union)
 The EU evolved from three "communities" established by three international treaties in the 1950s
 The most important of these was the European Economic Community ('EEC') which was established by the
Treaty of Rome in 1957 (the UK joined the EEC in 1973)
 As a dualist state: international treaties do not have direct effect in domestic law unless they have been
incorporated by legislation
 The provisions of the treaties governing the EEC and the other two European communities therefore had to be
incorporated into domestic law by the European Communities Act (‘ECA’) 1972.
 s2(1) ECA: ensured the direct applicability of EU law and meant that it became a new source of UK law in its
own right.
o 'All such rights, power, liabilities, obligations and restrictions from time to time created or arising by or
under the Treaties … as in accordance with the Treaties are without further enactment to be given
legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced,
allowed and followed accordingly, and the expression 'enforceable Community right' ... shall be read
as referring to one which this subsection applies'.

European Union and ‘Brexit’

 The European Union was established by the Treaty on European Union (‘TEU’) in 1992 (Maastricht Treaty)
 This introduced a number of structural reforms and renamed the EEC as the European Community ('EC').
 Further reforms were introduced over subsequent years which culminated in the Treaty of Lisbon (2007).
 This established the current structure which is based on two treaties: the TEU and the Treaty on the
Functioning of the European Union ('TFEU' – this is an amended/renamed version of the Treaty of Rome)
 Following a referendum in 2016, the UK left the EU on 31 January 2020. The effect of EU law is now governed
by the European Union (Withdrawal) Act 2018, which repealed the ECA 1972 on the same day.
 In order to withdraw from the EU with less legal impact, the strategy adopted has been to retain law that
was introduced as a result of the UK’s membership of the EU/ EEC since 1973. This law can now be replaced
by new UK legislation, but it remains in force until it is repealed and replaced. Given the historic impact of EU
law, particularly in certain areas, it will continue to leave a legacy in the UK’s legal system for years to come

Sources of EU Law
 As there will be a sizeable body of ‘retained EU law’ in the UK’s legal system for the foreseeable future, it is still
important to be aware of the nature of EU law and, in outline, the manner in which it became enforceable in
domestic UK law.
 There are two main categories of EU law: primary, and secondary
Primary Secondary
 The Treaty on the European Union (1992), (TEU/  Regulations, Directives and Decisions made under

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Maastricht Treaty) Articles 288 and 289 of the TFEU.

 The Treaty on the Functioning of the European Union  Case law of the Court of Justice of the European Union
(TFEU) (2009 in its current form, originated as the (CJEU – Note that the Court of Justice used to be
Treaty of Rome in 1957) known as the ECJ but is now referred to as the CJEU)

Secondary Legislation: Regulations, Directives and Decisions

Regulations  Directly applicable in the legal systems of the Member States (means that they apply in the
Art 288 (they Member States without those states having to enact any national legal measures to implement
are directly them or to give the effect)
applicable)  Individuals will be able to rely on these in their national courts so long as certain conditions are met
(essentially that the EU law in question = sufficiently clear/unconditional (direct effect)
Decisions  Legally binding only on the parties to whom they are addressed
Directives  “Binding as to the result to be achieved but leave to the national authorities the choice of form and
methods”
 This means Member States must pass national legislation to implement them within their legal
system, e.g. the Consumer Protection Act 1987 gave effect to Directive 8/374 on Product Liability
 Where a directive has been implemented properly by the Member State, an individual will be able
to rely on the rights conferred by the national legislation which implemented it

Failure to implement a Directive

 It is not unusual for Member States to fail to implement a directive properly or on time
 If this happens, legal proceedings, known as 'infringement proceedings’, may be started against Member States by
the European Commission (eventually determined by the CJEU)
 The CJEU has also developed various mechanisms for individuals to rely on the directives themselves in the national
courts of their state where that Member State has failed properly to implement them by the deadline.
 There are three methods developed by the Court of Justice to enable directives to be enforced in national courts:
1. Direct effect: available if the implementation date has passed
2. Indirect effect: obligation on domestic courts to interpret domestic law compatibly with EU law if possible
3. State liability: compensation available for a state’s failure as long as it has sufficiently serious consequences

Secondary Legislation: Case law of the CJEU

 This jurisprudence has been hugely important in developing and transforming whole areas of EU law
 E.g. the principles which enabled individuals to rely on and enforce their rights under EU law in their national courts,
including the courts of England and Wales, were not laid down by the founding treaties but have largely been a
creation of case law instead
 These have all developed from the overarching, original principle established by the Court of Justice that EU law has
supremacy over conflicting domestic law
 Established in Van Gen den Loos and Costa v ENEL (1963-4): based on the core idea that the EEC/EU constituted “a
new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit
within limited fields…”

Preliminary references to the CJEU

 Much of the case law of the ECJ/ CJEU derives from preliminary references from national courts of Member States
 These are provided for by article 267 TFEU which permits national courts to be able to refer questions to the CJEU
about the interpretation of EU law and the validity of the acts of the EU institutions, including the secondary
legislation produced by them.
 Following receipt of the reference, the CJEU will make a ruling on the questions which were referred to it. This is
called a preliminary ruling. The ruling is passed to the national court to decide how to apply it. It should be noted
that there is no right of appeal from national courts to the CJEU.
 Preliminary Ruling: A ruling by the Court of Justice on a question of law referred to it by a national court
 The only way that a case can reach the CJEU from a national court is by means of a preliminary reference.

EU Political and Economic Union of 27 member states, established by the Maastricht Treaty 1992

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ECHR The European Convention on Human Rights: protects the human rights of people in countries that belong to the
Council of Europe. All 47 Member States of the Council have signed the Convention
CJEU The Court of Justice of the European Union. Interprets EU law to make sure it is applied in the same way in all
EU countries, and settles legal disputes between national governments and EU institutions
EC The European Commission is the executive branch of the European Union, responsible for proposing legislation,
enforcing EU laws and directing the union’s administrative operations

STATUTORY JUDICIAL BODIES AND TRIBUNALS

 Tribunals: specialist judicial bodies dealing with administrative and regulatory cases (no criminal jurisdiction)
 Cases may be started in a Tribunal or transferred between the County Court and the High Court, and tribunals
 There are two Tribunal levels: the First Tier Tribunal, and the Upper Tribunal
 The UT is a senior court and is equivalent to the High Court – hears appeals from the First Tier Tribunal.
 The current tribunals system was created by the Tribunals, Courts and Enforcement Act 2007, which
consolidated the previous system.

First Tier Tribunal

 There are seven first tier tribunals, known as 'chambers'. The chambers in the First-tier Tribunal hear appeals from
citizens against decisions made by government departments or agencies, although proceedings in the Property
Chamber are on a private law basis, as are proceedings in the Employment Tribunal.
 War Pensions and Armed Forces Compensation Chamber o Tax Chamber
 Social Entitlement Chamber o Immigration and Asylum Chamber
 Health, Education and Social Care Chamber o Property Chamber
 General Regulatory Chamber o Employment Tribunal (not Chamber)

Upper Tribunal
 Four chambers in the Upper Tribunal (employment appeals tribunal is upper level also but sits separately)
Administrative Appeals Chamber Tax and Chancery Immigration and Asylum Chamber Lands Chamber
Chamber
 War Pensions and Armed Forces Tax chamber Immigration and Asylum Chamber Property chamber
Compensation Chamber (FTT)
 Social Entitlement Chamber
 Health, Education and Social Care
Chamber
 General Regulatory Chamber

Judicial Personnel
Senior  Independent and statutory leader of the tribunal judiciary (established under Tribunal Courts and
President Enforcement Act 2007) – unlike Lord Chief Justice, his remit extends to Scotland/N. Ireland depending
on the jurisdiction concerned (immigration and asylum and tax = UK-Wide)
Tribunal/  Responsible for day-to-day judicial administration of their tribunal/their Chamber
Chamber  Vital link between Senior President of Tribunals, judicial officers of their tribunal, and senior judiciary
President outside the Tribunal service
Tribunal  Legally qualified and responsible for ensuring the individual tribunal hearings they chair make the
Judges correct decision in law
Tribunal  Specialists non-legally qualified ‘lay’ members of the panel hearing the case (not every panel includes
Members non-legal members)

Coroner’s Courts
 Coroners investigate all deaths where the cause is unknown, or where there is reason to think it was not due to
natural causes. Coroners' investigations are called 'inquests'.
 Coroners will hear evidence from people involved in events leading up to the death. Inquests are not as formal as
court hearings, although the parties may be represented by lawyers and there may be examination of witnesses
 Juries will be convened to decide the cause of death in some cases, notably when the deceased died in state custody.
 Coroners do require legal experience, but they are not considered to be members of the judiciary. Coroners are
barristers, solicitors or medical practitioners of not less than five years standing, who continue in their legal or

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medical practices when not sitting as coroners.

 A Coroner's decision is called a 'verdict'.

Public inquiries
 Public inquiries are major investigations, convened by government departments, that are given special
statutory powers to compel testimony and the release of other forms of evidence.
 Only justification required for a PI is the existence of "public concern" about a particular event/set of events.
 Public Inquiries have addressed topics as wide-ranging as transport accidents, fires, the mismanagement of
pension funds, self-inflicted deaths in custody, outbreaks of disease, and decision-making that has led to war.
 Notable recent inquiries include the public inquiry into the Grenfell disaster, the public inquiry into under-
cover policing, and the public inquiry into the UK's role in the Iraq War.

Inquiries Act 2005

 If a public inquiry is held under this Act, the inquiry has:
o Legal powers to compel witnesses to give evidence.
o Legal safeguards and procedures.
o Statutory framework for appointment of a chair and other inquiry personnel, the taking of evidence,
and production of a report and recommendations.
 However, there is nothing to compel the government to act on the recommendations of a statutory public
inquiry.

Public inquiries - other areas

 Town and Country planning decisions of public importance have long been made following public inquiries.
These inquiries take place under separate legislation.
 Inquiries happen when the local authority refuses planning permission for a development, and the developer
appeals. Inquiries also take place into proposed local plans (plans which set out what kind of development is
allowed where in a local area).
 Inquiries allow members of the public to appear as 'third parties' and challenge the evidence given by the
local authority and the developer.

Key Principles of the UK Constitution (KPUC)

INTRODUCTION
 There is no one comprehensive definition of a constitution but constitutional arrangements are generally
considered to be certain core objectives and principles inherent in the idea of ‘constitutionalism’:
o Exercise of government power should be within legal limits and accountable in law
o Power should be dispersed between the organisations of the state
o Government should be accountable to the people
o Fundamental rights and freedoms of citizens should be protected
 Unlike most other constitutions, the UK constitution has not been the product of revolution/conflict/
liberation but has evolved over a considerable amount of time in an unplanned way
 Professor Albert Venn Dicey: “that set of rules which directly or indirectly affect the distribution and exercise of
sovereign power in the state”

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 Sovereign power = has more than one meaning in constitutional law

 Originally meant simply the monarch, but now is also understood to refer to the source of primary authority
or ultimate power in the state
 Dicey’s description (distribution and exercise of power) = reference to how power is divided between the
different organisations of the state:
1. The Legislature – Houses of Parliament enacting new law, repealing/amending existing law
2. The Executive – the body which formulate/implement policy within law (government)
3. The Judiciary – Judges who are responsible for enforcement of criminal/civil law and disputes

CHARACTERISTICS OF THE UK CONSTITUTION

 Unlike the US, the UK does not have a constitution completely contained in a single document
 But the UK does have a body of rules (both written and unwritten) which allocate and regulate the functions of the state
– these rules come from a number of sources
 The constitution of the UK is “uncodified” in a single document, but constitutional rules come from:
1. Legislation 3. (Constitutional) Conventions
2. Case Law

1. Constitutional Legislation
 Acts of Parliament are the primary source of constitutional law in the UK
 However, not all Acts of Parliament are constitutional: classification depends on the subject matter of the legislation
 Thoburn v Sunderland City Council (2002): “We should recognise a hierarchy of Acts of Parliament: as it were
“ordinary” statutes and “constitutional” statues […] in my opinion a constitutional statute is one which
a) conditions the legal relationship between the citizen and the state in some general, overarching manner
b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights
 Quote from Laws LJ – gave the Magna Carta, Bill of Rights 1689, and the HRA 1998 as examples

2. Case Law
 Many principles of constitutional law have originated in the courts through the creation of common law
 Entick v Carrington (1765): Entick (suspected of writing seditious, anti-government pamphlets) had his property
searched by agents of the King “with force and arms.” Entick sued the agents for trespass. The agents’ defence was
that they acted on the authority of a warrant from Lord Halifax (one of the King’s ministers). Held: Lord Halifax had
no recognised right under statute or case precedent to issue a search warrant. This judgment established the
fundamental constitutional rule

3. Constitutional Conventions
 Conventions = rules about the conduct of the government – not enforceable laws but agreed upon/respected
 Informal rules of political practice, developed in an evolutionary way, without any clear source in legislation/case
law, e.g. Queen doesn’t refuse royal assent to Bills of Parliament once they have been passed though not obliged to

ATTRIBUTES OF THE UK CONSTITUTION

UNCODIFIED FLEXIBLE
Even though the UK lacks a single authoritative document, it In the UK, Parliament (as the supreme law-making body) can
does have, written down in various different places, the amend any law by simply passing a bill through Parliament –
institutions and rules that a single codified constitution would which is made easier as the legislature is dominated by the
otherwise set out government of the day. The advantage of an entrenched
constitution (like US) is certainty and greater constitutional
stability. The disadvantage can be rigidity and constitutional
stalemate
UNITARY SUPREME
In a unitary State, the primary legislative powers lie with the A supreme constitution is one which is not subject to a
central organs of State. In recent years, the UK has devolved superior external force. The UK has a supreme constitution
an increasing amount of power to regional bodies such as the (some argue the UK constitution was subordinate to the EU,

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Scottish Parliament and Welsh Assembly. However, the UK given the doctrine of the supremacy of EU law – rebutted by
remains a unitary State as Parliament remains the supreme the fact that UK has only voluntarily subjected itself to the EU
law-making body law and can choose to leave, like it did)
MONARCHICAL
The UK operates a monarchical system, albeit that the monarch’s powers have in practice and in law largely passed to
elected officials, and by convention the monarch does not personally exercise their powers other than as directed by the
monarch’s government

INTRODUCTION TO CONSTITUTIONAL CONVENTIONS

 Constitutional conventions are defined in the Cabinet Manual (1st edition) as:
o “Rules of constitutional practice that are regarded as binding in operation but not in law”
 Conventions are intended to be binding as a matter of constitutional conscience
 The Cabinet Manual = ‘a guide to laws, conventions and rules on the operation of government’
 Sets out in detail how the executive should operate, first published in 2011, the intro explains:
o “For the first time the conventions determining how Government operates are set out in one place”

Advantages/Usefulness of Conventions
 Conventions are a flexible way of ‘filling in the gaps’ and developing constitutional rules informally
 They generally develop to reflect contemporary constitutional values and regulate the relationships between
the various institutions in the state as well as creating standards of behaviour that are seen to be appropriate
in a constitutional system
 They underpin the operation of the Cabinet system, defining what Ministers are responsible for
 They regulate relations between the House of Lords and Commons, between Executive and Monarch, and
between the judiciary and the other organisations of the state
 As a more general political form of rule, a convention can be displaced by law and that, if there is an
inconsistency between them, law will prevail

Conventions relating to the legislature

 The House of Lords should defer to the House of Commons.
 The House of Lords should not reject at second reading any government legislation that has been passed by the
House of Commons and that carries out a manifesto commitment (i.e. a promise to the electorate in the course of a
preceding general election). This is known as the Salisbury-Addison convention.
 Financial bills (e.g. relating to government expenditure and taxation) are only introduced by a Cabinet minister in the
House of Commons.
 The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or
Northern Ireland without the consent of the devolved administration (the Sewel Convention).
 Following the parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to
war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted
before the government embarks on any major foreign policy initiatives involving the use of armed forces.

Conventions relating to the executive

 The monarch acts in accordance with the advice given by her Ministers (e.g. with regard to proroguing Parliament).
 The monarch will not exercise her legal right to refuse royal assent to bills passed through Parliament.
 The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence
of the House of Commons.
 The Prime Minister chooses the Cabinet Ministers (i.e. the heads of government departments).
 The Prime Minister and the Chancellor of the Exchequer should be MPs.
 After a vote of no confidence by the House of Commons, the government will resign and advise the monarch to
dissolve Parliament. This leads to a general election. (Note, however, the impact of the Fixed-term Parliaments Act
2011.)
 The monarch must be asked for consent to proposed legislation affecting the interests of the monarchy.

Conventions relating to the judiciary

 Judges should not be politically active (this would risk the appearance of judicial bias and undermine the parties'

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right to a fair trial).

 Parliament must not criticise the professional conduct of judges.
 When the executive criticises the judiciary, as exemplified by Boris Johnson, who gave his view as PM in September
2019 that the Supreme Court's decision that he had unlawfully prorogued Parliament was "wrong", it can be argued
that this is a breach of convention, as well as a slight to the principles of the separation of powers and the rule of law.

Conventions and the Law

 Conventions are not matters of law but broader rules of political or institutional morality
 They cannot be legally enforced but Courts will recognise them and acknowledge their significance as part of the
broader set of rules affecting constitutional standards
R (Miller) v The Supreme Court rejected the argument that the government was legally bound to seek the consent of
Secretary of the Scottish Parliament before triggering Article 50 and therefore the UK’s exit from the EU based on the
State for fact that the Sewel convention has been referred to in s28(8) of the Scotland Act. The Supreme Court
Exiting the held that s28(8) functioned as an acknowledgement of the convention; it did not create a new rule with
EU (2017) any legal force

PARLIAMENT
 Parliament = the supreme legislative (law-making) body in the UK
 Consists of The House of Commons (representative elected body of 650 members) and House of Lords
(unelected body of appointed life peers, hereditary peers and bishops)
 In practice, most – but not all – legislation begins with a proposal by the executive
 The key function of Parliament as a whole are to:
o Debate and scrutinise proposed legislation
o Propose amendments to legislation
o Extract information from the executive and hold it to account on its policies and acts
o Scrutinise public expenditure and taxation

MPs  Each MP has a ‘constituency’ (geographical area they were elected by the people to represent)
 Divide their time between working in House of Commons, their political party, their constituency
 Constituency work takes form of weekly ‘surgery’ where local people can talk to their MP about any
problems or matters which concern them and MP in turn then make representation on their behalf
The House of  MPs (members of HoC): elected by the public in a ‘general election’ (or occasionally via a by-
Commons election)
 Under the Fixed-term Parliament Act 2011, general elections are held on the first Thursday in May
at five-yearly intervals
 2 other ways a general election can be triggered: vote of no confidence in government or a motion
for a general election agreed by a two-thirds majority of the 650 seats in the House of Commons
 Most MPs are members of political parties
A majority of  Political party which wins an overall majority of seats in the HoC at general election form govrnmnt
seats  Overall majority = number of seats won by winning party is more than combined number of seats
for all other parties in the new Parliament
 If no single party wins a majority of seats, a ‘hung Parliament’ will ensue, as in 2010
 Biggest party can form a minority government or enter a coalition with another party in order to
create an overall majority
The PM  Usually case for leader of ruling political party to become PM – chairs the Cabinet
 Can be a change of PM other than as a result of a general election, e.g. when the incumbent resigns
 In that event, no election necessary, PM elected by members of their own political party
 PM is Queen’s principal advisor and has overall responsibility for policy/operation of government
 One of the key functions of the HoC is to hold the government to account. Each Wednesday at
midday, when Parliament is sitting, Prime Minister’s Question Time – PMQs – takes place in the
House of Commons. The Prime Minister fields questions from MPs on current political issues
The Speaker  MP who has been elected to the office by other MPs
 By convention the Speaker remains politically impartial and so must resign from their political party
on appointment – they still work as an MP
 The Speaker has full authority to enforce the rules of behaviour in the HoC, e.g. suspending MPs

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who refuse to behave appropriately

Parliamentary  Much of parliamentary work consists of sitting on committees, made up of MPs and Lords
Committees  Purpose of these committees is to scrutinise work of government and examine proposals for
primary/secondary legislation
The House of  Not an elected body – consists of 800 peers
Lords  Peerages have always been granted by the sovereign. Hereditary peerages are passed down through
families. Life peerages are also granted by the monarch, on the advice of the Prime Minister - this is
an example of a prerogative power.
 In 1999, the House of Lords Act reduced the number of hereditary peers who may sit and vote in
the House to 91. The remainder of members are life peers (granted peerage by the Sovereign, for
life), and bishops.

Constitutional Reform
 Until the Constitutional Reform Act 2005, the most senior court in the UK was a part of the House of Lords. The
'Lords of Appeal in Ordinary’, were 12 judges appointed as members of the HoL to hear appeals from the lower
courts, as the 'Appellate Committee of the House of Lords'.
 This reflects the historical origins of the House of Lords as advisers to the monarch, who also had judicial powers.
 In 2005 the House of Lords' judicial function was separated from Parliament.
 Also marked the end of the Lord Chancellor's combined role as head of the judiciary, a member of the executive, and
Speaker of the House of Lords.
 In 2009, the House of Lords' judicial function was formally transferred to the Supreme Court (‘UKSC’). The
incumbent law Lords became the first Justices of the Supreme Court. The Supreme Court sits in Westminster

Powers of the House of Lords (scrutiny and revision of legislation)

 As the House of Commons is democratically elected, it is the focus of power and authority in the United Kingdom.
 The House of Commons alone is responsible for making decisions on public finances, for example legislation which
changes tax law, or introduces new taxes. The Lords can consider but not block or amend this legislation.
 The House of Lords may scrutinise and make amendments to legislation approved by the House of Commons
 Most types of primary legislation (Bills) require approval by the House of Lords before the Sovereign gives 'royal
assent' and the Bills become Acts of Parliament. Government defeats in the Lords – when legislative proposals by the
government are not accepted – usually result in amendments to the legislation by government, rather than
wholesale defeat of the Bill.

THE EXECUTIVE
 Power of State divided between: the executive, the legislature (Parliament), the judiciary (courts/tribunals)
 Basic structure of executive:
o The Monarch (nominal and symbolic role)
o The PM and Cabinet (21 senior government ministers called ‘Secretaries of State’ & Lord Chancellor
o Government departments (run by politically independent civil servants)

Structure of government ‘departments’

 Business of the central Executive is divided into administratively distinct sections which are led by a senior politician, usually
referred to as the Secretary of State (though some have special titles, e.g. the Chancellor of the Exchequer)
 Secretaries of State are members of the Cabinet.
 Within each department or ministry, there are also several junior ministers - the second rank is normally known as a Minister of
State and the third rank as a Parliamentary Under-Secretary of State (colloquially all 'Ministers')
 The number/names/responsibilities of ministries are not fixed – governments can, and often do, make changes.
 It is important to understand that all these Ministers are political appointees chosen by the Prime Minister. If there is a change
of government, the Ministers will leave their posts. Ministers may also change departments during the period of time their
political party is in power (known as ‘Cabinet reshuffle’ – made by PM as well)
 In contrast: the civil servants who work in government departments are politically neutral. They do not have to move jobs when
there is a change of government.

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Powers of government departments

 The powers of government departments are derived from statute or the common law – usually royal prerogative.
 N.B. the government exercises its powers in the name of the monarch, but that the exercise of prerogative power today means
the exercise of power by the government without parliamentary approval.
 The internal administrative arrangements of government departments are generally made under prerogative powers, except for
appointment of accounting officers – they are responsible for the preparation of department accounts. They are appointed by
the Treasury, pursuant to the Government Resources and Accounts Act 2000.
 The allocation of funds to government departments requires the approval of Parliament.
Delegation of power
 This means the lawful exercise of power, granted to a minister by legislation or under common law, transferred to a government
official of lower rank working in the same department.
 ‘Carltona principle’ = actions of government department officials are synonymous with actions of Minister in charge
 Established in Carltona Ltd v Commissioners of Works (1943)
 Ministers remain politically answerable to Parliament for such decisions, however
Limits on the power of the executive (Judicial Review as consequence)
 The government can only act if it is expressly authorised, either by statute or common law, to do so.
 If the government acts in excess of the powers it is given, the Administrative Court will intervene – not of its own accord, but if a
claim is started against the government.
 The legal mechanism by which individuals or groups, who assert that the government has acted unlawfully in this way, can make
such a claim, is called 'judicial review'.
Constitutional Principles
 The Crown (government) and its ministers are subject to the following constitutional principles:
1. Laws may not be suspended: the government may not suspend any law without the consent of Parliament (Bill of Rights, s. 1).
2. Taxation: All taxes require the consent of Parliament. They must be set out in legislation.
3. Habeas corpus: the restrictions imposed on the arbitrary imprisonment and punishment of citizens remain an important
limitation on government power today and can be traced back a long way into history, including to the Magna Carta (1215).
4. Freedom from arrest: there are no longer any common law powers exercisable by the monarch or by government ministers, to
issue warrants of search or arrest.
5. Impeachment: Parliament can inquire into alleged illegal acts by ministers (this has very seldom been exercised).
Local Government
 Important to understand difference between central government (the government departments headed by Secretaries of State),
and local government, e.g. county or district councils.
 Legislation passed by Parliament regulates the structure, powers and duties of local government bodies. The structure of local
authorities is complex and varies across the UK.
 Local authorities are responsible for the implementation of central government policies at the local level, e.g. for the collection of
council tax, the maintenance of highways, and decisions about building new housing, as well as applying their own local policies.
 In context of PGDL, key constitutional principles limiting the power of central government also apply to local government, and
the exercise of local government power is reviewable by the Administrative Court in the same way.

THE JUDICIARY
 The role of the judiciary can be summarised as follows:
o To determine the outcome of legal disputes between individuals (natural or legal persons).
o To decide the appropriate punishment in criminal cases.
o To interpret the proper meaning of legislation.
o In the case of the Administrative Court, to determine, through judicial review, whether the
government has lawfully exercised its powers. The Administrative Court is where most public law
claims begin. (Appeals lie to the Court of Appeal (Civil Division), and ultimately the Supreme Court.)

Constitutional Reform Act 2005

 The Constitutional Reform Act (‘CRA’) 2005 was designed to address concerns that the separation of powers between the
judiciary and the other two bodies of state was blurred.
 E.g. prior to the Act, the Lord Chancellor was the head of the judiciary, a government minister and also the presiding officer in
the chamber of the House of Lords (the equivalent of the Speaker). Until the 1990s he also acted as a senior judge as one of the
‘law lords.’
 The 2005 Act brought in the following key changes:
1. Reformed office of the Lord Chancellor so judicial functions have largely been taken over by the Lord Chief Justice
2. Established the Supreme Court, as a separate entity from the Appellate Committee of the House of Lords
3. Created the Judicial Appointments Commission for the appointment of judges. Prior to this, the Queen had appointed judges on
the 'advice' of the Lord Chancellor
The Lord Chancellor

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 Queen appoints LC on advice of PM – statutory restrictions on who the PM can recommend for appointment.
 LC is now responsible for the administration of the court system, and also holds the post of Secretary of State for Justice although
this dual role has been subject to some criticism.
 There are statutory safeguards to prevent excessive influence by the Lord Chancellor over judicial decision-making:
o The Lord Chancellor has a legal duty to uphold the independence of the judiciary (s. 3(1) CRA 2005).
o The Lord Chancellor must not seek to influence particular judicial decisions through any special access to the judiciary
(s. 3(4) CRA).
The Lord Chief Justice
 Appointed by a special panel convened by the Judicial Appointments Commission (appointments generally made from the ranks
of current Court of Appeal judges)
 The Lord Chief Justice is the Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales.
 The key responsibilities of this office are:
o Representing the views of the judiciary of England and Wales to Parliament and government.
o The welfare, training and guidance of the judiciary of England and Wales. (The provision of resources for the judiciary
are allotted by the Lord Chancellor).
o The deployment of judges and the allocation of work in courts in England and Wales.
The Judiciary – constitutional principles
 When judges are 'sworn in' (the formal ceremony that takes place before they can begin work as a judge), they swear two oaths.
 The first oath is allegiance to the sovereign and second is the 'judicial oath': "I will do right by all manner of people after the laws
and usages of this realm, without fear or favour, affection or ill will".
 The judicial oath references two key constitutional principles:
o Judgment according to applicable law ("after the laws and usages of this realm")
o Impartial and independent judgement ("without fear or favour …")
‘Justiciability’
 In the Public Law context, there are strong sensitivities over whether all government decisions are reviewable by the
Administrative Court, or by a Tribunal with judicial review jurisdiction. This reflects the principle of the separation of powers.
 There are some government acts (usually carried out under the exercise of prerogative power) which have long been seen as
non-justiciable, meaning that the courts accept that they have no or very limited jurisdiction to decide whether the act is lawful.
 Reason for non-justiciability is that the question is a purely political one, and so not suitable for determination by judges. BUT all
government powers are legally finite: one of the courts' key roles is to determine where the boundaries of power lie.
 The issue of justiciability was the first question for the Supreme Court in Cherry and Miller (No 2) (2019). The Court rejected the
government's argument that the prorogation of Parliament was a purely political issue and therefore not justiciable.

Judges as guardians of the constitution? No separate and special ‘constitutional court’ in the UK, and questions of constitutional law
are determined in the 'ordinary' courts – ultimately, the Supreme Court. In 2016, the then President of the Supreme Court, Lady
Hale, said that: "we [the Supreme Court] have definitely become the guardians of the United Kingdom constitution". Lady Hale gave
three reasons for this:
1. The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland.
2. They restrict the government to the exercise of powers within the limits that Parliament has set: "this is nothing new. The higher
DEVOLUTION
courts have been doing this for centuries […] in this we see ourselves as servants of the sovereign legislature".
 "protect
3. They The UK the
nowfundamental
consists of rights
England, Wales, Scotland
of individuals and NorthernbyIreland.
against encroachment This was not always the case.
the State".
 England and Wales have been united for much longer than the other territories. Under the Laws in Wales Acts
of 1535-1542, administration of Welsh territories was fully incorporated into the Kingdom of England.
 The beginnings of the UK can be traced back to 1707, the date of political union between England/Scotland
 In 1801 the Acts of Union joined the Kingdom of Ireland to England, Wales and Scotland
 As a result of complex political and social forces, southern and western (principally Catholic) Ireland seceded
from the United Kingdom in 1922. These 26 counties became the Irish Free State and then, in 1937, the
independent Republic of Ireland (though this was not formally declared until 1949). Six counties in the
(principally Protestant) north-east of Ireland remained as part of the United Kingdom – Northern Ireland.

What is devolution?
 The UK Parliament, sitting at Westminster, is the principal legislative authority in the UK.
 'Devolution' refers to the grant by the UK Parliament of legislative powers to the 'devolved' legislatures and administrations
(executives), which are:
o Scottish Parliament – Scottish Government
o Senedd (Welsh Parliament) – Welsh Government
o Northern Ireland Assembly -- Northern Ireland Executive
What is devolved legislation?
 Devolved legislation is legislation produced by the three devolved Parliaments or Assemblies of Scotland, Wales, and N. Ireland.
 It has the characteristics of primary legislation produced by the Westminster Parliament, but it cannot be created without the

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enabling powers of an Act of the UK Parliament.

 Devolution legislation:
o Scotland Act 1998/Scotland Act 2016  Devolved legislation in Scotland
o Govt. of Wales Acts 1998 and 2006, Wales Act 2017  Devolved legislation in Wales
o Northern Ireland Acts 1998 and 2006  Devolved legislation in N. Ireland
Devolved Matters and Reserved Matters
 Areas of government where decision-making has been delegated by UK Parliament to the relevant devolved
Devolved administration
matters  For example, education is a devolved matter in Scotland, as is the environment. This means Scotland can make its
own laws on those areas (amongst many others). However, all devolved laws are still subject to review by the
Supreme Court, which also has the power to determine disputes over jurisdiction between the devolved
administrations and Westminster
Reserved  Decisions still taken in Westminster, even though they have effect in Scotland, Wales and Northern Ireland
matters  E.g. Immigration, defence and foreign policy = reserved matters.
 The responsibility for fiscal policy and public expenditure across the whole of the UK also belongs to HM Treasury, i.e. central
government at Westminster, though the Scottish and Welsh governments have had a degree of control over raising revenue in
recent years.
Why devolve?
 Designed to decentralise government power: bring it closer to the people governed, so that local factors are better understood
 Reflects the importance of nationalist opinion in the constituent countries of the United Kingdom, evident in the strong
performance of nationalist political parties, notably in Scotland and N. Ireland.
 Devolution was introduced following public referendums in Scotland, Wales and Northern Ireland in 1997 and 1998 which
endorsed the initiative.
Devolution in Scotland
 General rule = Acts of (the UK) Parliament extend to Scotland only if they deal with non-devolved (reserved) matters
 s28(8) of the Scotland Act 1998 recognises that the UK Parliament will "not normally legislate with regard to devolved
matters without the consent of the Scottish Parliament.”
 This consent to legislate on a devolved matter is indicated by way of a 'Legislative Consent Motion' in the devolved Parliament.
 s28(8) represents the statutory recognition of the Sewel Convention, but it is important to note that it does not give binding legal
effect to it, as confirmed by the Supreme Court in Miller (No 1) (2017)
 s 28(7): it is explicitly stated that the power of the Scottish Parliament to pass Acts: "does not affect the power of the Parliament
of the United Kingdom to make laws for Scotland". Ultimately, therefore, a lack of consent from the devolved parliament can be
overridden at Westminster.
Devolution in Wales
 Wales is not a separate legal jurisdiction from England. Nevertheless, applicable law may be different in England and Wales.
 The Wales Act 2017 extended the powers devolved to Wales under the Government of Wales Act 2006 (‘GOWA’). Like Scotland,
Welsh government is now based on a 'reserved matters' model.
 Matters reserved to the UK Government are now listed in S 7A to the GOWA 2006. The general rule is that Acts of (the UK)
Parliament will only apply to Wales if they deal with reserved matters.
 The Sewel Convention is also reflected in the GOWA (s.107(6)). The consent of the Senedd (known until 2020 as the National
Assembly for Wales) is sought by way of Legislative Consent Motion, in the same way as in Scotland and Northern Ireland.
 However, s. 107(5) makes it clear that the power of the Senedd to make Acts: "does not affect the power of the United Kingdom
to make laws for Wales"
Devolution in Northern Ireland
 The devolved institutions of government in Northern Ireland were constituted by the Northern Ireland Act 1998.
 The Northern Ireland Assembly is the devolved legislature. It is a unicameral body of 90 members who are democratically
elected. It is often referred to as 'Stormont', because it sits at the Stormont Parliament Buildings near Belfast.
 The Assembly selects the ministers of the Northern Ireland Executive, which is based on a power-sharing model, headed by a
First Minister and Deputy First Minister from the two largest parties.
 In the same way as Scotland and Wales, the general rule is that Acts of Parliament may only extend to Northern Ireland if they
cover non-devolved matters, (e.g. immigration).
 The Sewel Convention also applies to N. Ireland: an Act of the Westminster Parliament on a devolved matter should only extend
to N. Ireland if the Assembly has passed a legislative consent motion.
 However, s5(6) of the Northern Ireland Act provides that the UK Parliament may still legislate on devolved matters without
such consent
Legislative conflict – role of the Supreme Court
 The Supreme Court is the final court of appeal for civil cases in the UK. It also has jurisdiction under the Scotland Act 1998, the
Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended by the Wales Act 2017), to resolve questions of
whether legislation by the devolved administrations goes beyond the scope of their legislative competence.
 This is one of the key constitutional roles of the Supreme Court. The Supreme Court will look at the terms of the devolved
legislation and decide whether it falls within the 'reserved matters' that are outside the competence of the devolved

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administration. If that is the case, the devolved legislation is not law.

Reserved matter – analysis
 The question of the legal effect of Acts of the UK Parliament / devolved legislation can be broken down like this:
1. Which of the devolved administrations is in issue? This will tell you which of the Acts of Parliament to look at.
2. What matter or area does the legislation concern? (e.g. roads, railways, housing)
3. Is that matter listed as a ‘reserved matter’ in the relevant Act? Reserved matters will be listed in one of the Schedules to the
relevant Act. If it is not explicitly listed as a ‘reserved matter’, could it be interpreted as falling within a reserved matter?
4. If so, then legislation passed by the UK Parliament will have legal effect in the devolved administration. Conversely, any
legislation passed by the devolved administration will not have legal effect.
5. If the matter is not deemed as a 'reserved matter', legislation passed by the UK Parliament will still have legal effect in the
devolved administration. However, the convention is that the consent of the devolved administration should have been
sought and indicated by way of a Legislative Consent Motion.

THE MONARCH
 Over the span of more than 400 years, and notably since the ‘Glorious Revolution’ of 1688, the UK’s
constitutional system has evolved from an absolute monarchy to a democratic, constitutional monarchy.
 Absolute monarchy: Supreme authority unrestricted by laws or customs.
 Constitutional monarchy: Authority derives from and is limited by the constitution and the law.
 In the modern era, the monarch, though still the head of state, has very limited personal powers over the
conduct of government.
 However, a significant feature of the UK constitution is that the activities of government are still carried out in
the name of the monarch. This is why the Executive (the government) is often still referred to as 'the Crown'.
The UK’s Executive is formally referred to as 'Her Majesty's Government'.
 Some of the monarch's remaining personal powers, limited by constitutional convention, are:
o Appointing the Prime Minister
o Dissolving Parliament in some circumstances
o Giving 'Royal Assent' to Acts of Parliament
 The law-making power of Parliament is described as being vested in the 'Queen-in-Parliament'.
 Criminal prosecution and judicial review – nominally brought in the name of the crown

The Royal Prerogative

 The royal prerogative or 'Crown prerogative' refers to the powers that were historically vested in the monarch since the days of
absolutist monarchy (pre-1688). They are not statutory powers and so have never been created or approved by Parliament
 It is a significant feature of the UK constitution that such powers still form part of the legal authority of the executive, even if they
are no longer used in practice by the monarch on her own initiative. Today, they are still legitimate powers but are only exercised
on the advice of the Prime Minister or other senior government ministers.
 Some remaining prerogative powers include:
o Summoning and proroguing Parliament
o Appointing and dismissing government ministers
o Mobilising the armed forces, including the declaration of war
o Negotiating treaties

Miller v the Prime Minister

 In September 2019, in the wider context of the imminent departure of the UK from the European Union, Gina Miller and others
brought a legal challenge to the advice given to the Queen by Boris Johnson, the Prime Minister, to prorogue Parliament.
 As a result of the Prime Minister's advice, the Queen prorogued Parliament for a period of five weeks. The Supreme Court
decided that the Prime Minister's advice was unlawful because it had the effect of:
o "frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional
functions as a legislature and as the body responsible for the supervision of the executive […] This prolonged suspension
of Parliamentary democracy took place in quite exceptional circumstances […] the effect upon the fundamentals of our
democracy was extreme".
 This judgment is of critical importance for many reasons. In this context it illustrates both the convention that the monarch acts
only on the Prime Minister's advice, and that the exercise of prerogative powers by the Executive is not immune from challenge
in the courts.

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Responsible Government (Gov.uk)

PRIME MINISTER, CABINET & COLLECTIVE RESPONSIBILITY

The Prime Minister’s Powers The Cabinet Office

 PM has very few powers in law.  Cabinet Office = department of the UK Government.
 Office carries significant powers by  Its purpose: to support the PM and the Cabinet and ensure
convention: that the Civil Service helps the government attain its policy
o Advising Queen to appoint/remove goals.
ministers – by convention, always followed.  PM = a Minister of the Cabinet Office. Other ministers include
o Determining size/composition of the the Leader of the House of Commons and, if someone is
Cabinet selected a Deputy Prime Minister.
o Determining/coordinating the general  The Head of the Civil Service = the senior government official
policy direction of the government within the Cabinet Office, operating as the Cabinet Secretary.
o Determining subject matter/composition of  The Cabinet Office has responsibility for the following key areas
Cabinet committees of government policy:
o Determining when the Cabinet meets 1. Political and constitutional reform
o Determining the agenda for Cabinet 2. The Civil Service
discussion 3. Supporting the National Security Council and Joint
 PM is also the Minister for the Civil Service, Intelligence Organisation
and First Lord of the Treasury. 4. The Independent Parliamentary Standards Authority
The Privy Council (privy means secret)

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 Historical origins of the PC = the group of noblemen who were close to the monarch and relied upon for their advice.
 Today, the 'privy counsellors' – numbering over 700 – are individuals who hold, or have held, high political or judicial
office (majority play no part in the Privy Council's day-to-day business – mostly conducted by government ministers)
 The Privy Council 'advises' the monarch on the exercise of the royal prerogative. It meets to secure the monarch's
formal approval of documents which have already been approved by the Cabinet, or by government departments.
 Proceedings of the Privy Council are secret. Its members (which include each member of the Cabinet) swear an oath
of allegiance, which includes a promise to "keep secret all matters revealed or treated of in the privy council".
 Leaders of opposition parties are also appointed, so that they can be given classified information, if necessary
 In September 2019, following a meeting of the Privy Council at the Queen's Balmoral Estate, the Queen agreed to the
Prime Minister's request to exercise her royal prerogative to 'prorogue' Parliament. Parliament's consent was not
required.
 The Supreme Court subsequently ruled the prorogation was unlawful – Miller v The Prime Minister (No2) [2019]
The Cabinet
 The Cabinet = the body of senior ministers at the heart of the central executive (chaired by PM and meets weekly)
 Comprised of the senior ministers – ‘Secretaries of State’ – in each government department, the Lord Chancellor and
a few other senior ministers (the Chief Secretary to the Treasury and the Leader of the House of Commons)
 Exists as a matter of convention – its powers are not found in legislation
 Cabinet Ministers are also Privy Counsellors and bound by an oath of secrecy.
 "Cabinet is the ultimate decision-making body of government. The purpose of Cabinet and its committees is to
provide a framework for ministers to consider and make collective decisions on policy issues." - (The Cabinet Manual,
para 4.1).
Cabinet Committees
 To relieve the pressure on decision-making, several cabinet committees exist to deal with specific areas of
government administration, such as national security.
 The number, terms of reference and subject matter of these committees is within the Prime Minister's control.
 Cabinet committee decisions have the same status as decisions of the full Cabinet.
 You may have heard of the 'COBRA' committee in the context of national emergencies
 COBR stands for Cabinet Office Briefing Room and it provides the mechanism for agreeing government response to
major emergencies such as a terrorist attack or pandemic.
 Meetings of COBR are Cabinet committee meetings, but there is no fixed membership so that the government
department with responsibility for the issue under consideration can take the lead

Collective ministerial responsibility

 The decisions made by Cabinet and its committees are subject to the ‘doctrine’/convention of CMR
 This means that all government ministers are bound by the collective decisions of Cabinet.
 It is ultimately necessary for Parliament to have continued confidence in the government
 There are seen to be three component parts of this convention:
CONFIDENTIALITY UNANMITY CONFIDENCE
 There is a duty on ministers not to  Once a decision or agreement has  The government needs to ensure
disclose confidential matters been reached, all ministers should that it has the confidence of
discussed in Cabinet publicly agree with government Parliament and by extension, the
 This information extends to Cabinet policy. If they do not feel able to do people.
papers and also to ministerial this, they should resign.  PM and their government is in office
memoirs, which have to be  The principle behind this is that because it has achieved a majority
approved for publication. Cabinet ministers should have had of seats in the Commons. The
 Attorney-General v Jonathan Cape the right to contribute to the continued confidence of the
(1976): concerned the publication confidential debate leading up to Commons in the government is
of the diaries of the late Richard the decision. If they lose the therefore essential – this is
Crossman argument in Cabinet, they are considerably bolstered by a
 Case is notable for the failure of the obliged to sign up to the majority presenting united front in
Attorney-General’s argument that view in a ‘united front’ or to leave government.
the convention could be enforced in the government.  If this confidence retreats, there are
the courts in its own right.  E.g, Michael Heseltine resigned as situations – almost invariably when
 However, the court did accept that Defence Secretary in the Thatcher a government’s majority is very
in some circumstances, (though not government over the ‘Westland fragile – when the Leader of the
in these, given the length of time Affair’ in 1986, partly because he Opposition may table a ‘vote of no

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that had elapsed) the accepted legal felt he was excluded from the confidence’ in the government
cause of action of breach of decision-making process.  If the government loses such a vote,
confidence could potentially extend  In 2003 three senior ministers there is a very strong conventional
to Cabinet information. resigned from the Blair pressure on the PM to resign and
 Widgery’s comment also appears to administration over intervention in bring about a general election.
refer to the practice of Iraq: Robin Cook; Clare Short; and  Note that this process has become
unattributable briefing of journalists John Denham slightly more involved since the
by ministers, which can be seen as a  More recently, Boris Johnson, Fixed-term Parliaments Act 2011,
form of political pressure reducing Dominic Raab and David Davis all but that the convention still
valve. resigned over the direction of operates alongside it.
Theresa May’s ‘Brexit’ policy in
2018.

INDIVIDUAL MINISTERIAL RESPONSIBILITY (IMR)

 The other ‘twin convention’ of the UK’s constitution = IMR
 Plays a role in relation to the accountability of government but has been supplemented and shadowed to a
large extent by the more recent innovation of the Ministerial Code
 Classic doctrine of IMR = required ministers to accept responsibility and, if necessary, resign for any errors
and failures of their departments
 The uncertainty surrounding this convention arises from two areas:
o Its unavoidable entanglement with the short-term realities of the political world
o Assessing the degree of fault and responsibility in a time of modern, ‘big government’
 As a far more interventionist form of government took hold during the 20 th century, the disconnect between
the political leadership at the top and operational matters on the ground became more apparent
 This issue came to the forefront in 1954 with the Crichel Down affair, which led to the eventual resignation of
the Minister of Agriculture, Sir Thomas Dugdale.
 The controversy involved the reneging on a promise by civil servants in his department and led to an inquiry,
following which several recommendations were made, which shaped the future direction of the convention.
The Crichel Down affair thus led to a redefinition of the convention on IMR

Maxwell Fyfe guidelines

 The recommendations were made by the Home Secretary, Sir David Maxwell Fyfe
 He distinguished between situations in which the relevant minister had personal involvement or knowledge of the
issue or error and those where the minister played no role and, given the size of UK government by the mid-20 th
century, could not have been expected to.
 In the first two situations, Maxwell Fyfe believed that the minister should resign. In the remaining two he believed that
the minister need not do so:
1. Where there is an explicit order made by a minister, in which case the minister must protect the civil servant who
has carried out his order.
2. When the civil servant acts properly in accordance with policy laid down by the minister, in which case the minister
must protect the civil servant.
3. Where an official makes a mistake or causes some delay, but not on an important issue of policy.
4. Where a civil servant has taken the action, of which the minister disapproved and has no prior knowledge, and the
conduct of the official is reprehensible.

Further development of IMR

 The partial redefinition of the convention to require some personal knowledge or involvement by the minister became
more pronounced in subsequent decades
 Two serious incidents involving prison escapes exemplified this trend.
Maze Prison Policy/Operational Divide: The Northern Ireland Secretary, James Prior, did not resign following a mass
Breakout 1983 breakout of IRA prisoners from the Maze prison. Prior distinguished between responsibility for policy,
which belonged to the minister, and the failure of officials to properly implement policy, for which he
maintained the minister was not necessarily accountable.
Whitemoor Policy/Operational again: The then Home Secretary, Michael Howard, did not resign following the escape

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Prison of six high category prisoners from Whitemoor Prison in 1994. This led to a subsequent dispute with the
Breakout 1994 Director of the Prison Service, Derek Lewis, who he blamed for the operational failings in security and
dismissed.
 It is difficult to extract any further clear rules as to the circumstances under which a minister will now be expected to
resign. One can say, however, that it is very rare for a minister to resign for reasons that they themselves directly
attribute to an error of policy.

Accountability (General note)

 While there has been a weakening over time in the degree of obligation felt by ministers to resign, there has been a
greater emphasis on more direct forms of accountability.
 The importance of ministers keeping Parliament informed about departmental problems and errors, rather than
necessarily resigning, has become more pronounced over the last two decades or so, notably following the lessons
drawn in the Scott Report (published in 1996) into the ‘Arms to Iraq affair’ from the 1980s. In some ways this can be
seen as a more constructive response to a serious problem within government.
 This enhanced emphasis on accountability and openness of government (though again subject to short-term calculation
in the political realm) is one of the key trends in modern public law and one of the principal rationales for judicial
scrutiny of the executive (also a notable feature of the Ministerial Code)

THE MINISTERIAL CODE

 MC = relatively new development – reflects the impetus towards transparency and accountability in
government (its effectiveness is continually debated given the absence of any real enforcement mechanism)
 The constitutional principle of ‘responsible government’ has been governed/influenced by conventions
 These forms of constitutional obligation are quite ephemeral in nature as they represent informal attitudes
towards conduct and behaviour in government, not defined standards.
 Increasingly, therefore, it was felt that more formal, written guidance for ministers was required to define
governmental standards more effectively.
 Written guidance for Cabinet ministers is thought to have originated in the 1980s in the form of confidential
'Questions of Procedure for Ministers’ – first made publicly available by John Major’s government in 1992.
 1st version to be entitled the 'Ministerial Code' was published at the start of Tony Blair’s premiership in 1997

Principles of the Ministerial Code Unenforceable set of rules

MC sets out the principles underpinning the standards of 
More formal that the twin conventions of ‘collective’ and
conduct expected of Ministers. ‘individual’ ministerial responsibility
They’re expected to observe the 7 Principles of Public Life:  BUT is an unenforceable set of rules (‘soft law’)
1. Selflessness 5. Openness  Investigation of a breach, and any consequences, are
2. Integrity 6. Honesty entirely at the discretion of the Prime Minister.
3. Objectivity 7. Leadership  No requirement to follow any particular investigative
4. Accountability process in the event of an alleged breach.
Application of the code  The Ministerial Code covers the following areas:
The Ministerial Code applies to: o The principle of collective responsibility
 Government Ministers (in full) o Proper and transparent engagement with
 Parliamentary private secretaries (some parts only) Parliament
 Special advisers (some parts only) o Avoiding potential conflicts of interest
o Proper use of government resources
Collective responsibility codified
 MC effectively codifies this principle adding in some further detail in relation to Cabinet documents and committees.
 General principle 2.1 of the Code states the following:
o 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.
Engagement with Parliament
 Ministers have a duty to Parliament to account for the policies and decisions of their department.
 This means that ministers should give accurate information to Parliament and be as open as possible.

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 Section 9 of the Code provides further specific detail on how ministers ought to relate to Parliament
 9.1 MC: “When Parliament is in session, the most important announcements of Government policy should be made in
the first instance, in Parliament

Examples of where parts of the code have been put under pressure as a result of ministerial conduct

Misleading Parliament
The Breach: Esther McVey, MP, Secretary of State for Work and Pensions, told Parliament in July 2018 that the National
Audit Office (NAO) – the body which scrutinises public spending for Parliament – wanted Universal Credit (a new and highly
controversial social security payment system) to be "rolled out faster". The head of the NAO stated that this was incorrect,
as the body had ongoing reservations about Universal Credit. McVey told MPs that she had meant to say the NAO believed
there was "no practical alternative" to continuing with the development of Universal Credit, which rolled six social security
benefits into one.

The consequences: The head of the NAO took the unusual step of writing to McVey to take issue with how she responded to
its report on Universal Credit.
 There were calls for McVey's resignation, for deliberately misleading Parliament.
 She apologised in Parliament for "inadvertently misleading“ it.
 She subsequently resigned from Cabinet for unrelated reasons. (She re-joined Cabinet in a different role for 6 months
before being ‘reshuffled’ off the front bench.)
Conflicts of Interest
The Ministerial Code – general principle 7 – makes it clear that:
o "Ministers must ensure that no conflict of interest arises, or could reasonably be perceived to arise, between their
public duties and their private interests, financial or otherwise".
o "Ministers should not accept a gift or hospitality which might, or might reasonably appear to, compromise their
judgement or place them under an improper obligation"

The breach: Priti Patel MP was forced to resign from Theresa May’s government in November 2017. As International
Development Secretary, she had conducted unofficial meetings with Israeli ministers and business representatives.
 In her response to Patel's resignation letter, the Prime Minister wrote that the UK and Israel were close allies and should
work closely together. “But that must be done formally, and through official channels […] it is right that you have decided
to resign and adhere to the high standards of transparency and openness that you have advocated.”
 This incident clearly also had implications in terms of collective ministerial responsibility.

The consequences: In the next government under Boris Johnson, Priti Patel was appointed Home Secretary.
 She was again accused of having breached the Ministerial Code prior to this appointment, for doing paid strategic
consulting work for a private company without seeking approval from the advisory committee on business appointments
as required by the Code (Prime Minister took no action)
General principle on behaviour
 The 'General Principle' in the Ministerial Code states at paragraph 1.2 that:
o "Ministers should be professional in all their dealings and treat all those with whom they come into contact with
consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary
colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate
or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be
tolerated"

The breach: Michael Fallon MP, Defence Secretary resigned from the May government following allegations of
inappropriate sexual behaviour. This was against the background of allegations of a harassment and bullying culture in
Parliament generally. The consequences: Fallon resigned from Cabinet and remained a Member of Parliament until 2019.
Ministerial behaviour and competence?
 Ministers are in principle responsible for implementing government policy effectively, spending public money
appropriately, and being fully accountable to Parliament for doing so.
 In addition to the expectations created by the convention on individual ministerial responsibility, we now also have a
more tangible Code, against which to assess ministerial conduct
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and competence, falling short of which he or she is expected to resign. There have been numerous accusations against
ministers of incompetence in recent times and going back under previous governments.

CIVIL SERVICE
 The summary of the function of the Civil Service as set out in the Cabinet Manual (2011) is as follows:
o "The civil service supports the government of the day to develop and implement its policies, and in
delivering public services, civil servants are required to carry out their role in accordance with the
values set out in the Civil Service Code and the Constitutional Reform and Governance Act
2010. Central to this is the requirement for political impartiality. Civil servants must act solely
according to the merits of the case and serve governments of different political parties equally well."
 Ministerial Code – general principle 5.1. requires all ministers to uphold the political impartiality of the Civil
Service, and not ask civil servants to act in any way which would conflict the Civil Service Code

Constitutional principles of the civil service

Permanence Political neutrality Anonymity
The civil service does not change This is a requirement of permanence. If Civil servants are not (with some senior
personnel with each new government. the civil service is to remain constant exceptions) public-facing. The Minister,
This creates a pool of people with throughout changes in the political not his or her civil servants, are
specialist skills and experience from character of government, it must politically accountable for the
which ministers can draw. remain politically neutral. department's actions.

Structure of Government Departments

Secretary of State (senior minister and MP appointed by PM)
Special advisers (SPADS): political appointees Permanent secretaries (max 2): most senior civil servant in
department and politically neutral (responsible for
explaining to Parliament how their department has spent
public funds)
Senior Responsible Owners (politically neutral)
Civil servants (politically neutral)

Senior Responsible Owners

 (SROs) are politically neutral senior civil servants personally responsible for the delivery of major government projects.
 The Cabinet Manual states at paragraph 5.6 that:
o "Senior Responsible Owners of the Government’s major projects … are expected to account to Parliament, for
the decisions and actions they have taken to deliver the projects for which they have personal responsibility.
This line of accountability relates to implementation (not policy development)."
 SROs may, therefore, be called to give evidence to Parliamentary Select Committees, together with Permanent
Secretaries / Accounting Officers.

The Civil Service Code

 The Civil Service is subject to a Code of rules and principles in the same way as Ministers, with the fundamental
difference that civil servants (like any other employee) may be dismissed for deceit or incompetence.
 Civil servants are accountable to Ministers, who in turn are accountable (at least in theory) to Parliament.
 The 'core values' of the Civil Service Code are:
o Integrity o Objectivity
o Honesty o Impartiality
 States that civil servants must: "act in a way which deserves and retains the confidence of ministers, while at the same
time ensuring that you will be able to establish the same relationship with those whom you may be required to serve in
some future government".
 This means that it is important for civil servants not to alienate possible future ministers (i.e. senior opposition
politicians) while serving the government of the day.
 The Code is part of the "contractual relationship" between the civil servant and the government department. Breach of
the Code is therefore tantamount to breach of an employment contract.
 Bear in mind that civil servants cannot be dismissed (at least formally) by ministers.

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Accountability to Parliament (Parliamentary Select Committees PSCs)

 One of the mechanisms, by which the executive is held to account by Parliament, is the questioning of civil servants by
Parliamentary Select Committees (PSCs)
 The ultimate responsibility for the implementation of policy lies with the Minister. Giving evidence to PSCs is seen as a
stepping-stone towards seniority in the civil service:
o "A civil servant’s select committee performance has a big influence on their reputation and career
prospects. Former cabinet secretary Lord Gus O’Donnell says: “It is an important test as you become more
senior. When politicians are trying to get a particular angle or get you to say a specific quote, it does require
a degree of training and understanding of how to perform publicly, and that’s part of the skill set of the
modern civil servant
o Former head of the civil service, Lord Bob Kerslake says judgments can be unforgiving: “Appearances are
definitely watched and assessed by ministers and special advisers: you can do 90 minutes perfect and one
small thing that is perceived to be wrong, and that’s what’s remembered.”

Institution of Parliament (Parly)

CONFIGURATION OF PARLIAMENT
 Government sits on the benches to the right of the Speaker, official opposition to the left
 Government ministers and shadow ministers sit on front benches facing each other (‘frontbenchers’)
 Shadow ministers: counterparts from the opposition, including the ‘Opposition Shadow Cabinet;
 MP’s without ministerial (or shadow) role sit near back of Chamber (‘backbenchers’)
 In addition to the PM, the Cabinet and the elected MPs for each political party, important figures include:
o The Speaker of the House o The Leader of the House
o The Deputy Speakers o The Shadow Leader of the House

The Speaker of the House of Commons

 Chief officer and highest authority in the House of Commons (POLITICALLY NEUTRAL BY CONVENTION)
 Remains a Member of Parliament, though resign from their political party – elected by House of Commons
 Their role is to preside over Parliamentary debates: manage which MPs speak and attempt to maintain order
 The Speaker does not normally vote in Parliament, nor ever participate in debates
 Speaker also has a disciplinary function and may punish MPs who do not respect parliamentary rules, including:
o directing an MP to withdraw abusive or denigrating remarks
o suspending the sitting of the House due to serious disorder (very rarely used)
o suspending MPs who are deliberately disobedient (‘naming’)
o ordering MPs to be quiet so others can be heard

The Speaker’s power in debates

 Speaker influence’s but does not control what is debated in Parliament (does control how long it lasts)
 MPs don’t have automatic right to speak – Speaker must balance MPs’ participation,
 In deciding who to call to speak, Speaker will consider:
o the standard practice of calling official spokespeople from Government/Opposition to start/finish debate

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o where some MPs have a specific interest in the topic being debated (constituency link/policy expertise)
o an MP’s seniority and whether they have previously contributed to the debate
o time available for the debate
o the need to protect the rights of parliamentary minorities

Amendments to proposed legislation (Bills)

 Speaker has control over which amendments to bills can be debated/voted upon (leads to accusations of politicalness)
 Speaker can also decide to allow urgent questions or emergency debates
 Will try and maintain impartiality by applying following principles when deciding which amendments can be debated:
o The need to protect parliamentary minorities (Speaker will often allow backbench to table amendments)
o Amendments which are ‘out of order’ will not be debated (e.g. vague, not properly related, submitted late)
o Several related amendments may be debated together to avoid wasting time

Upholding Parliamentary rules

 Speaker is responsible for ensuring correct application of parliamentary rules – rules are called ‘Standing Orders’
 Speaker can make definitive interpretations of parliamentary rules/procedures through ‘Speaker’s rulings’
 Speaker’s role is exercised and governed almost entirely by convention
 MPs can criticise Speaker by putting down a substantive motion for debate – if MPs vote to censure the Speaker’s behaviour, the
Speaker would come under pressure to resign but is not automatically dismissed

The Speaker and political controversy

 Role of Speaker attracted little public attention until the Parliamentary debates relating to Brexit political crisis
 John Bercow MP, Speaker from 2009-Oct 2019 became familiar figure both praised and criticised for his conduct
 In September 2019, he allowed an emergency debate to go ahead which paved way for backbench MPs to take control of
Parliamentary timetable, passing legislation requiring the government to seek a time extension for leaving the EU in order to avoid a
‘no deal Brexit’ – this was controversial and unprecedented use of emergency debate procedure

The Deputy Speaker

 House of Commons elects three Deputy Speakers – principal DS = “Chairman of Ways and Means”
 Principal DS is elected from opposite side of House of Commons to Speaker and has four roles distinct from him:
1. Supervision of arrangements for sittings in Westminster Hall
2. General oversight of matters connected with private bills
3. Chair of the Panel of Chairs with general responsibility for the work of general committees
4. Presiding over the annual Budget debate (by convention)
 Other deputy speakers – First and Second Deputy Chairman of Ways and Means
 Unlike Speaker, deputy speakers do not resign from their parties, but they do withdraw from any active political roles

The Leader of the House of Commons

 Leader of HoC = government minister – main responsibility = organise government business in the House, consists of:
o Scheduling business (e.g. bills for debate)
o Chairing the Parliamentary Business and Legislation Committee
o Deputising for the Prime Minister in some circumstances (if Deputy PM/First Secretary of State is not available)
 Leader works closely with Chief Whip (Parliamentary Secretary to the Treasury)

Shadow Leader of House

 Member of the Official Opposition Shadow Cabinet – responsible for working with Leader of House
 Through the Shadow Leader, the opposition can hold the government to account in how it manages HoC business

Whips
 MPs/Lords appointed by each Party in Parliament to manage their party’s contribution to parliamentary business
 One of whips’ key responsibilities = making sure maximum number of their party members participate in voting
 In addition to shaping their party’s contribution to business of both Houses of Parliament, they are responsible for:
o Counting votes and arranging the business of Parliament (the “usual channels”)
 Whips send out a weekly circular (called ‘The Whip’) to their MPs/Lords detailing upcoming parliamentary business
 Special attention is paid to divisions (where MPs vote on debates) Important divisions underlined 3 times (3 line whip)
 Defying a three-line whip = a serious transgression and has sometimes resulted in the whip being ‘withdrawn’ from an MP/Lord,
meaning the Member is expelled from their political party (keeps seat in their constituency) and must sit as Independent MP until
the whip is restored

Prominent figures in the House of Lords

 House of Lords has broadly equivalent figures to those in the House of Commons:

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oThe Lord Speaker chairs daily business and gives procedural advice and assistance
oSenior Deputy Speaker deputises for the Lord Speaker
oThe Leader of the House of Lords = a Minister (member of Cabinet) and is most senior representative and leads a team of
around 25 ministers and whips in the Lords
o “Black Rod” = senior officer in House of Lords responsible for maintaining order in the House and its precincts
 Black Rod plays a prominent role in the state opening of Parliament – he is sent from the Lords to summon the Commons to hear
the Queen’s speech; the doors of the Chamber are traditionally slammed in his face; to symbolise the independence of the
Commons – he knocks on door 3 times, which it is opened, MPs follow to Lords to hear Queen

WORKINGS OF PARLIAMENT
 The rules governing the business of the HoC derive from three main source:
1. ‘Ancient usage’ (i.e. convention)
2. Standing Orders passed by the House following a vote
3. Rulings of the Speaker

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament
 Leading source of guidance on the workings of the HoC – N.B. represents guidance not rules
 Publication is updated as parliamentary procedure and conventions evolve – publication includes for example:
o Recall of MPs Act 2015: allows for a constituency to recall an MP for misconduct in office
E-Petitions: started by gov. in 2011, moved to Parliamentary website in 2015, allow for ordinary citizens to raise topics for debate in
Parliament (10,00 signatures and government responds, 100,000 and petition is considered for debate in Parliament)
Rules
 Parliament’s procedural rules = not binding but respected by all parliamentarians
 Regarded as presumptions to which members voluntarily acquiesce (qtd. Loveland)
 Key presumption: government business takes precedence in the parliamentary timetable
 This is reflected in ‘Standing Order 14’ which states (“So 14.1): “Save as provided in this order, government business shall have
precedence at every sitting”
 This does not have legal force but is the means by which government of the day is able to control business of HoC
 Effectively by consent, but the Commons can vote to disapply SO14, as occurred in March 2019 during protracted ‘Brexit’ debates

Parliamentary sessions
 Each Parliament (elected after a general election) is divided into sessions. These usually last around a year, though some can last
longer, notably the session from 2017-19.
 Each session of Parliament begins with the 'Queen's Speech' (written by government, setting out its legislative agenda).
 According to Loveland, in recent years parliamentary time has been divided roughly as follows:
o 30-35% - Government bills
o 15-17% - Government general debates
o 7-8% - Opposition general debates
o 8-10% - backbenchers’ bills and motions
8-10% - questions to Ministers
Resolving procedural disputes
 Resolving disputes about parliamentary procedure = Speaker's most important roles – may intervene, if, for example:
o Whips from opposing parties cannot reach agreement on procedure
o Backbenchers feel their concerns are not getting enough parliamentary time
Remember that the Speaker is an elected and politically neutral member of the House of Commons. This office has generally been
alternated between members of the two main political parties in recent times.
Daily Business of Parliament
 By custom, sittings in both Houses of Parliament begin with the saying of prayers. Attendance by MPs is voluntary.
 Question time (Mondays to Thursdays, for 1hr): A government minister answers questions put to their department by MPs. At least
three days' notice of questions must be given; the questions are then printed in the Order Paper for that day. Questions may also be
put to Ministers in writing and answered in writing.
Prime Minister's Question Time (House of Commons every Wednesday when Parliament is sitting, 12-12:30). The subject matter of
questions do not need to be notified in advance. By convention, MPs 'table' (i.e. give notification of) a question about the PM's
engagements. The PM therefore does not know exactly what questions will be asked.
Urgent questions
 MPs can make a request to the Speaker for an Urgent Question to be put if he wants to ask MP time pressured
 The Speaker will grant the application if satisfied that the question is indeed urgent, and of public importance.
 The government minister concerned must come to the Commons to explain the government's position on the issue in question.
Ministerial statements
 If there is something urgent that the government needs to bring to the attention of the HoC, the relevant Minister may make an oral

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statement to the House. This process is used after, for example, a major public incident.
 Ministerial statements are made after Oral Questions and any Urgent Questions. MPs then have the opportunity to ask the Minister
questions. These are not tabled in advance; the order of questions is determined by the Speaker.
Ministerial statements to Parliament may also be made in writing. These address more prosaic aspects of government business, for
example the publication of reports by government agencies, and detailed financial information.
Debates
Debates in both Houses of Parliament are formalised discussions of proposals, for example for the reading of proposed legislation (Bills),
or for the government to take action on a particular issue. The process of a debate is as follows:
1. MP or Lord "moves a motion" 4. MPs/Lords vote by calling out “Aye” or “No”
2. (Lord) Speaker puts a question to the House in the terms of the motion 5. If there is no clear result, a division is called
3. MPs/Lords take turns to speak on the question
Divisions
 If Speaker (or Lord Speaker) cannot determine a clear result from hearing MPs (or Lords) shout "Aye" or "No" following a debate,
they will call a division – members register their vote by walking into two different corridors on either side of their respective
Chambers. These are called 'division lobbies' – called ‘Aye’/’No’ lobbies in Commons, ‘Contents’/’No Contents’ lobbies in the Lords –
members counted and names recorded as they pass through the lobbies
 Information as to how individual members have voted is available to the public the following day
Hansard
 The name given to the transcripts of parliamentary debates, as well as the record of written questions and answers.
 It also lists how members have voted in divisions. By convention, because the accuracy of the record is so important, if an MP makes
an erroneous statement which is then recorded in Hansard, they must ensure that it is corrected.
 The rule in Pepper v Hart [1991]: Clear ministerial statements in Hansard may be referred to in court in order to construe
legislation only if the wording of the legislation is ambiguous, obscure, or its literal meaning is absurd. It will also not be met if the
statement recorded in Hansard was not made by a minister or other relevant promoter of the Bill
Committees
 Parliamentary committees play an important role as scrutineers of government work and legislative proposals
 They work in both the Commons and the Lords. Two main types of committees:
o Select committees: scrutinise many different areas of government activity and conduct (permanent membership)
o Legislative committees scrutinise proposals for specific pieces of legislation, including delegated legislation and private bills. The
most common form is a Public Bill Committee
PARLIAMENTARY LEGITIMACY AND PRIVLEGE
 Parliamentary legitimacy = based on idea that Parliament has received a democratic mandate from the
citizens who voted for its members (MPs), and therefore that Parliament is accountable to the people.

The House of Commons

 Members of Parliament sitting in HoC are democratically elected (every citizen’s vote carries same weight)
 In order to have a realistic prospect of winning a seat in Parliament, a prospective MP needs to be a member of one of the major
political parties. That is not to say that members of smaller political parties never get elected – but it is very rare in the UK’s ‘first
past the post’ electoral system
 It is also possible to run as an independent candidate, but few do, and there are even fewer successes.
 The pool of candidates is therefore very largely limited to people who are willing and able to join a political party and satisfy their
criteria for selection as a candidate. The consequence is that Parliament is not particularly representative of the population overall.
Disciplining MPs
 Speaker has power over MP’s conduct in the Chamber of the House of Commons
 MPs' conduct outside the Chamber also has an impact on the perceived legitimacy of Parliament – an MP convicted of a criminal
offence, for example, is unlikely to be seen as a suitable representative of the people:
o An MP who is arrested on suspicion of a criminal offence need not inform the Speaker, only if it doesn’t affect their attendance
in Parliament.
o In the case of an MP who is convicted but released on bail pending appeal, or fined, the judge or magistrate does not need to
inform the Speaker.
o If an MP is convicted/sentenced to imprisonment of any length of time, the judge/magistrate will inform the Speaker by letter.
o If an MP is sentenced to over a year in prison, they are disqualified from sitting/voting in the HoC or its committees.
House of Commons Code of Conduct
 Code of Conduct for Members of Parliament is to "[ensure] public confidence in the standards expected of all Members and in the
commitment of the House to upholding these rules".
 The Code states that it applies to Members in "all aspects of their public life" but not in their "purely private or personal lives".
 First Rule of Conduct is that: "Members shall base their conduct on a consideration of the public interest, avoid conflict between
personal interest and the public interest, and resolve any conflict between the two, at once, and in favour of the public interest".
 Breaches of the Code of Conduct are investigated by the Parliamentary Committee on Standards and may result (in very serious
cases) in expulsion from the House.

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Expulsion from the House

 Expulsion from the House is the most serious form of punishment that the HoC has power to impose. A motion is moved, usually by
the Leader of the House, "that [name of MP] be expelled from this House" – reserved for serious crimes/perjury/fraud/corruption.
 In 1976, John Stonehouse, Labour MP for Walsall South, was expelled from the House after serious financial problems caused him to
flee the UK on a deceased constituent's passport. In Miami, he faked his own suicide by drowning, leaving his clothes on the beach.
Caught by the police in December 1975 and sent to Brixton prison, from where he continued to serve as an MP for several months.
 The Committee on Standards has no power to expel an MP. However, its recommendations for expulsion are likely to be followed.
MP’s expenses scandal
 In addition to their basic salaries, MPs receive expenses for accommodation, travelling between London and their constituencies,
and running an office.
 In 2009, following a Freedom of Information request, legal proceedings, and a leak to the media, a major political scandal erupted in
relation to the amount and nature of expenses claimed by some MPs.
 One of the most memorable claims was by Sir Peter Viggers, Conservative MP for Gosport, for a floating duck house costing £1,600.
 The majority of claims related to MPs' 'second homes' in London. Some MPs were claiming expenses for a second home (ostensibly
to be nearer to Parliament), but not using them and instead renting them out. An investigative panel was established to look into
claims for second homes.
 Criminal charges of false accounting were brought against four parliamentarians, all of whom were imprisoned. MPs made voluntary
repayments of approximately £500,000.
Independent Parliamentary Standards Authority (IPSA)
 The IPSA (set up in 2010) – responsible for the regulation and payment of expenses to Members of the House of Commons.
 The business costs and expenses claimed by each MP are now publicly available on the IPSA website.
 MPs are also required to declare their financial interests in the Register of Members' Financial Interests, to ensure transparency
about any interests which "others might reasonably consider to influence his or her actions or words as a Member of Parliament".
Parliamentary Committee on Standards
The Parliamentary Committee on Standards took its current form in 2012. Its remit includes the following:
 Oversee the work of the Parliamentary Commissioner for Standards
 Examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of
Members' Financial Interests and any other registers of interest established by the House
 Consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of
Conduct which have been drawn to the Committee's attention by the Commissioner
 Recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.
Parliamentary Commissioner for Standards (PCS) (makes the initial investigation over ^)
 PCS in the House of Commons is an independent officer of the House, supported by an office. Their role is to:
o provide advice
o to investigate allegations that MPs have broken their Code of Conduct
o to decide complaints from the parliamentary community about harassment, bullying or sexual harassment by MPs
o to keep the MPs’ Code of Conduct under review
o to keep the Register of Members’ Financial Interests
 The Commissioner cannot investigate ministers' conduct in their ministerial role, or members of the House of Lords. Nor can they
investigate constituents’ complaints about MPs. Complaints about MPs expenses are dealt with by the IPSA, not the Commissioner
for Standards

Powers of the PCS

 Initial decisions on whether an MP has breached the Code of Conduct or any associated rules is first taken by the Commissioner. The
Committee then investigates and may agree with the Commissioner in full, in part, or not at all. The Committee's powers are to:
- Order copies of relevant papers and records, and specific documents
- Order the attendance of any MP
- Decide whether to hear evidence in public or private
 If a breach is proved, the Committee may decide that an adverse report on the MP concerned is sufficient. If not, it may recommend:
- That the MP apologise, either in writing or in person in the House
- Suspension from the service of the House for a specified number of sitting days (during this time the MP receives no salary and
must not enter the precincts of the House.)
- In very serious cases only, expulsion from the House.
Legitimacy of the House of Lords
 Members of the House of Lords are not elected by the people. Nowadays, the majority are appointed - nominally by the Queen but,
in fact, on the advice of the Prime Minister. Some non-party political members are recommended by the House of Lords
Appointments Commission, an independent body established in 2000.
 There are also some remaining hereditary peers sitting in the Lords (reduced to 92 following reforms - the House of Lords Act 1999)
 The democratic legitimacy of the House of Lords has been and continues to be called into question - perhaps less frequently by
ordinary citizens than by the government when the Lords get in its way.
 E.g. May 2018, the government criticised the House of Lords for passing an amendment to the EU Withdrawal Bill which allowed

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Parliament a veto to avoid a ‘no-deal Brexit’.

 The House of Lords does act as an important check on the actions of the government, however, as its members are arguably less
susceptible to career considerations and pressure from their political party (if any) than MPs.

Lords’ (mis)conduct
 As in the House of Commons, there is a Code of Conduct for members of the House of Lords. It covers very similar considerations,
including personal behaviour and financial and business interests. The Code of Conduct is enforced by the House of Lords
Commissioner for Standards.
 Investigations are usually commenced as a result of a complaint about the conduct of a member. The Commissioner will investigate
if the matter is within their remit, for example: Failure to register relevant interests or breach of the rules on financial inducements
 Matters outside the remit of the Commissioner include:
o Policy matters or a member's views
o Members' non-parliamentary activities
o Members' conduct in their ministerial capacity
 A member who is imprisoned for over a year ceases to be a member of the House.
 Sanctions include: Suspension from the House/Denial of access to financial support/Expulsion (very serious cases only)

Parliamentary Privilege
 PP = the range of freedoms and protections that both Houses require in order to function effectively. In summary, it consists of:
 The right of each House to control its own proceedings and precincts: e.g. when the House of Lords Commissioner for Standards
investigates a misconduct complaint, the evidence (e.g. relevant documents) becomes subject to parliamentary privilege and must
remain confidential until released by the Commissioner.
 The right of those participating in parliamentary proceedings to speak freely without fear of legal liability: Article 9 of the Bill of
Rights 1689 provides that proceedings in Parliament are not to be "impeached or questioned in any court or place out of
Parliament”. This privilege continues to this day. An example of its application is the ability of MPs to make what would otherwise be
defamatory comments during a debate in the House, without risk of legal liability.
“Proceedings in Parliament”
 Meaning of "proceedings in Parliament" (originating from Art9 of the Bill of Rights 1689) has been subject to judicial consideration.
 General principle = the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in
performance of its legislative functions and protection of established privileges. However, the courts will not allow misuse of the
privilege.
 R v Chaytor & Ors (2010): the Supreme Court held that expenses claims by MPs did not qualify for the protection of privilege, which
would otherwise have allowed them to avoid a trial for false accounting. Expenses claims were not considered to be part of the core
or essential business of Parliament.
Freedom from arrest
 The ancient privilege of freedom from arrest applies to members of both Houses. Members may not be arrested without order or
sentence of the House, except on a criminal charge or for a criminal contempt of court.
 There remain today very few arrestable civil offences, and the Joint Committee on Parliamentary Privilege has recommended that
members' freedom from arrest in civil cases should be abolished.
 The privilege has current practical application in that it exempts members from summons as a witness in court. Members may,
however, choose to attend court voluntarily even when Parliament is sitting.

PARLIAMENTARY SCRUTINY

Parliamentary committees
 There are two broad types of committee in Parliament:
o Select committees: longer-term membership, scrutinise governmental activities and polices
o Legislative committees (usually Public Bill committees): scrutinise individual pieces of proposed legislation.
Within the first category, there are select committees operating in both the Commons/Lords, though there is a difference in emphasis in
the approach and subject matter dealt with in each.
House of Commons Select Committees House of Lords Select Committees
Focus on scrutinising government departments Concentrate on broader more thematic scrutiny, areas include:
Each department of state is shadowed by a separate select Europe, science/technology, economics, communication, the UK
committee, scrutinising its work constitution, and international relations
Select Committees
 Key mechanism by which Parliament holds the government to account – consist of MPs, Lords, or 'Joint Committees' = both
 Most select committees are established under Standing Orders (parliamentary rules), meaning that they are permanent entities
although their membership will change with a change of parliament.
 Select committees are appointed by the House to perform a variety of tasks on the House's behalf, including scrutinising the work of
all government departments and examining expenditure, procedures, and domestic administration of the House. Committees

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determine the subjects into which they will inquire, and they have extensive powers to gather evidence, both written and oral. Their
findings and recommendations are submitted to the House and published as reports.
 The modern system of select committees was established relatively recently, in 1979. It has equivalents in many other parliaments
across the globe.
 BY CONVENTION, MINISTERS AND OPPOSITION FRONTBENCHERS ARE NOT SELECTED TO BE ON COMMITTEES
Why does Parliament need select committees?
 Provide Parliament with a way of increasing its capacity to scrutinise the government away from the Commons chamber
 Select committees are cross-party (including MPs and/or Lords from both sides of the House).
 There is not enough sitting time for MPs to scrutinise fully, and for the government to provide answers on, every important policy or
piece of legislation. The Lords, who have comparatively more time, are able to focus expertise on key political areas.
Select Committee Membership
The Institute for Government considers that the identity of the select committee Chair "determines its impact more than any other
factor" (White H, 2015). Party whips play no part in Select Committee appointments
Commons select committees Lords select committees
 Most committee Chairs are elected by their fellow MPs  Chairs appointed by the House on the proposal of the
 Minimum 11 members, selected by internal party election Committee of Selection
 Membership reflects the party-political balance of the House  Members usually proposed by Committee of Selection, and
voted on by the House
 No fixed number of members and no rule on political balance
Scrutiny of government
 Select committee reports (which frequently criticise the government's policies/actions/or inaction) cannot simply be ignored. The
government is committed to replying to every select committee report within 60 days of its publication.
 Select committees can influence the direction of government by:
o Writing reports for the House
o Attracting media attention to a political issue – this is increasingly important

o Encouraging ministers to engage properly with an issue, knowing that they will be called to give evidence to a select
committee meeting
House of Commons select committees examples
Public Accounts Committee Transport Committee Committee on Standards
Scrutinises the economy, efficiency and Examines the expenditure, administration Oversees the work of the independent
effectiveness of public spending and holds and policy of the Department for Transport Parliamentary Commissioner for Standards
the government and its civil servants to and its associated public bodies. on, for example, MPs’ Register of Interests,
account for the delivery of public services. conduct etc.
House of Lords select committees examples
Constitution Committee Intergenerational Fairness and Provisions Gambling Industry Committee
Committee
Examines all public bills for constitutional Set up in March 2019 to consider the Set up in June 2019 to consider the social
implications and investigates broad impacts of current government policy on and economic impacts of the gambling
constitutional issues. future generations industry (e.g. online casinos).
Joint select committees
There are four joint select committees (with members from both Houses):
1. The Joint Committee on Human Rights: considers human rights issues in the UK.
2. The Joint Committee for National Security Strategy: scrutinises the structures for governmental decision-making on national
security, particularly the role of the National Security Council and the National Security Adviser.
3. The Joint Committee on Statutory Instruments: appointed to consider statutory instruments made in exercise of powers granted by
Act of Parliament. Instruments not laid before Parliament are included within the Committee’s remit.
4. The Joint Committee on Consolidation Bills: considers Bills which bring together a number of existing Acts of Parliament on the
same subject into one Act without amending the law, although they occasionally contain minor corrections and improvements
Select committee powers to call evidence
 House of Commons select committees are given powers by the House to 'send for persons, papers and records', meaning they have
the power to summon and examine witnesses.
 If any witness who has been summoned to appear before a select committee refuses to attend, the fact is reported to the House and
an order made for his attendance at the bar to be admonished by the Speaker (Erskine May's Parliamentary Practice)
 N.B. civil servants, Ministers, MPs and Lords cannot be summonsed in this way.
 Usually, witnesses attend willingly. If they do not, the Select Committee may issue a summons. If ignored – a warrant may be issued.
Who gives evidence to select committees?
 Principal role of select committees is to scrutinise government. Ministers and civil servants will frequently appear before
departmental select committees.
 On occasion, in the event of a crisis or issue which is in some way linked to a failure of government oversight, senior company
employees may be asked to give evidence.

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 For example, in 2018 Mark Zuckerberg, Facebook CEO, was asked to give evidence to an 'international grand committee' of
parliamentary select committees as part of the UK Department of Culture Media and Sport's ongoing investigation into online
disinformation, 'fake news' and links to interference in the Brexit referendum. Mr Zuckerberg declined several invitations to attend,
sending company employees in his place.

PASSAGE OF LEGISLATION

Getting a bill to Parliament

 A bill is a proposal for new legislation (an Act of Parliament), or a proposal to change an existing law, presented for debate before
Parliament. Acts of Parliament are known as primary legislation.
 The proposed wording of the legislation is given to Parliament to consider in full.
 A bill can be proposed to Parliament in the following ways:
• Proposed by Government
• Proposed by MP (Private Member’s bill)
• Proposed by member of Lords (Private Peer's bill)
Bills proposed by the Government
 If a particular government department has a proposal for a bill, it must submit a bid for that bill to the Parliamentary Business and
Legislation Committee (PBLC) of the Cabinet, chaired by the Leader of the House of Commons.
 The PBLC decides which bills will proceed to Parliament, taking into account a number of factors, including:

o Is legislation needed, or can a similar outcome be achieved without it?

o Does it support the government's political priorities?
o Has the proposed bill been published in draft form for consultation?
 About a month before the beginning of a parliamentary session, the PBLC will finalise the Government's legislative agenda

Different process for secondary legislation

 Secondary legislation is made under powers granted to the relevant Secretary of State in primary legislation (SI’s usually)
 Not all secondary legislation is put to Parliament for consideration. Depends on the procedure mandated by the primary legislation:
 Affirmative resolution procedure: SIs must be debated and approved by both Houses of Parliament.
 Negative resolution procedure: An SI does not need active approval by Parliament. It will automatically become law unless either
House passes a motion to reject it (usually within 40 days).
 Before being put before Parliament, the Joint Committee on Statutory Instruments scrutinises the government's secondary
legislation to make sure it is clear and within the powers granted by the primary legislation.
Bills starting in the Commons
 Most proposed primary legislation can start either in the Commons or the Lords but will need the approval of both Houses. (The
only exception to this is if the Parliament Act procedure is used, in which case it is possible to bypass the Lords.)
 For bills introduced by the government, the decision whether to start in the Commons or the Lords is made by the PBLC with a view
to ensuring a balanced programme of legislation in each House. By convention, bills on constitutional matters start in the Commons.
 Initial Stages of a Bill: First Reading  Second Reading  Committee Stage
First and Second Readings
 The First Reading = formality (no debate on Bill)
 The Second Reading = debate on the main principles of the bill, held in the chamber.
 A Government minister will open the debate by setting out the case for the bill and explaining its provisions.
 The Opposition will respond and then other members are free to discuss it. The Government will close the debate by responding to
the points made. No amendments can be made to the text of the bill at this stage, although members may give an idea of the
changes they will be proposing at later stages.
 At the end of the debate the House will vote on the bill. If the vote is lost by the Government, the bill cannot proceed any further,
though it is rare for a Government bill to be defeated at this stage.
Committee Stage
 This stage involves a detailed consideration of the bill.
 In the Commons, this can be done in the chamber, or by a specially convened committee of MPs called a Public Bill Committee
 In the Lords, the detailed reading may also be done in the chamber, or outside it. Any peer can participate in this.
 A Public Bill Committee in the Commons can:
o Take oral and written evidence about the subject matter of the bill
o Propose amendments
o Propose wholly new clauses
 Amendments will need the approval of the PBLC before going on to the next stage
Report stage and third reading
 In both Houses, the report stage takes place in the chamber. Only amendments proposed at committee stage are discussed.
 In the Commons, the third reading takes place immediately after the Report. No amendments can be made at this stage. In the

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Lords, third readings take place later, and amendments can be tabled.
Final stages
 Both Houses must agree on the text of a bill before it can become an Act – if the bill is amended in the second House, it must return
to the first House for those amendments to be considered. The first House can reject the amendments, make changes to them or
suggest alternatives. A bill may move backwards/forwards between the two Houses before agreement is reached (“ping pong”)
 The time taken to go through all these stages depends on the length of the bill, how controversial it is and whether it needs to be
passed particularly quickly. An emergency bill may be passed in a matter of days, whereas a larger bill may be introduced at the
beginning of the session and only passed at the end a year later.
Royal Assent
 In order for a bill to become law after it has passed both Houses after third reading, Royal Assent is also required. The Queen's
agreement to give her assent to a bill is a formality. By convention, the monarch does not refuse assent (legally entitled to though)
 When RA given, an announcement is made in both Houses – by the Lord Speaker in the Lords and the Speaker in the Commons.
 The legislation may then come into force immediately, or after a period of time specified in the legislation, or on a later date
following a 'commencement order' by the minister. A commencement order is designed to bring into force the whole or part of an
Act of Parliament at a date later than the date of the Royal Assent.
Private Members’ Bills (PMBs)
 These are proposals for primary legislation introduced by MPs and Lords who are not government Ministers.
 Like public bills, Private Members' bills can be introduced in either House and must go through the same set stages. However, as less
time is allocated to these bills, it is less likely in practice that they will proceed through all the stages.
 In the Commons, Private Members' bills have precedence over government business on 1 Fridays in each parliamentary session.
 Private members' bills have on occasion made very significant changes to the law. Examples include:
 The Murder (Abolition of the Death Penalty) Act 1965 was introduced as a PMB by Sydney Silverman M.P.
 The Abortion Act 1967 was introduced as a PMB by David Steel M.P. but was then backed by the government.
 The Sustainable Communities Act 2007 introduced legislation intended to help reverse the trend of community decline, also called
'Ghost Town Britain'.
Parliament Acts 1911 and 1949
 Sometimes it is possible for a public bill to be passed on the basis of a procedure first introduced in the Parliament Act 1911.
 This initially allowed a bill being sponsored by the government to be sent for Royal Assent without the approval of the House of
Lords, if the Lords refused to consent to it for a period of two years (further reduced to one year through the Parliament Act 1949)
 The reason for this procedure being introduced in 1911 was because of the collapse of a long-standing convention, under which the
House of Lords did not block financial legislation ("money bills"). This happened following a radical budget introduced by Lloyd
George in 1909, which was strongly rejected by the Lords. After two years of constitutional crisis the Liberal government of the day
decided to legislate to formally reduce the delaying powers of the House of Lords.
 Use of the Parliament Act procedure has been quite sparing over time. It has only been called upon seven times in total, the last
being in 2004 with the Hunting Act. This use of the procedure was particularly notable as it led to a challenge to the legality of the
Hunting Act itself in the case of R (Jackson) v Attorney-General (2005)

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The Separation of Powers (Septum)

OVERVIEW
 Widely acknowledged that concentration of all state power in same hands leads to inefficient government
 Lord Acton: “Power tends to corrupt; absolute power corrupts absolutely”
 Constitutional theorists argue that, for a constitution to be 'efficient'/'well arranged', the three branches of
state – the judiciary, executive and legislature –should be separated into different bodies or persons.
 This theory has deep roots in ancient political theory (Aristotle) and was given more modern expression by the
18th century French philosopher, Montesquieu
 In practice, this theory varies greatly between different states and different political cultures tend to have
differing perspectives on the degree to which the theory can and should be implemented
 Country most associated with the ideal = the US – complete separation (doesn’t allow simultaneous
membership of government and Congress, thereby establishing a very notable ‘check/balance’)
 Same as French – provides for a directly elected President as head of state
 Most modern democratic nations have a form of government which depends on the support and confidence
of the legislature, selected through general elections, as in the UK
 Degree to which the UK conforms to any model of separation of powers is a controversial question
 Product of the organic development of the UK’s constitution (never been subject to planned design)
 Also a product of the UK’s continued attachment to the principle of parliamentary sovereignty
 Unlike the USA, where each body of state is seen as “co-equal”, the UK’s attachment to parliamentary
sovereignty means that there is no equal balance of power in the first place
 UK courts do not have power to invalidate/’quash’ primary legislation if this is deemed unconstitutional
 Unlike US and other modern democracies, the Supreme Court is not a constitutional court in this sense of
being able to review primary legislation for compliance with constitutional fundamentals
 Unique context of UK’s constitutional development has meant that there are a number of issues and
discussion points:
o Institutional overlaps: significant overlaps between all three bodies
o Judicial Role: To what extent, if at all, can the judiciary ‘make’ law?

SEPARATION OF POWERS: THE EXECUTIVE

 Intra-parliamentary forms of scrutiny (from responsible government week) can assist to a degree in holding
the executive to account – now need to consider the broader institutional picture in which the balance of
power and responsibilities between executive and legislature can be assessed

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What is the Executive?

"Executive functions are incapable of comprehensive definition, for they are merely the residue of functions of government
after legislative and judicial functions have been taken away. They may, however, be said to entail the formulation or
application of general policy in relation to particular situations or cases, or the making or execution of individual
discretionary decisions […] More specifically, they include the execution of law and policy, the maintenance of public order,
the management of Crown property, the direction of foreign policy, the conduct of military operations, and the provision,
regulation, financing or supervision of such services as education, public health, transport and national insurance."
(Halsbury's Laws of England, Vol 20 Chapter 1 (1) paragraph 10).

A fusion of powers?
 UK: traditionally been a large degree of overlap in terms of personnel/functions between different branches of state.
 Walter Bagehot (The English Constitution 1867) and others identified this as being a result of the UK constitution being a
parliamentary, as opposed to a presidential, system.
 In a parliamentary system, the legislature selects and contains the political part of the executive branch, which is then
ultimately dependent on the legislature for its position and power. For this reason, parliamentary systems are often seen
to create a fusion of powers rather than a separation of powers.
 Many commentators have warned of the potential dangers of such fusion, particularly given the traditionally strong
degree of control exercised by the political parties over their MPs, through the whipping system, and the general
tendency since 1945 for governing parties to enjoy large parliamentary majorities in a 'first past the post' electoral
system.
Hung Parliaments
In their analysis of the 'UK's Changing Democracy' (2018) Artemis Photiadou and Patrick Dunleavy made an important
observation about new developments in the political landscape since 2010:
"The Conservative–Liberal Democrat coalition government of 2010–15 would be joined by up to five years of a Tory minority
government sustained in office by a ‘confidence and supply’ agreement with the Democratic Unionist Party (DUP) […] In
between these supposedly ‘unusual’ peacetime conditions, there would be only a single year’s inter-regnum (2015–16) when
the Cameron government had a small but clear overall majority and operated on the traditional pattern. There was also a
further year of Tory majority government under May [before the 2017 general election], but it was marked by a good deal of
post-Brexit Leaver–Remain conflicts that made her parliamentary situation very weak. … All of this might make the
‘Westminster system’ of disproportional elections producing ‘strong’ majority governments, and the associated ‘British
political tradition’ look more suspect than ever before."
One should note, however, that the start of the new decade has seen another reversion to the more familiar pattern, as the
Johnson government holds an 80 plus majority after the December 2019 election.
Overlapping roles
 Regardless of whether the government of the day has a functioning majority, it remains the case that political roles in
government, (i.e. at ministerial level), and in Parliament do overlap
 The relationship between the executive and the legislature can be described as a system of 'checks and balances’ but
whether the balance has fallen in the most favourable position is very much open to debate
o Senior government ministers are, by convention, also Members of Parliament.
o Parliament, through the enactment of primary legislation, confers powers on the government.
Legislative Functions of the Executive
 Most significant functional overlap: the executive’s ability to create secondary legislation (in shape of ‘parent’ act)
 Primary legislation: Contains provisions giving the executive power to make secondary legislation
 Secondary/subordinate/delegated legislation: takes form of rules/orders/regulations largely created as SIs
 Approximately 3,500 SIs made annually, varying in length from one to several hundred pages
 SI’s contain the relevant Secretary of State’s further rules on the specific area identified in ‘parent’ Act
 Primary legislation – identify powers it gives the executive = “the Secretary of State may/shall by orders make….”
Henry VIII clauses
 Henry VII clauses = clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using
secondary legislation – controversial powers as have effect of enhancing executive power over making of laws with very
little parliamentary scrutiny (named after Henry VIII, who, by the Statute of Proclamations 1539, gave himself power to
make law by royal proclamation
 In context of Brexit: The EU Withdrawal Act 2018 provides that laws and regulation made over more than 45 years,
while the UK was a member of the EU, will continue to apply now that the UK has left the European Union. This
'retained EU law' will require further amendment because many of the laws mention EU institutions in which the UK will

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no longer participate, or mention EU law itself, which will no longer be part of the UK legal system. They may also
contain law that a future government wants to repeal for political reasons.
 Therefore, the Act gives ministers so-called ‘Henry VIII powers’ to make changes to both primary and secondary
legislation using statutory instruments (can get onto the statute book quicker, as subject to less parliamentary scrutiny)
Parliamentary control over Subordinate legislation
There are three ‘levels of delegation’ which determine the level of scrutiny given to delegated legislation

No scrutiny Negative instruments Affirmative instruments

Some delegated powers receive no These can become law without a Most important delegations of power
parliamentary scrutiny, e.g. an order to debate or vote in Parliament. They can are subject to affirmative resolution –
close a major road while it is being be opposed and, in theory, rejected but they cannot come into effect until both
developed not amended by Parliament House have approved a draft SI in vote

The concept of ‘vires’: ‘intra’ and ‘ultra’

 ‘Intra vires’: an action or legal provision done within the given power and is therefore lawful
 ‘Ultra vires’: done “outside” the given power and therefore unlawful
 Every delegated/subordinate power must be exercised ‘intra vires’ the power granted
 Usually (but not always) the power is granted by primary legislation
 Ultimately, the Administrative Court decides if the regulation is “intra vires’

Parliamentary committees
 Play a crucial role in scrutinising statutory instruments, even if they do not need to be put before the House
 They make sure that the delegated legislation is within the power of intra vires
 Note: they don’t review the merits of the government policy behind the delegated legislation
1. Delegated Powers and Regulatory Reform Committee (House of Lords): examines delegated powers in primary
legislation to see what powers ministers are asking for (before the primary legislation is debated in Parliament)
2. Merits of Statutory Instruments Committee (House of Lords): examines the secondary legislation which results
from the exercise of those powers
3. Joint Committee on Statutory Instruments: ensures that each SI complies with requirements of ‘parent’ Act
Judicial functions of the executive
 Historically, UK constitution has seen incursions of executive into legislative AND judicial sphere
 Certain aspects of judicial role can/have been exercised by members of executive, most notably in the past by the Home
Secretary – this power derived from both statutory and prerogative sources
 E.g. it was the practice for the Home Secretary to have responsibility for setting tariff sentence for those convicted to be
imprisoned ‘during her Majesty’s pleasure’ (i.e. indefinitely, subject to review) under legislation going back to 1933
 This sentencing power was most often used in relation to young offenders. Following the murder of James Bulger by two
ten-year-old boys in 1993, it was held in R v Home Secretary, ex parte Venables and Thompson(1998) that the Home
Secretary had acted unlawfully in exercising these powers.
 The judicial power of the Home Secretary to set sentencing in these situations was removed in 2000 and is now the
responsibility of the trial judge in accordance with the principle of separation of powers.

Reduction in overlaps
 Until recently, the executive had the power to decide some legal disputes through a network of tribunals that were
funded and administered by the same government departments against whose decisions they heard appeals
 Following the Tribunals, Courts and Enforcement Act 2007, tribunals are now administered as part of the court system
with a new supervisory body known as the Upper Tribunal
 Represents a further ironing-out of some of the more clear-cut overlaps between executive and judicial functions
 Also evident through reforms introduced through the Constitutional Reform Act 2005 (inspired by article 6)
 Article 6 of the European Convention on Human Rights: requires courts/tribunals to be impartial/independent from
executive (incorporated into UK law by the Human Rights Act 1998)
 McGonnell v UK (2000): the trial judge, known as the Bailiff, also played a role in the Guernsey legislative assembly and
so was not deemed sufficiently independent, representing a breach of article 6

Reduction in overlaps: The Lord Chancellor

 The Lord Chancellor is the government minister with responsibility for the administration of justice including the

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administration of the court system – historically this office carried a wide portfolio of responsibilities
 Constitutional Reform Act 2005: role was reorganised to remove overlaps with the office’s legislative/judicial functions
 In relation to Parliament: LC ceased to be Speaker or President of House of Lords in May 2006
 In relation to Judiciary: LC ceased to be head of the Judiciary after April 2006 (office’s powers of judicial appointment
were transferred to the Judicial Appointments Commission)
 Office of LC has retained as an executive Cabinet post – office/underlying department reorganised to reflect new focus
on administration – initially renamed the Department for Constitutional Affairs, further reorganised in May 2007, to
incorporate part of old Home Office function – renamed Ministry of Justice, with position of Lord Chancellor being re-
designed as Lord Chancellor and Secretary of State for Justice
The Attorney General (remains a source of concern in separation of powers terms)
 The Attorney General sits in Cabinet as the chief legal adviser to the government. He/she also has a role in deciding
whether to bring a prosecution in individual cases.
 The nature of this office has given rise to concerns about the possible impact on the doctrine of separation of powers, as
a conflict of interest could arise between the inherent political allegiance of any holder of the office and the wider
constitutional obligation to give independent, impartial legal advice to the government.
 A good example of this was the controversy surrounding the legal advice given to the Blair government by the then
Attorney General, Lord Goldsmith, in the lead-up to the war in Iraq in 2003, which is covered by section 5 of the Chilcot
‘Report of the Iraq Inquiry’ and advice given by Geoffrey Cox in relation to Brexit in 2019
 The Attorney General continues to sit in Cabinet and to advise on legal matters, and the potential for political influence
on governmental legal advice remains…
INDEPENDENCE OF THE JUDICIARY
 While it can be said that there is no strict separation of powers between the executive and the legislature in
the UK’s constitution, the situation is different for the judiciary:
o "Only in one aspect of the constitution can it be said that the doctrine [of the separation of powers]
is strictly adhered to, namely that by virtue of rules of strict law, constitutional conventions, political
practice, and professional tradition, the judiciary is substantially insulated from political influence."
(Halsbury's Laws of England, Vol 20, Chapter 1 (1) para 9).

An independent judiciary – s3 Constitutional Reform Act 2005

(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary
or otherwise to the administration of justice must uphold the continued independence of the judiciary
(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions
through any special access to the judiciary.
(6) The Lord Chancellor must have regard to–
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise their functions
Removed the House of Lords Appellate Committee
 For centuries the highest court in the UK was the House of Lords, regulated as the Appellate Committee in 1876.
o Highest appeal committee part of legislature = clear example of overlap in separation of powers model
 Law lords were allowed to contribute to debate in the chamber of the House of Lords and to vote for or against
legislation which they may ultimately have been responsible for interpreting and applying.
 Judicial function exercised by this part of Parliament ended in 2009 following CRA 2005 established Supreme Court

Established an independent Judicial Appointments Commission

 Prior to CRA, appointments of Judges up to/including High Court were made by Lord Chancellor (no separation of pwrs)
 s6 CRA: provided for setting up an independent Judicial Appointments Commission
 Intended to improve the quality of the administration of justice and enhance public confidence in the judiciary
 Independence of the Commission is ensured by 15 commissioners
 s63: judicial appointments are solely based on merit/good character (includes professional, lay & judicial members)

Judicial pay and tenure

 Judicial security of tenure has been enjoyed since the Act of Settlement 1701
 Seen to be vitally important in protecting judges from politically motivated dismissal by the monarchy/executive.
 Principle has since been re-enacted in:
o s11 Senior Courts Act 1981: for judges in Crown Court, High Court, and Court of Appeal

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o s33 CRA 2005: for justices of the Supreme Court

 Both these Acts state that judges hold office 'during good behaviour' and may only be dismissed by the monarch
following an address presented by both Houses of Parliament. The statutory retirement age for judges is 70. Judges are
paid a salary by the Ministry of Justice, the amount of which is determined by an independent pay review body.
 Judicial officers of other courts, including magistrates, coroners, and tribunal members enjoy less security, and their
independence is protected by convention rather than by law
Political independence of judges
 Full-time judges are disqualified from sitting in the HoC – House of Commons Disqualification Act 1975
 Parliamentary rules provide that Members of the Cabinet and MPs should not criticise the character or motivation of
judges, although this convention is not always respected
 Courts also lack jurisdiction to inquire into proceedings in Parliament – long established principle of “parliamentary
privilege’ is enshrined in Article 9 of the Bill of Rights 1689
Judicial immunity from civil actions
 Judges are immune from legal proceedings for actions that would otherwise be tortious (for example defamation), as
long as the action is done in a judicial capacity in a court of justice, e.g. not immune if commenting to media
 Extent of immunity of magistrates = less than that of other judicial office holders, as magistrates may be liable for acts
outside their jurisdiction (e.g. imposing a sentence they don’t have power to impose) if proved they acted in bad faith
 Sirros v Moore (1975): held that a circuit judge was entitled to immunity from liability in a civil action for damages,
because the acts complained of were done by him acting in his capacity as a judge, in good faith, albeit mistakenly.
 Denning and Ormrod LJ: As a matter of principle every judge of the courts in this land, from the highest to the lowest,
should, when he is acting judicially in the bona fide exercise of his office, be protected against personal actions for
damages, even where he may be mistaken in fact or ignorant in law "
Open Justice
 Trials should be conducted in public, given the importance of justice being seen to be done. Cases should only be heard
'in camera' if a hearing in an open court would defeat the ends of justice or if it is necessary to protect the vulnerable.
 Article 6 of the European Convention on Human Rights (the right to a fair trial) also plays an important role in this
regard.
 Allows for public scrutiny of judicial process as well as a way to enhance public understanding of the justice system
Hearings in Private
 Some hearings are permitted to be conducted in private, in summary, these are:
 Under Civil Procedure Rule 39.2:
o If publicity would defeat the object of the hearing. This ground is commonly used in applications for a freezing
injunction or a search order.
o If it involves matters relating to national security (evidence may also be withheld, under the ‘closed material
procedure').
o If it involves confidential information (including information relating to personal financial matters) and publicity
would damage that confidentiality.
o If a private hearing is necessary to protect the interests of any child.

LAW-MAKING
 “[the constitution] is firmly based on the separation of powers; Parliament makes the laws, the judiciary
interprets them” – Lord Diplock in Duport Steels v Sirs (1980)
 Law in UK derives from both statute and common law: developed by courts, based on core principles
 Judges have made law – the judiciary have built up this body of legal principles in private/public sphere
 In modern world most law is now created by statute but the judiciary’s constitutional responsibility for
interpreting legislation has meant that it has played a notable role in shaping/influencing how law is applied in
this respect as well

Making laws
 Each of the three organs of state in the UK has a role to play in making the laws:
The Executive The Legislature The judiciary
(Government) proposes primary (Parliament) can propose primary Interprets Parliament’s intentions in
legislation to be considered by legislation of its own (via Private making legislation and develops the
Parliament and drafts secondary Members’ bills) and it decides whether common law
legislation executive proposals become law

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‘Judicial Activism’
 Proper role of judiciary = long-standing source of political and constitutional controversy in the UK
 Courts are instrumental in implementation of law through interpretation of statute – this is recognised as the
constitutional responsibility of the judiciary
 BUT: fine line between developing the law and making it – sometimes courts are accused of excessive ‘judicial activism’
Shaw v Shaw wanted to publish a directory of prostitutes. He was advised by his lawyers that publication of the directory would
Director of not amount to a criminal offence. Nevertheless, a conviction of 'conspiracy to corrupt public morals' was ultimately
Public upheld (even though there was no such statutory offence, and such a conviction was unprecedented). The House of
Prosecution Lords held that courts had 'residual power to enforce the supreme and fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare of the state'.
s (1962)
In this case the issue was whether the court could effectively 'create’ a new offence in its capacity as "custos morum"
(keeper of morals) in the absence of specific legislation by Parliament, which had been legislating for over 100 years on
issues of public morality and decency generally?
The court’s justification, which has subsequently been questioned, was that there was a was a long line of case law
establishing that conduct calculated to corrupt public morals (as opposed to the morals of a particular individual) was an
indictable misdemeanour. The court therefore was not 'creating new offences' or making new law; it was applying
existing principles of law to the facts. The absence of a statutory basis for an alleged crime is irrelevant if there is an
established principle of common law giving rise to it. Application of that principle is not 'making new law' but applying
existing law.
Deference
 Effective opposite of 'activism' – represents a more cautious attitude on the part of the courts who may choose to defer
to Parliament by resisting any call to develop the law in a particular area.
 Malone v Metropolitan Police Commissioner [1979]: Malone was charged with handling stolen property. The
prosecution admitted that there had been prior interception of his telephone conversations. Malone sought declarations
against the Metropolitan Police Commissioner ('MPC') to the effect that the police conduct was unlawful.
The Court found for the MPC and held, in summary:
 There was no prohibition on the interception of telephone calls in English law.
 There was no right to privacy in English law. (The European Convention on Human Rights was at that time not
directly enforceable in English law).
 “No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge
deciding a particular case: only Parliament can create such a right." (per Sir Robert Megarry, VC).

Gillick v West Norfolk Health Authority (1986)

This case illustrates two key points about judicial law-making:
1. Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or
common law authority.
2. A feature of common law is that it develops with the changing political and cultural climate.
The court was asked to rule on the question of whether children under 16 could lawfully be given contraception, without the
knowledge of their parents. Held that in some circumstances they could, if minor = sufficiently mature to consent (“Gillick”
competence)
 In other case Denning stated “the common law can, and should, keep pace with the times”
 And Lord Scarman warned against judges “failing to keep the law abreast of the society in which they live and work”

R v R (1992) Marital Rape

 A similar approach to that taken in Gillick can also be seen in this case. This is sometimes cited as an example of 'judicial
activism' because the law lords overturned an apparent, long-standing common law principle that, by virtue of marriage,
a woman consents to sexual intercourse with her husband. R’s case was that he could not accordingly be convicted of
the offence of 'marital rape'.
 The judgment contained a comprehensive review of the authorities on the marital exception to the crime of rape and
considered whether a change of the apparent common law position was appropriate, in the absence of legislation by
Parliament.
 The court considered that it was appropriate:
o "It seems to us that where the common law rule no longer even remotely represents what is the true position of
a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in
the light of any relevant Parliamentary enactment." (per Lord Lane CJ)
 The court went on to conclude that the wording of the relevant enactment could be interpreted in such a way as to

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overturn the existing, archaic common law principle.

Airedale NHS Trust v Bland (1993)

 The quandary faced by the courts in situations where the state of the law is not entirely clear or where legislation has
not yet caught up with new societal or medical developments was well illustrated by this case
 It concerned the application by the family of a young man, Tony Bland, who had suffered serious injury in the 1989
Hillsborough football stadium disaster and had been left in a 'permanent vegetative state’.
 The family applied for a declaration that his medical team could lawfully withdraw treatment and so let him die, given
his prognosis showed no hope of recovery. The declaration was granted by the court at first instance and confirmed by
the Court of Appeal.
 The Official Solicitor's appeal to the House of Lords was eventually dismissed, as it was considered that the issues
involved – namely the best interests of the patient and the established distinction between actions and omissions in the
law on homicide – could legitimately be adjudicated upon by the courts.
 It is notable in this case that the law lords emphasised the desirability of Parliament legislating on novel matters of
policy, given continuing significant technological advances in the medical field:
 "Where a case raises wholly new moral and social issues, in my judgement it is not for the judges to seek to develop
new, all embracing, principles of law in a way which reflects the individual judges' moral stance when society as a
whole is substantially divided on the relevant moral issues.” (per Lord Browne-Wilkinson).
 In this instance the law lords appeared content that they were working from existing principles in relation to the
distinction between acts and omissions. They were ‘allowing nature to take its course’ rather than condoning a positive
act allowing life to be brought to an end. But the issue was a narrow one and one can see a tendency here towards
deference to Parliament on novel and contentious matters.
 “The function of the court in these circumstances is to determine this particular case in accordance with the existing law,
and not seek to develop new law laying down a new regimen". (per Lord Browne-Wilkinson).

Conclusion
 The impression one can take from some of the above cases is that the courts will not feel it right to develop law when
there are insufficient existing common law threads to build principles from.
 They will also be wary of doing so when the matters before them are novel and contentious, especially if they involve
matters that are seen as political or ethical in nature.
 In such situations the courts will generally defer to Parliament, as the elected sovereign body, and therefore the
appropriate forum for the debate and resolution of such matters.
 Opinions very much differ about whether the courts strike the right balance but, even if they do not always do so, the
political wings of the constitution have a fall-back position.

Parliamentary Response
 Parliament (and of course, the government within Parliament) has a form of constitutional safety mechanism potentially
to hand if it considers that the courts have exceeded their authority in making law.
 Statutory law has a higher status than common law and so a legal principle established by the courts can be over-ridden
by Parliament passing legislation
 Parliament, in the words of Professor A.V. Dicey, can 'make or unmake any law whatever'.
Burmah Oil Oil fields in Burma had been destroyed by British forces during the Second World War. The law lords
Company (Burma decided that compensation should be paid to Burmah Oil, on the basis that the destruction was
Trading) Ltd. v equivalent to an act of requisitioning in wartime, for which compensation should be payable.
Lord Advocate Following this judgment, however, Parliament passed the War Damage Act 1965, which exempted the
[1965] Crown from paying compensation for property damage or destruction in war

JUDICIAL SCRUTINY OF THE EXECUTIVE

 The absence of clear delineation in the responsibilities of the three bodies of state in the UK has caused
tension between them – most acute in modern period between the judiciary and executive.
 According to Rule of Law the judiciary are acknowledged guardians but the judiciary is not elected and does
not share an equal place in the constitutional hierarchy to Parliament, and so it is incumbent on judges to
defer where appropriate

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 Dynamics at work = complicated BUT executive = drawn from the sovereign Parliament and in political terms is
more powerful in most situations (other than when government does not have a majority)
 The degree to which the judiciary can control what the various arms of government do in practice is therefore
finely balanced.

Judicial oversight of legislation?

 PRIMARY: Judges in the UK have no power to scrutinise proceedings in Parliament or to ‘review’ primary legislation
 But there is a partial exception:
o If an Act of Parliament is incompatible with the European Convention on Human Rights, the Court may make a
declaration to that effect pursuant to s4 of the Human Rights Act 1998 (but the courts cannot invalidate it)
 SECONDARY: can normally be challenged (potentially ‘quashed’) in the courts
 Judicial Review = the legal mechanism for doing so (carried out by Administrative Court, specialist court within the QBD

Judicial Review
 The purpose of judicial review is twofold:
1. To prevent abuse of power by the executive
2. To uphold individual rights or interests
 If the executive, or any public body exercising a public function, reaches a decision which is wrong in law, the decision
may be 'quashed' - i.e. rendered a nullity - by the Administrative Court
 JR = examines the legality of a decision and not its merits
 Merits are a matter for the executive (or other public body)

The role and status of the courts

 Where the executive ignores or over-rides court orders/decisions, this is viewed by the judiciary, particularly in less
deferential modern times, as a form of disrespect of their constitutional role
 M v Home Office [1994]: a judicial order was made in the High Court stopping the removal of M from the UK. He was an
asylum seeker from Zaire whose application was initially rejected but who had produced new evidence which had not
yet been assessed. The Home Secretary ignored the order and M was deported.
 The case is notable for the subsequent Court of Appeal finding that an order such at this (in the form of an interim
injunction) could legitimately be made against the Crown and that the Home Secretary had been in contempt of court
for ignoring it.
 This reversed the previous position that an injunction could not be made against the Crown. It also symbolised the
important rule of law principle that the Crown, in the form of a government minister, is just as much subject to the law
as ordinary citizens are. A legal order could not be disregarded; only a higher court could overturn it.

Extension of approach in M v Home Office  R (Evans) v Attorney General (2015)

 This case began with a request by a journalist, Rob Evans, under the Freedom of Information Act 2000 (FOIA) for copies
of Prince Charles' correspondence lobbying various government agencies. ('black spider memos' – his handwriting).
 The government departments refused to disclose the letters on the ground that they considered them exempt from
disclosure under the FOIA. However, a court of law, the Upper Tribunal, determined after extensive deliberation that
many of the letters, referred to as 'advocacy correspondence', should be disclosed.
 The Attorney General subsequently issued a certificate, under section 53(2) of the FOIA, effectively overriding the Upper
Tribunal's judicial decision. Evans sought judicial review of the Attorney General's decision to issue the section 53
certificate. The case reached the Supreme Court, which found against the Attorney General.
 The Supreme Court considered that the Attorney General's conduct had "contradicted the fundamental principle that a
court's decision could not be ignored or set aside by anyone, including the executive, and that the executive's actions
were reviewable by the court".

Judges ‘upholding the will of parliament’

 In some situations, the rationale for the court holding the executive legally to account is that it is protecting and
upholding the sovereignty of Parliament in the face of executive encroachment. This was the setting for the judgment of
the Court of Appeal in R v Secretary of State for the Home Department Ex p. Fire Brigades Union (1995)
 The Home Secretary announced his intention not to bring into force a statutory compensation scheme for criminal
injuries, which had been approved by Parliament, but instead to introduce a new 'radically different' tariff scheme,
using his prerogative power. (This is a form of pure executive power, not legitimated by Parliament.)

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 By announcing that the agreed statutory provisions would not be implemented, the Home Secretary had acted
unlawfully. His decision to introduce a new scheme, which was inconsistent with the statutory scheme, when the
statutory provisions remained unrepealed, represented an abuse of his prerogative power and a bypassing of the clear
will of Parliament.

MILLER LITIGATION – R (Miller) v Prime Minister/Cherry v Advocate General (2019)

 Tension between executive and judiciary has been heightened in recent years by two high profile defeats for the
government in relation to cases associated with – but not about – the process of ‘Brexit,’ initiated by Gina Miller
 In 2019 case, the Supreme Court found unanimously that the advice given by the Prime Minister to the Queen in late
August 2019 to prorogue Parliament was unlawful
 It was found firstly that the case was justiciable as it related to the courts’ historic ability to hold the executive to
account for its actions
 The effect of the PM’s advice to prorogue would have meant that, for a highly significant period of around 5 weeks in the
lead-up to the planned exit from the EU at the end of October 2019, Parliament would have been unable to meet either
in session or in any committees
 This was a far longer period of prorogation than normal and ‘no justification for taking action with such an extreme
effect’ had been put before the court.

Significance of ‘Miller 2’
 In her summary of the case, Lady Hale, as UKSC President stated that the prorogation would have had:
o “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its
constitutional functions as a legislature and as the body responsible for the supervision of the executive.”
 The prorogation order was therefore declared void.
 It is notable here how the UKSC saw its role as providing a constitutional safeguard to protect Parliament, the sovereign
body, against an executive over-reaching its authority (and its use of prerogative power).
 In ex p FBU (Fire Brigade Union Case) the Home Secretary had been seen as bypassing the will of Parliament. In Miller 2,
disregard of constitutional norms by the executive was, in the courts’ eyes more acute still, as the effect of its proposals
was to prevent Parliament from carrying out its proper ‘constitutional functions’ at such a significant moment.

Scrutiny of executive decisions

 Where tension arises in particular is when the courts have to decide on challenges involving matters that are at the more
political or ‘high policy’ end of the spectrum – the area of competence of the executive rather than the judiciary.
 In the constitutional sense, however, it is important to distinguish between cases where the courts have to address
challenges on the basic legality of governmental actions and those where the challenges are based on the
reasonableness or rationality of what government does.
 Basic legality of government actions: constitutionally orthodox for the courts to be able to intervene – they are
effectively deciding if the executive had the authority to do what it did.
 Reasonableness/rationality: the balance is much more finely set, and the courts will apply a more deferential approach
accordingly. This relates to the idea of variable intensity of review
 The fine dividing lines are explored below.
"The constitutional status of the judiciary should not, however, excuse the courts from any scrutiny of policy
decisions. Courts are able, and indeed obliged, to require that decisions, even in the realm of “high policy” are within
the scope of the relevant legal power or duty and arrived at by the legal standards of procedural fairness […]
The courts display reserve in impinging upon the substance of policy decisions, but even here they may legitimately
intervene if the decision is devoid of reason and not properly justified. […]
Judges always possess the capacity to probe the evidence and assess whether the reasons and motives for decisions
are rationally related to their aims. As will be shown … public law has rapidly advanced recently from a “culture of
authority” to a “culture of justification”." De Smith's Judicial Review, 8th Ed, Chapter 1

‘GCHQ’
Since 1947, staff employed at the GCHQ communications centre had been permitted to join trade unions. In December 1983
the Prime Minister, with no prior consultation, altered the conditions of service, forbidding membership.
 Council of Civil Service Unions v Minister for the Civil Service (1985): the applicants sought judicial review on the ground
of unfairness due to failure to consult. As will be seen in later materials, the law lords established, very significantly, that

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the courts have the power to review how the executive uses its prerogative powers.
 Notably, however, they concluded that in this case requirements of national security outweighed those of fairness,
recognising that this was a matter for the executive to weigh up and decide upon.
 This illustrates how the courts exercise self-restraint by not interfering in matters of government policy relating to
national security. The separation of powers balance also confers responsibility for matters of social and economic policy
primarily upon the legislature and the executive, rather than the judiciary.

Rule of Law (Rulezz)

OVERVIEW
 Very broad concept: the restriction of the arbitrary exercise of power by sub-ordinating well-define laws
 In the UK, the rule of law has arguably become a more significant and constitutionally important concept in
recent years, as illustrated by direct reference to it as a 'constitutional principle' in s1 of the CRA 2005
 No definition of ‘rule of law’ in Act – drafters left it to judges to interpret what the term means in context
 Lord Bingham in The Rule of Law (2010), defines the principle as:
o “The core of the existing principle is that all persons and authorities within the state, whether public or
private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally)
in the future and publicly administered in the courts
 The doctrine of the separation of powers = intrinsic to the rule of law
 The doctrine requires that the executive is prevented from exercising its power arbitrarily

‘Formal’ and ‘substantive’ schools of thought

In academic discourse a basic distinction can be drawn between ‘formal’ (procedural) and ‘substantive’ perspectives on the
rule of law:
Formal, e.g. Prof. Joseph Raz Substantive, e.g. Ronald Dworkin
 Legal procedure must be clear and certain  The same formal requirements apply, but
 The law must be prospective (i.e. law should not be applicable a moral component is also necessary
retrospectively)  Without respect for fundamental human
 It must be applied equally rights and freedoms, a rule of law society
 The judiciary must be independent cannot be said to exist
 The ‘moral’ content of laws is not determinative of whether the rule
of law can be said to exist in a given jurisdiction

CONTENT OF THE RULE OF LAW

 Lord Bingham, drawing on the work of Professor A.V. Dicey set out eight fundamental principles
 In his view these made up what, in liberal democracies, is recognised to be the ‘rule of law’:
1. The law should be accessible, clear and predictable
2. Legal issues should ordinarily be resolved through legal processes and not through the exercise of
administrative discretion by government officials
3. The law should apply equally to all
4. The law should afford adequate protection for human rights
5. There should be access to justice in the courts without inordinate delay or expense
6. Public officials, including ministers, should exercise the powers they have been granted in good faith and
within the limits of those powers
7. Legal and adjudicative processes should be fair
8. The state should comply with its obligations under international law
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The requirement of legality

 Principle No. 6: The government must respect and act within the confines of the law
 This requirement can be broken down into the following key points:
o Any government interference with person/property must be sanctioned by a legal authority (statute/common law),
giving an identifiable power to perform the action in question – this power must be exercised in a lawful manner –
Entick v Carrington (1765)
o The presumption, when interpreting statutes, is that Parliament cannot be seen to have intended to restrict
important rights and freedoms unless this is made clear: the legality principle – ex p Simms
o Many public (governmental) bodies are incorporated by statute and so statutory provisions will define and limit their
legal capacities
o The independence of the judiciary is essential in this respect, because the courts determine whether government
power is lawfully exercised, i.e. has been exercised “intra vires”
Judicial review and the rule of law
 Judicial review: the mechanism by which the rule of law is protected and arbitrary use of government power prevented
 The Administrative Courts will consider whether an action was lawful, in accordance with the powers granted and the
rights protected by:
o Legislation: the court cannot review primary legislation, BUT the courts can assess whether any public body has
complied with the provisions in the Act. Courts can also review legality of delegated legislation
o Common law and prerogative power: the court can assess whether the government has breached a common
law constitutional right or has lawfully exercised a prerogative power

The rule of law and parliamentary sovereignty

 RoL operates as a check on executive power by requiring that the executive acts only on the basis of lawful authority
 RoL also deployed by judiciary to restrict effect of legislation, created by Parliament, in the interests of protecting
individual liberties and rights – achieved through judicial interpretation of statutory provisions and by using common
law (and ECHR) principles of justice and fairness
 R v Sos Home Department ex parte Simms (2000): Lord Hoffmann observed, as part of his ‘legality principle, that
Parliament could, if it wished, enact laws which undermine rights, but the language of the legislation must be
completely clear:
o “Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a
risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.
In the absence of express language or necessary implication to the contrary, the courts therefore presume that
even the most general words were intended to be subject to the basic rights of the individual."
Legal certainty (accessibility of legislation and prospective nature)
 Principle No. 1: The law should be accessible, clear and predictable
 Legislation should be clearly drafted but this is not always the case – Lord Bingham identifies the “torrent of law”
 Specifically in criminal law – Bingham quotes a judge describing the Criminal Justice Act 2003 as “deeply confusing”

 Legislation should apply to future actions, not retrospectively to past actions

 Uncertainty created when you don’t know whether the law may change so that something you do in the present, which
is currently lawful, could become illegal and punishable later
 HOWEVER, retrospectively applicable legislation is sometimes passed when Parliament wishes to legislate to overturn a
decision of the courts – as it is constitutionally entitled to do
 Doesn’t matter that law changes; it is the impact of the new law on the person who acted under the old law that is
significant
Examples of retrospective legislation
War Damages Act 1965 War Crimes Act 1991 Jobseekers (Back to Work Schemes)
Act 2014
Overrode the judgment of the House of Empowered the UK courts to punish Overrode the judgment of the Supreme

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Lords in Burmah Oil Co Ltd v Lord war crimes committed by persons who Court in R (Reilly) v Secretary of State
Advocate (1965). Ultimately, therefore, were not subject to British jurisdiction for Work and Pensions (2013) which
the government was not obliged to pay at the time when the crimes were had required the Department of Work
damages for property destroyed or committed, namely during World War and Pensions to pay a rebate to
damaged in the war, as the court had Two. claimants whose Jobseekers' Allowance
previously ordered. had been withdrawn, when they
refused to take part in an unpaid back-
to-work training scheme.
Authority for governmental power
 The courts’ role is to ensure that governmental bodies stay within the boundaries of what is allowed by Parliament
through legislation (or what is recognised by the common law as prerogative power)
 In its simplest form, judicial review will determine if an executive power exists or not – Entick v Carrington (1765)
 JR can also limit governmental power, e.g. limit governmental bodies to use their power to their intended purpose – R v
Somerset County Council, ex parte Fewings (1995)
 The relevant power in this case was given by the Local Government Act 1972, which allowed councils to manage
common land for the 'benefit, improvement or development' of the area. Somerset Council decided to use the power to
ban stag hunting for ethical reasons. The view that hunting was morally repulsive had nothing to do with such questions
and so the court found that the Council had used its power unlawfully for an ‘improper purpose’.
Discretionary power
 Legislation cannot and arguably should not try to prescribe a single lawful course of action in every situation
 Some matters have to be left to the discretion of the executive (the decision-maker)
 Legislation therefore often confers a ‘discretion’ (i.e. choice on the decision-maker) as to how to exercise the power
they have been given
 Rule of Law thinkers have a natural suspicion of discretionary power
 Less tightly restricted power = gives executive greater potential to use power in an arbitrary way
 Thus – important aspect of RoL and one key function of judicial review = to control the exercise of discretionary power
granted by legislation
 The willingness of the judiciary to intervene in the government’s exercise of its statutory discretionary power increased
considerably in the second half of the twentieth century
 “One could point to dicta to the effect that an order shown to be perverse or otherwise lacking in any evidentiary support
might be held ultra vires because the competent authority could not be deemed to have been genuinely satisfied that it
was appropriate for a purpose sanctioned by legislation” – De Smith’s Judicial Review, 8th ed.

Liversidge v Anderson (1942)

 This case was decided during WWII and illustrates the prevailing deferential judicial attitude of the time
The Home Secretary was empowered under Reg. 18B of the Defence Regulations to imprison any person, if he
had 'reasonable cause to believe' that such a person had 'hostile intentions'.’ The majority of the House of Lords disagreed
and accepted the Home Secretary's interpretation of the regulation. They held that there was no objective requirement,
enabling him to take this action, as long as his belief was an honest one. Thus, the courts could not inquire into the grounds
for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith.
In the minority was Lord Atkin – he concluded that, had Parliament wished to give the Home Secretary unlimited discretion,
it would not have qualified the grant of power with the word 'reasonable'. In his view, the word purported the existence of
facts or a state of facts; therefore, the Home Secretary needed to show some evidence for his justification.

IRC v Rossminster Ltd (1980)

This case concerned the use by the Inland Revenue Commissioners (‘IRC’) of powers to enter and search premises, and seize
documents, if they had 'reasonable grounds' for suspecting an offence and 'reasonable cause to believe' that the items
seized would be required as evidence in relation to tax fraud. Suspecting tax fraud, the IRC officials obtained search
warrants, entered Rossminster’s premises, and seized documents without informing its directors of the particulars of what
they suspected. In notable contrast to Lord Denning M.R. in the Court of Appeal, the law lords did not find that the IRC’s
actions were unlawful for lack of specificity about the details about the fraud suspected. This was because no such specifics
were expressly required on the face of the relevant Act.
Significantly, though, they found that the use of the phrase 'reasonable cause to believe' was a question of objective fact,
to be tried on evidence. Lord Diplock stated: “the time has come to acknowledge openly that the majority of this House in

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Liversidge v Anderson were expediently and, at that time perhaps, excusably wrong and the dissenting speech of Lord
Atkin was right".

Equality before the law

 RoL requires that the law applies equally to everyone, as far as possible
 While the principle generally holds true, especially in the context of holding the government to account for its actions,
these are some exceptions:
o The monarch is, arguably, above the (criminal) law
o Judges in higher courts are immune from civil litigations for acts done within their official jurisdiction
o Parliamentary privilege – MPS cannot be sued for what they say in Parliament
o Diplomatic immunity
o Children are not subject to the same laws as adults
o Are there now barriers to meaningful access to justice, caused by cuts to legal aid funding over the last decade
or more?

THE RULE OF LAW - TENSIONS

 The administrative discretion given to government by Parliament (via legislation) creates one of the most
acute potential forms of tension with the rule of law
 Lord Bingham explains:
o "In practice, countless decisions are made every day by administrators charged with the duty of
running our complex society […] What matters is that the decisions should be made on stated criteria,
that they should be amenable to legal challenge, although a challenge is unlikely to succeed if the
decision was one legally and reasonably open to the decision-maker".
 Matters very much whether these decisions can be challenged (in practice) by the people affected
 In many cases they simply cannot be (due to expense and risk of brining claims in judicial review)

Access to justice
 Most obvious barrier to obtaining justice = expensive legal fees and not securing pro bono help
 Cuts to the government's legal aid budget have made it increasingly difficult for criminal defendants, and those
involved in civil claims, to obtain qualified legal representation.
 Led to significant increase in self-representing “litigants in person” – cases take longer/risk of unjust outcome increases
 It has also led to unwelcome developments such as 'McKenzie Friends' (non-legally qualified and unregulated advisors)
charging a fee for supporting someone in court – a service that was traditionally voluntary.
 In 2019 the Chair of Parliament’s Justice select committee called for fee-charging McKenzie Friends to be banned after
the High Court ruled that an unqualified “legal adviser" was negligent in his handling of a basic clinical negligence case.
He had wrongly advised a 70-year-old claimant, who was left without evidence and subsequently faced with a five-figure
legal costs claim.
Fees and costs
 Another closely related barrier to justice in the civil courts is that starting a case as a claimant costs money
 Sometimes too the risk of having to pay a defendant's costs (if a claimant loses) deters people from pursuing claims
which may not succeed.
 R (Unison) v Lord Chancellor (2017): the Supreme Court found that the Employment Tribunals and the Employment
Appeal Tribunal Fees Order 2013, (a statutory instrument which introduced a fees regime for bringing claims in
employment tribunals and the Employment Appeal Tribunal), was unlawful under both domestic and EU law, as it
effectively prevented access to justice.
 The Supreme Court reiterated that the constitutional right of access to the courts was inherent in the rule of law. Courts
existed in order to ensure that the law was applied and enforced. In order for the courts to perform that function,
people, in principle, had to have unimpeded access to them
Equality before the law (objective differences justify differentiation)
 The principle that the law should apply equally to everyone is qualified by Lord Bingham in the following terms: "save to
the extent that objective differences justify differentiation".
 E.g. young children are less mature than older children and adults. This is an objective difference which justifies different

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treatment under the law. (For instance, the age of criminal responsibility in the UK is 10).
 However, as Lord Bingham explains “the differentiation must be relevant to the distinction”
o The law properly allows a non-British national with no right of abode in the UK to be deported. It does not allow a
British national to be deported. The differentiation (deportation) is relevant to the distinction (national / non-
national).
o In contrast, it was not compatible with the rule of law to allow (via now repealed provisions in the Anti-terrorism,
Crime and Security Act 2001) non-nationals suspected of international terrorism to be detained indefinitely
without charge, yet not apply the same restriction to nationals suspected of the same conduct. The distinction
(based on nationality) was not relevant to the differentiation (indefinite detention or not), given the recognised
involvement of UK nationals in terrorism.
Inequality of application
 Schedule 7 of the Terrorism Act 2000 is described by Liberty as a "breathtakingly broad and intrusive power to stop,
search and hold individuals at ports, airports and international rail stations".
 The police, customs or immigration officer need not have any grounds for suspecting the person has any involvement in
terrorism or any criminal activity at all. Under Schedule 7, the individual may be:
o Detained and questioned for up to nine hours.
o Searched and have their belongings retained for up to seven days.
 According to Liberty: "Recent research suggests Asian passengers are 42 times more likely to be stopped under schedule
7 than their white counterparts."
 In the previous example (Schedule 7 of the Terrorism Act 2000), on the face of the law the power applies equally to all
people travelling through ports and airports.
 However, it is strongly arguable that the very wide discretion given to officers under Schedule 7 undermines the rule of
law in its application, given that the powers are used disproportionately against particular racial groups.
 The legislation does not purport to accord different treatment to different groups of people, but the way it is applied
does do so, without there being any relevant distinction between those people.
Human Rights in the UK – repeal of the HRA?
 The European Convention on Human Rights ('ECHR') is the main source of human rights law in the UK. Convention
rights are part of UK law, as they have (very largely) been incorporated into our domestic legal system by s.1 of the
Human Rights Act 1998 ('HRA').
 While the HRA puts fundamental rights on a statutory footing and obliges public authorities to comply with them, there
are long-standing and developing equivalent rights under the common law, for example: the right to life; the prohibition
of torture; no punishment without law; the right to freedom of expression and to public protest.
 Nevertheless, the HRA provides accessibility and certainty about the circumstances in which rights may be enforced. The
repeal of the Human Rights Act, possibly to be replaced by a 'British Bill of Rights', has been urged by some politicians
for a number of years and would represent a significant undermining of the rule of law to those who subscribe to the
substantive model of this ideal.
Unfair legal and adjudicative processes
 The right to a fair trial is enshrined in Article 6 of the ECHR and in the common law of the UK. Lord Bingham identified
the right to a fair trial as "a cardinal requirement of the rule of law". Liberty has identified the following 'significant
threats' to the right to fair trial in recent years:
1. The UK has signed up to "fast-track" extradition treaties which prevent UK courts from considering whether
there is evidence to justify the extradition request.
2. The line between criminal and civil law has been blurred by the widespread use of ASBOs and other civil orders.
3. A parallel system of secret courts and secret evidence has been developed, under which those accused of
terrorism can be left "languishing on control orders [or their modern equivalents] for years on end without being
told why" and without being able to challenge the suspicions against them. Hearings are conducted under the
'closed material procedure.' This allows for one party to present sensitive evidence to the judge which other
parties to proceedings cannot examine. It also allows the court to appoint specially vetted counsel to
communicate the interests of a party without risking the exposure of 'sensitive' national security details to that
party.
Non-compliance with international law
 International law contains generally agreed-upon standards of executive conduct – for example towards detainees and
combatants in the course of military action – which can be regarded as 'human rights norms’.
 In June 2018, the parliamentary Joint Intelligence and Security Committee (JISC) identified instances of government
complicity in the unlawful treatment of detainees in its 'Report on Detainee Mistreatment and Rendition'.

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 The report identified a worrying lack of clarity in the government's guidance on: "the interviewing of detainees overseas
and the exchange of intelligence on detainees in order to ensure that our Security and Intelligence Agencies are not, and
will not be, involved in torture or mistreatment in the name of the UK."
 In a subsequent interview with the Law Society, former Attorney General Dominic Grieve QC MP, Chair of the JISC at the
time, identified a number of key current challenges to the rule of law. He described the experience of trying to
persuade government officials that laws and rules were "there to help them" and explained how "cutting corners" and
failing to ask "rule of law questions" led the government into error in the treatment of detained suspected terrorists
and its involvement in rendition and torture.
Government criticism of judges
 The separation of powers requires the judiciary to be separate from the executive. It arguably also requires the executive
to respects the role of judges as the final arbiters of what the law means.
 While this statement has undoubtedly been true for as long as the judiciary has limited the government's exercise of
power, there has been a trend in recent years for the government to criticise the judiciary overtly. As Prime Minister,
Boris Johnson, went as far as to say that he "profoundly disagrees" with the UKSC’s judgment in Miller (No.2).
 Lord Hailsham reminds us that: "in properly exercising judicial power to hold ministers, officials and public bodies to
account, the judges usurp no authority. They exercise a constitutional power which the rule of law requires that they
should exercise”.
 It is arguably detrimental to the rule of law for government officials to express views on matters which are outside their
constitutional remit, once the court has definitively ruled
Developing challenges
Challenges to the rule of law change and develop with the course of history. Two challenges of immediate – and likely
increasing – relevance, are the legal fall-out from Brexit, and the increased automation of public decision making
The EU Withdrawal Act Automated decision-making
 The EU Withdrawal Act creates 'Henry VIII powers’ which  Artificial Intelligence and algorithm-based decision-
allow government to change primary legislation by making plays an increasing role in public
statutory instrument ('SI'), without further recourse to administration.
Parliament.  The former Attorney General, Dominic Grieve, has
 In October 2019 the government withdrew one such SI raised the example of post-Brexit online applications
following a legal challenge by the Public Law Project (PLP). for leave to remain in the United Kingdom: how can
The SI empowered government officials to amend VAT on someone appeal a decision made by an algorithm,
customs and excise law by public notice - not by law - not knowing what factors it has taken into account
following Brexit. and the 'reasoning' by which the decision has been
 Jo Hickman, PLP director, said: reached?
o Introducing a power to change the law completely  While automated decision-making may have
outside of the parliamentary process would set a advantages in terms of speed and saving expense, its
dangerous and undemocratic precedent. The alignment with the rule of law is questionable, as it
Statute of Proclamations 1539 was repealed after undermines the principle of judicial transparency,
the death of Henry VIII for good reason.' accessibility and certainty.
Parliamentary sovereignty
 Final potential source of tension with the rule of law to be considered = principle of parliamentary sovereignty
 When upholding the rule of law, the judiciary is doing so in relation to the executive – it is attempting to scrutinise the
legality of what governmental bodies are doing to ensure that they act in accordance with the law.
 Nevertheless, most legal authority is now provided for in statute and, given its ‘supremacy’, Parliament can pass any law
it wishes
 The ultimate question, therefore, is what would the courts do if Parliament passed an Act which fundamentally
undermined the UK as a rule of law state, for instance by abolishing judicial review or changing the rules of democracy?
 This possible eventuality was addressed (in obiter discussion) by the law lords in the very significant constitutional case
of Jackson v Attorney General (2005)

LIMITS ON EXECUTIVE POWER

Requirement of legality
 The principle in Entick v Carrington (1765), that governmental power can only be exercised on identifiable authority
and in a lawful manner, is fundamental to the exercise of restraint on the power of the executive.
 The separation of powers underpins the two mechanisms for that restraint:

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Control by Parliament Restraint by the Courts

Parliament decides whether or not government proposals The executive's 'ultra vires' actions are restrained by judicial
become law, and it passes laws which gives the executive review – “The rule of law enforced by the courts is the
powers but within regulated restrictions. ultimate controlling factor on which our constitution is
based." Per Lord Hope in Jackson v AG (2005)

Protection of ‘Convention Rights’

 Human Rights Act 1998 = one of the principal sources of legislative restriction over the use of executive power
 The Act was passed by Parliament to give effect in UK law to rights and freedoms guaranteed under the ECHR
 This means that the HRA is the principal source of protection against government interference with human rights.
 For now, you need to be aware that:
o If your Convention rights have been breached, you can seek redress in a UK court. The court should attempt to
interpret UK law in a way which is compatible with your Convention right
o Public authorities, e.g. government departments and the police, must act in accordance with your Convention
rights (unless they have a defence).
o Parliament will (in most cases) ensure that new laws are compatible with Convention rights.

Proportionality
 Concept of proportionality = a very important aspect of the protective function of the ECHR
 Some rights under the Convention are absolute rights, such as the prohibition on torture and inhuman or degrading
treatment. The state can never restrict absolute rights
 Others are limited or qualified rights, which the state can legitimately interfere with in some situations.
 Qualified rights (such as privacy and freedom of expression) can be interfered with, if:
o There is a "legitimate aim" in restricting the right (including public safety, the prevention of crime, the protection
of health, national security or the protection of other people’s rights).
o The restriction is in accordance with or "prescribed by" law. (Note the rule of law basis of this concept).
o The restriction is "necessary in a democratic society".
 This requires that the restriction corresponds to a pressing social need and is proportionate to the aim
pursued.
Sunday Times v UK (1979-80)
The judgment of the European Court of Human Rights (‘ECtHR’) illustrates how the proportionality principle is applied
(the case pre-dates the Human Rights Act – today it could be resolved in the UK)
 Between 1958 and 1961, the drug thalidomide was prescribed as a sedative to some pregnant women; it was later
found to cause serious birth defects. A negligence claim was brought against the drug company. In 1972 the Sunday
Times published an article which exposed the tragedy. A High Court order was obtained restricting further publication on
the basis that it might affect negotiations between the drug company and the victims in the ongoing court case. The
court also made it clear that further publication would constitute contempt of court.
 The newspaper took its case to the ECtHR, which held that the UK court order had infringed its freedom of expression.
The thalidomide scandal was of undisputed public concern and the public and families of victims had a right to know
about it. The ECtHR did not accept that there was any greater "pressing social need" which could justify the restriction
on the story. The court order and threat of contempt proceedings were a disproportionate restriction, therefore, on the
newspaper’s freedom of expression.

‘Derogation’ from Convention rights

 The ECHR recognises that, in certain circumstances, member states may need to take measures which temporarily
suspend certain human rights.
 For example, in times of war, the government may wish to have the power to detain individuals without recourse to
judicial procedures. States are therefore permitted to derogate from some, but not all, Convention rights, rendering
them inapplicable for a specific period of time.
 Article 15 ECHR provides:
o "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may
take measures derogating from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with its other obligations under
international law. "
A & Others v Secretary of State for Home Department (2004) – ‘Belmarsh case’

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This judgment illustrates how, although the government can derogate from some ECHR rights in defined circumstances, it
can only do so in accordance with the law
This case concerned the government's derogation, under Article 15 ECHR, from the right to personal liberty under Article
5(1) ECHR. It was argued that this derogation was necessary so that the government could initiate a policy of indefinite
detention of foreign nationals suspected of being terrorists (who could not be forcibly removed from the UK).
This policy was a key element of the Home Office's response to the threat of terrorism in the UK, following '9/11'. It led to a
number of suspected 'international terrorists' being detained without trial in Belmarsh Prison for up to three years.
In accordance with Article 15, the Home Office therefore had to show both that there was a "public emergency threatening
the life of the nation" and that the measures taken were "strictly required"; in other words that they represented a
proportionate response to the aim behind the anti-terrorism policy.
The House of Lords found as follows:
The decision as to whether or not a "public emergency" exists, within the meaning of Article 15, is largely a political decision,
and the court should "give great weight" to the higher competence of the government to assess this factor. (Note, however,
a bold dissenting opinion on this point from Lord Hoffmann.) However, even if it was accepted that there was a public
emergency, the measures only targeted people who were non-UK nationals. This was not deemed to be a proportionate and
rational response, given that the contemporary threat was equally evident from UK nationals. The measures were also
unjustifiably discriminatory (in relation to Article 14).
Constitutional statutes
 The Human Rights Act 1998 is a clear example of a 'constitutional statute', but it is by no means the only one.
 The modern view is that constitutional statutes are more difficult to repeal than ordinary legislation and so afford an
additional level of protection for constitutional rights.
 Statutes corresponding to this definition have existed for centuries. Some examples are:
o Bill of Rights 1689 /// Act of Settlement 1701 /// Parliament Act 1911 /// Representation of the People Act 1918
 More recent examples include:
o European Communities Act 1972
o Scotland Act 1998
o Constitutional Reform Act 2005

Constitutional statutes and executive power

 Broad definition of a ‘constitutional statute’ was first given by Laws LJ in Thoburn v Sunderland City (2002) as one which:
o 'conditioned the legal relationship between the citizen and state in some general, overarching manner, or
enlarged or diminished the scope of what were regarded as fundamental, constitutional rights.'
 The definition of a constitutional statute is developed further by Farrah Ahmed and Adam Perry in the Oxford Journal of
Legal Studies, Vol 37, Issue 2, Summer 2017, pp 461–481:
"A constitutional statute is a statute at least a part of which
(1) creates or regulates a state institution and
(2) is among the most important elements of our government arrangements, in terms of (a) the influence it
has on what state institutions can and may do, given our other governing norms, and (b) the influence it
has on what state institutions can and may do through the difference it makes to our other norms.
Simplifying …, a constitutional statute is a statute that is about state institutions, and which substantially influences,
… what those institutions can and may do."
Implied repeal
 Implied repeal = a new statute, which is inconsistent with an existing statute, will automatically supersede the existing
law without there needing to be an explicit provision to that effect – in other words, without need for ‘express repeal’.
 Constitutional statutes are different, because the doctrine of implied repeal is now seen not to apply to them. They
may be repealed, but only by "express words in a later statute or by words so specific that the inference of an actual
determination [by Parliament] was irresistible." (Thoburn, per Laws LJ).
 The principle that constitutional statutes cannot be impliedly repealed was confirmed in H v Lord Advocate (2012), in
which the Supreme Court found unanimously that the Scotland Act 1998, due to its 'fundamental constitutional' status,
is 'incapable of being altered otherwise than by an express enactment'.
 This principle can act as a partial restriction on executive power. If a government wishes to pass legislation inconsistent
with the provisions of a constitutional statute, it has to confront the consequences. It can try to repeal the constitutional
statute, but this must be made v clear in the statutory language used + may result in political resistance.
 The way in which constitutional statutes are interpreted nowadays by the courts has created some friction with the
traditional principle of parliamentary sovereignty, as it is generally accepted that provisions in such legislation cannot

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be impliedly repealed
Common law constitutionalism
 Common law is also a repository of individual rights (such as freedom from arbitrary arrest and detention, freedom of
assembly, and the right to protest).
 Protection of important rights and freedoms is not simply a function of statute
 As Lord Toulson put it in Kennedy v The Charity Commission (2014):
o "What we now term human rights law and public law has developed through our common law over a long period of
time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on
the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the
citizen’s daily life.
o The growth of the state has presented the courts with new challenges to which they have responded by a process of
gradual adaption and development of the common law to meet current needs. This has always been the way of the
common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has
sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it
was not the purpose of the Human Rights Act that the common law should become an ossuary."

Royal Prerogative (Rprerog)

WHAT IS THE ‘ROYAL PREROGATIVE’?
 The classic definition of the prerogative was laid down by Dicey, who stated it was:
o “The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands
of the Crown […] Every act which the executive government can lawfully do without the authority of
an Act of Parliament is done in virtue of this prerogative”
 E.g. Tony Blair used the royal prerogative to take Britain to war in Iraq in 2003
o Blair did not as a matter of law need parliamentary consent to commit British troops, though he did
seek parliamentary approval for this course of action for political reasons. That remains the position
o In 2014, the HoC voted against possible UK military action against Syrian President, Bashar al-Assad’s
government to deter the use of chemical weapons. A vote was not legally required, but it was taken
(and respected) for political reasons
 Note: the courts (Administrative Court and upwards) are the arbiters of the existence and extent of a claimed
prerogative power

Transition from absolute monarchy to democratic constitutional monarchy

 UK has developed from an absolutist monarchy to a democratic constitutional monarchy with limited powers
 The prerogative powers = the remnants of the old ‘monarchical’ powers - these have been gradually eroded since 1688
but some very significant ones remain
 Although these are the executive powers of the monarch, they are exercised on her behalf by the government.
 These powers are exercised, for instance, when the government decides to commit troops to war, when it enters into a
treaty, or when an appointment is made to the House of Lords.
 Prerogative power was at the heart of the Government's attempts in 2016 to trigger the Article 50 'Brexit' process
without initial parliamentary approval, which led to the case of R (Miller) v SoS for Exiting the EU, decided in the
Supreme Court
Development of prerogative power
 Historically PPs have been exercised without need to gain consent of Parliament and with little or no control by courts
 In modern democracy, where accountability of the Executive is vital, the courts’ control of the exercise of PP has
become increasingly important
 GCHQ: landmark House of Lord’s decision significantly extended the reviewability of PPs and since that time control
has been tightened further
 Reform of some areas of PP has occurred in piecemeal fashion, for instance:
o The Constitutional Reform and Governance Act, passed in April 2010: made provisions for treaties to be
ratified only after Parliament has had the opportunity to raise opposing resolutions (this provision is quite
limited as only covers a specific aspect of PP (process relating to approval of treaties)
o Constitutional conventions: condition how these executive, legal powers are actually used

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The position of the Crown in law

 UK = ‘constitutional monarchy,’ i.e. nation in which monarch is head of state but not political head of government
 Gradual process from 1688 has effectively passed power from monarch to executive
 The term ‘royal prerogative’ refers to those powers of the ‘Crown’ that are recognised by common law, as distinct from
those conferred and exercised under statute (‘crown’ refers to executive not monarch)
 This reflects a very strong constitutional convention that the executive exercises the monarch's powers, a position
which is sometimes phrased as the Queen acting 'on the advice of' the Prime Minister.
Control by statute and convention
 Although prerogative remains important, business of government is now largely conducted through statutory powers
 In those areas where the prerogative retains significance (e.g. military action), how the power is actually used is largely
governed by convention
Ministerial Prerogative powers
Ministerial prerogative powers are those which can be exercised by government ministers, relating to:
(1) The judicial system,
(2) Foreign affairs,
(3) Armed forces, war and times of emergency (‘defence of realm’)
(1) Judicial system – prerogative of mercy
 The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the
Crown. Historically, the principle of a pardon pre-dates the Act of Settlement 1700, which altered the law so that a
pardon could not "stop an impeachment … but there is to be nothing to prevent the king from pardoning after the
impeached person has been convicted and sentenced".
 The prerogative of mercy is an example of a prerogative which the courts have willingly reviewed
 In the case of R v Secretary of State for the Home Department, ex parte Bentley [1993] it was held:
o "The court had jurisdiction to review the exercise of the royal prerogative of mercy by the Home Secretary in
accord with accepted public law principles since the exercise of the prerogative was an important feature of the
criminal justice system and a decision by the Home Secretary which was infected with legal errors ought not to be
immune from legal challenge merely because it involved an element of policy or was made under the prerogative."
(2) Foreign affairs – prerogative powers
 Granting and revoking passports is a Ministerial prerogative power
 The recognition of other sovereign states and their representatives is a prerogative power
 The making and ratification of treaties = prerogative power
o Attorney General for Canada v Attorney General for Ontario (1937): Treaties are seen as a contract between
states, which does not generally require the approval of Parliament
 The governance of British Oversea Territories = prerogative power
(3) Armed forces and emergencies
 The taking of measures necessary in times of emergency and/or for the 'defence of the realm', including the control of
armed forces, is a prerogative power
 Chandler v Director of Public Prosecutions (1964): Lord Reid stated: 'The disposition and armament of the armed
forces are and for centuries have been within the exclusive discretion of the Crown …'
 Burmah Oil Company Ltd v Lord Advocate (1965): installations owned by the oil company in Burma (then a British
colony) had been destroyed during World War Two on the orders of the commander of the British forces, to prevent
them falling into the hands of the Japanese army.
o By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no
general rule that the prerogative could be exercised without compensation. Lord Reid stated: '[T]he
prerogative certainly covers doing all those things in an emergency which are necessary for the conduct of
war.'
The Monarch’s prerogatives
In addition to Ministerial prerogatives, some 'personal' prerogatives which were traditionally exercised by the Monarch still
exist. These are now exercised by the Monarch 'on the advice of the Prime Minister':
 The appointment and removal of ministers.
 The appointment of the Prime Minister.
 The right to assent to legislation.
 The creation of peers and the granting of other honours.
 The right to prorogue Parliament.
The Crown’s Legal Prerogatives

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 Administration of justice = historically the prerogative of the monarch, who was regarded as the 'fountain of justice',
 Today, the structure of the courts and their jurisdiction are almost entirely statute based. The remaining legal
prerogatives of any significance are as follows:
o Crown and statute? there is a presumption that the Crown is not bound by statute, meaning that legislation
will not apply to the Crown unless express words have been used or it can inferred (by 'necessary implication')
that Parliament did intend to bind the Crown. In Province of Bombay v Municipal Corporation of the City
Bombay [1947] the Privy Council reaffirmed and elaborated upon this principle:
 'If ... it is manifest from the very terms of the statute, that it was the intention of the legislature that
the Crown should be bound, then the result is the same as if the Crown had been expressly named.'
o Immunity from some litigation: the Crown is not directly subject to the contempt jurisdiction (i.e. contempt
of court); and the sovereign has personal immunity from prosecution or being sued for a wrongful act.

Control of prerogative power

Prerogative power can be ‘controlled’ in four ways:
1. By application of public law (judicial review jurisidiction in the courts)
2. By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
3. Informally, by political pressure
CONTROLinOF government and public
THE PREROGATIVE life (e.g. media)
– LEGALITY
4. Informally, by changes to convention of time
 Prerogative power = residual form of legal authority which the executive ‘owns’ but which has not been
legitimated through the parliamentary process
 Potential for it to be abused = higher than with statutory power
 Certain political mechanisms can be adopted to modify this effect, e.g. through constitutional conventions
 BUT it is primarily through the courts that the use of prerogative powers has been controlled
 Tension between old form of power and requirements of legality is evident throughout history and involved
certain long-term trends

Historical tension between Government and judiciary

 Development of court’s ability to review prerogative power – been evident since early 17 th century
 GCHQ in 1980s = most clear-cut developments have occurred following this seminal case
 Prerogative = form of power that has legal enforceability through common law
 It is therefore the judges who should determine how and to what degree they are able to ‘control’ its use
 Use of prerogative powers by early Stuart kings = major source of tension in country (one of several factors
leading to Civil Wars in 1640s, notably Charles I’s imposition of the ‘Ship money’ taxes
 James I was also challenged in courts in relation to his use of the royal prerogative
 In this important historical case, the leading jurist of the day, Chief Justice Coke, established the view (later
reflected by Dicey) that the royal prerogative represented a finite stock of power.
 Crown power was legitimated through recognition in the common law. Therefore, a particular form of
prerogative power could not be said to exist unless the courts accepted that there was a precedent for it
having been used in the past = “the King hath no prerogative but that which the law of the land allows him’
Case of Proclamations

Legality of prerogative powers

 In the post-1688 regime, when it was ultimately Parliament and not an absolute monarch that was supreme, the use of
executive power of doubtful origin was even more open to challenge.
 Entick v Carrington (1765): the government of the day claimed to have the legal authority to enter and search Entick's
premises under a 'general warrant'. He was suspected of association with the radical political leader, John Wilkes.
Entick challenged this as a trespass on his property.
 The court consulted "its books" but found no precedent for this action in common law (nor in any statute), reinforcing
the point made in 1607 by Coke that the executive cannot act under a purported prerogative power that has not been
recognised by the common law. Put simply, this power didn't exist!
Scope of prerogative powers
 In BBC v Johns [1965]: Lord Diplock made the celebrated comment that:
o 'It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.'
 This neatly sums up the point that prerogative power comprises of a finite stock of executive power that can only be
reduced in scope (through statutory incursion) and never expanded
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 The courts were also historically able to adjudicate upon or ‘review’ what the scope of a prerogative power was
 This issue is also part of what can broadly be described as review of the legality of prerogative powers.
 There are numerous examples of the courts being called upon to adjudicate on this question.

Prerogative and statute

 Two forms of governmental power: the prerogative (recognised by common law) and statutory power (legislation)
 What is the relationship between the two? what is the position if a particular executive power or function appears to
be governed by both? This was the key issue which was put beyond doubt in the following case
Attorney-General v De Keyser’s Hotel Ltd (1920)
 This concerned a dispute between the government and the hotel owners about whether compensation should be
payable for the requisitioning of the hotel for use by the Army Council during World War One.
 The Attorney-General claimed that the government could effectively choose to use its historic prerogative power to
take emergency action during war for the 'defence of the realm', even if Parliament had legislated on the same ground.
 The law lords decisively rejected this contention and stated that the Crown was bound in this situation by the statutory
regime applying under the Defence of the Realm Act and associated Regulations.
 In doing so, the court clearly viewed statutory power as a superior form of power than that of prerogative, thereby
reflecting the central importance of the sovereignty of Parliament in the UK constitution (De Keyser principle)
 In summing up in De Keyser, Lord Atkinson explained that the statutory powers had 'abridged' the older prerogative
powers and that the prerogative was to be considered 'in abeyance', i.e. suspended, if not necessarily permanently
extinguished
Implied suspension by statute
 In the case of Laker Airways v Dept of Trade (1977), the government sought to justify a reversal of aviation policy
through use of its prerogative power to negotiate international treaties, in this case the Bermuda Agreement which
regulated transatlantic flights. As part of its policy to promote B.A., (then the nationalised airline), the Department of
Trade cancelled Freddie Laker's "Skytrain" approval or 'designation' under the Bermuda Agreement.
 This was sharply criticised by Lord Denning in the Court of Appeal, who saw the purpose of the action taken under the
prerogative to be sharply at odds with the statutory requirements in the Civil Aviation Act 1971 for revoking airline
designations.
 Lord Denning in Laker Airways: "Seeing that these statutory means were available for stopping Skytrain if there was a
proper case for it, the question is whether the Secretary of State can stop it by other means. Can he do it by
withdrawing the designation? Can he do indirectly that which he cannot do directly? Can he displace the statute by
invoking a prerogative? […] If he could do this, it would mean by a side wind, Laker Airways Ltd would be deprived of
the protection that statute affords them. There would be no hearing, no safeguard against injustice … To my mind such
a procedure was never contemplated by the statute."
R v SoS for the Home Department, ex parte Fire Brigades Union (1995)
 This case accentuated the importance to the courts of following parliamentary intention if there are any forms of over-
lapping statutory and prerogative powers in operation.
 The then Home Secretary, Michael Howard, decided to use prerogative powers to introduce a new 'tariff-based'
criminal injuries compensation scheme. This was even though Parliament had legislated earlier for a statutory scheme
in the Criminal Justice Act 1988. Howard claimed to be able to introduce his scheme, as the statutory scheme had not
yet been implemented. His actions were challenged by the FBU.
 The law lords found against the Home Secretary on the main issue, again underlining the primacy of statutory law over
other forms of common law.
 Lord Browne-Wilkinson: ‘The constitutional history of this country is the history of the prerogative powers of the
Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body […]
under the principle in … De Keyser … if Parliament has conferred on the executive statutory powers to do a particular
act, that act can only thereafter be done under the statutory powers so conferred’
R (Miller) v Secretary of State for Exiting the European Union (2017)
 Following the EU referendum in 2016, Theresa May, sought to trigger the two-year Article 50 process of negotiation
required before the UK left the EU. Her intention was to use her prerogative power in relation to treaty-making and
variation to bring this about.
 Her power to do so was challenged in court by Gina Miller, amongst other parties, and the case, which the government
lost at first instance, was accelerated for a hearing in the Supreme Court.
 In one of the most important constitutional cases in recent times the UK Supreme Court ('UKSC') found against the
government on an 8-3 majority basis.

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 Miller (1) can be seen as a 'legality' case, as the challengers' argument was that the PM simply did not have the power
to trigger Art 50 using the prerogative. The Admin Court and the majority in the UKSC ultimately agreed.
 The majority decision centered around the conviction that it was constitutionally inappropriate for the process of
leaving the EU to be triggered by use of the prerogative when the effects and consequences of this process would be
so significant for the UK.
 It was felt that a step of such magnitude, leading to a notable change in the law of the land and in individual rights,
could only be sanctioned by Parliament through primary legislation.
 (This is what ultimately happened through the European Union (Notification of Withdrawal) Act 2017).
 '… withdrawal [from the EU] is fundamentally different from variations in the content of EU law arising from further EU
Treaties or legislation. A complete withdrawal represents a change which is different not just in degree but in kind from
the abrogation of particular rights, duties or rules derived from EU law.
 … It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK
constitutional arrangements to be brought about by ministerial decision or ministerial action alone'. (Neuberger)
Limit to the De Keyser principle?
 The trend in case law following De Keyser appears to be relatively clear-cut. However, one controversial case suggests a
limit in certain situations involving over-lapping statutory and prerogative powers.
 In R v SoS for the Home Department ex p Northumbria Police Authority [1998], the issue arose after the Home
Secretary sought to establish a central store for providing plastic baton rounds and other riot-control equipment to the
various national police forces.
 Northumbria P.A. argued that the Police Act 1964 gave it a monopoly over the supply of equipment to the police force
in its area. The Court of Appeal held that the P.A.'s power to supply equipment under the Act did not give it a
monopoly and that the Act did not override the Home Secretary’s prerogative power to keep the peace within the
realm.
 The rationalisation behind this varied to an extent between the judges.
o Croom-Johnson LJ held that the Home Secretary’s use of the prerogative was not incompatible with the police
authority’s powers under the Act.
o Purchas LJ took the view that a prerogative power may still apply if it is directed to the benefit or protection of
the individual – as opposed to restricting the rights of the individual (as could be argued was the case in De
Keyser or Fire Brigades, for instance) – and if the statute does not unequivocally deprive individuals of that
benefit or protection.
 This remains a much-disputed decision but arguably it is less functionally significant in the modern day, now that in
principle (following the GCHQ case) the courts do not distinguish between judicial review of statutory and prerogative
powers.

CONTROL OF THE PREROGATIVE – GCHQ & SUBSTANTIVE REVIEW

 Until the mid-80s the senior UK courts had not reached a point where they were prepared to review how the
government used its prerogative powers.
 Traces of future developments can be detected in earlier cases decided at a lower level, notably R v Criminal
Injuries Compensation Board, ex parte Lain (1967), but these were not conclusive.
 So, until this time all the courts felt able to do was to adjudicate on whether the government had a particular
prerogative power and on what the exact scope or limits of that power were.
 They had not reached the point where it was accepted that there could be a review or scrutiny of how these
ancient powers were exercised – in other words the substance of the governmental action taken.

Council for the Civil Service Unions v Minister for the Civil Service (1985)
 This case was prompted by a decision by the then Minister (and Prime Minister), Margaret Thatcher, to ban trade union
membership at the government’s listening base in Cheltenham
 Her authority to do this came from the PM’s prerogative power to regulate the working terms and conditions of the Civil
Service – the issue was not whether the PM had authority to do this – that was not disputed by the CSU
 Instead it was the manner in which she had used her prerogative power – allegation was that she had done so unfairly

Legitimate expectation (‘LE’)

 This is a form of legal interest that can be protected by the courts.
 In GCHQ the unions claimed successfully that they had a LE of being consulted before any notable changes were made in

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working conditions.
 This was because they had consistently been consulted in such situations over the previous four decades.
 Therefore they were claiming that the PM had acted unfairly by frustrating their LE by announcing the ban on union
membership without any prior consultation.

The government’s defence: accepted prerogative powers should not be subject to review (failed)
 Fundamental line of argument in defence was that the courts were simply not permitted to review how the PM used her
prerogative powers. If it was accepted (as it was) that the PM had the power in question, judicial review should go no
further...
 This was the key issue of principle in the case and the House of Lords' ruling against the PM on this point set the tone for
a notable development of the law in this area.
 The essence of the law lords' ruling was that it made no constitutional sense for prerogative powers to be seen as having
a special status just because of their historic origins and association with the Crown. Both prerogative powers and
statutory powers were forms of executive power; the latter had for many decades been reviewable. So, why the
differentiation...?

Source of power no longer relevant

 Therefore the traditional distinction between power given by Parliament and that bequeathed by the prerogative should
no longer determine if government actions were reviewable or not.
 Put another way, the government could no longer shelter behind the fact that a power came from the prerogative – in
principle all executive powers should be reviewable in order that the rule of law be promoted effectively.

Second line of defence

 Though the PM lost on the key issue of principle, she did manage ultimately to defend the case.
 The law lords accepted that the unions had a LE of being consulted and acknowledged that this had been 'frustrated' by
the PM. However, they did not find this ultimately to be unlawful as they accepted the PM's argument that there was a
justifiable public interest factor in not consulting, as advance notice may have triggered strike action and that may have
jeopardised the country's national security, (given the highly sensitive work carried on at GCHQ).
 In other words the court had reviewed how the PM used her prerogative power, but they ultimately considered this has
not been done unlawfully.

A word of caution
 The judges' bold main line on reviewability came with a notable word of caution, however.
 They pointed out that, even though there should be no future differentiation between prerogative and statutory powers,
a number of notable prerogative powers governed areas that broadly involved matters of high policy.
 These comments, expressed most clearly by Lord Roskill, have assumed considerable subsequent influence on the
development of the law, though it's important to note that they were obiter rather than being part of the main ratio in
GCHQ.
 The prerogative powers that Lord Roskill listed were, in his view: “not … susceptible to judicial review because their
nature and subject matter are such as not to be amenable to the judicial process."
 They included:
o The making of treaties o Granting of honours
o Defence of the realm o Dissolution of Parliament (this power is now governed by statute)
o Mercy o Appointment of ministers (‘and others’)

Separation of powers concerns

 When Roskill referred to the 'amenability' of such matters to the process of JR, he demonstrated how the judiciary
regulate the extent of their own involvement in the more political areas of public law.
 There are no formal lines of responsibility laid out in the UK's uncodified constitution - instead the judiciary attempts to
respect appropriate informal lines of responsibility in the UK's constitution delicate SOP balance.

Non-justiciability
 This is an area in which the phrasing used by the judiciary is perhaps not always that precise or helpful. Some
viewpoints, following on from Lord Roskill's sentiments, have used phrases such as "forbidden areas" or "excluded
categories" – It is debatable in the modern day whether the issue is as binary as this.
 Certainly, some of the powers exercised under the prerogative involve matters which are not suitable for court

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adjudication, as they are essentially political judgement-calls.

 Notable examples would be the appointment of ministers (by the PM) and the granting of honours – it is difficult to see
how these assessments could be adjudicated upon in court, other than in relation to the pure legality of these powers.

Substance and not form

 Aside from those latter prerogative powers – which essentially govern political patronage – most of the powers listed by
Roskill and other similar ones contain within their remit a number of different elements.
 Some of these involve considerations of high policy but a number of others do not – they could be described as falling at
a more administrative or operational end of the spectrum of governmental powers.
 In the days since GCHQ, the courts have increasingly taken an approach – and tailored the degree of their
interventionism – based on the nature of the power that the government has used rather than its form.

CONTROL OF THE PREROGATIVE – POST GCHQ

 By the mid-1980s, following the case of GCHQ, the higher courts had confirmed that there was nothing
inherently special about prerogative power.
 As a matter of principle the manner of its exercise should be just as reviewable by the courts as the way in
which statutory powers were exercised.
 However, concerns persisted over the nature of some prerogative powers which were seen to involve matters
engaging issues of higher policy. The question therefore was to what extent the judiciary as an unelected
body should be able to intervene in such areas.

Rule of law and accountability

 The pattern of development in judicial review over the last half century has been towards greater promotion of a
substantive conception of the rule of law.
 One of the key elements of this has been the drive towards greater accountability in government.
 Judicial review is the main mechanism whereby this vital aspect of public law protection can be achieved.
 However, the context in which the judges operate is also conditioned by the delicate (and at times tense) separation of
powers relationship between the courts and the executive.
Post-GCHQ approach
 Further expansion of the remit of judicial review, though one in which the judiciary still display some caution about
their constitutional role.
 In matters involving substantive issues - as opposed to those of pure legality – the approach applied by the judiciary is
contextual – applies equally, in principle, to review of prerogative and statutory power
 If the matter is one of higher policy, the degree or 'intensity' of review is light or 'low'; in contrast – at the other end of
the spectrum of issues the intensity of review is higher.
R v SoS for Foreign and Commonwealth Affairs, ex parte Everett (1989) (GRANTING OF PASSPORT)
 The case concerned an application for a new passport from a UK national, residing in Spain, for whom an arrest
warrant had been issued. Everett wished to challenge the refusal by the FCO to approve his application, based on its
policy relating to those suspected of past criminal activity. – CoA found against Everett on facts
 Important aspect of the case was the court's acknowledgement that this was a matter that was suitable for JR.
 The FCO failed in its attempts to argue that this was 'non-justiciable', because the power to grant passports fell under
the broad umbrella of the prerogative relating to diplomatic relations. The courts again looked to the nature of the
power concerned rather than where it came from.
 “At the top of the scale of executive functions under the prerogative are matters of high policy (making treaties, making
war, dissolving Parliament) […] But the grant/refusal of a passport is in a quite different category. It is a matter of
administrative decision, affecting the rights of individuals and their freedom to travel” (Taylor LJ)
R v SoS for the Home Department, ex parte Bentley (1993) (MERCY)
 Similar approach in this case involving a matter that technically fell under the auspices of the prerogative: the ancient
power of the 'Crown' to bestow 'mercy' by giving pardons. Concerned a challenge to the Home Secretary's decision not
to grant Derek Bentley a posthumous pardon. He had been hanged for murder in 1953 after a conviction in
circumstances which several decades later were viewed as amounting to a serious miscarriage of justice.
 Again the court dismissed the government's argument that the matter was entirely non-justiciable, based on Lord
Roskill's concerns a decade before. His concerns were classified by the court as having been obiter and therefore non-
binding.
 The court distinguished between full pardons, which they saw to be an issue of higher policy, (only to be granted if

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the person concerned was now seen as 'morally and technically innocent'), and other considerations which the Home
Secretary could have taken into account. These, including the availability of conditional pardons, were not seen to be
beyond the courts' remit and so his failure to consider such an outcome was criticised.
Variable intensity of review
 Everett and Bentley: examples of issues coming before the court in which the nature of the powers used by the
executive were relatively low-level or administrative.
 Both cases involved matters of great importance to the individual, or (in the Bentley case) his surviving relatives but
were essentially about how relatively routine or administrative processes or policies had been implemented.
 In the following cases, the courts had to respond to challenges made to how the executive had used prerogative
powers partly or wholly at a higher policy level. Here the courts' approach has to be more finessed and to take into
account the wider separation of powers balance previously alluded to.

Foreign policy and diplomacy

 Matters touching on diplomatic relationships between the UK and other states are clearly matters of higher policy.
 A more traditional outlook – and one maintained in Roskill's obiter speech in GCHQ – would suggest that any attempt
to challenge a decision taken using this part of the prerogative should be met with minimal engagement by the courts.
 Nevertheless, such challenges have been accepted by the Administrative courts – in the sense that the challengers
have been allowed "standing" to bring the matter before the court.
 However, the intensity of review/depth of scrutiny carried out by the courts has been at the low end of the spectrum.
Abbasi
 Following '9/11' the US administration took draconian action in the so-called 'War on Terror'. One key measure taken
was the setting-up of a high security detention centre on USA land at Guantanamo Bay on the Cuban coast.
 One of the captives exposed to the highly controversial regime in the centre was a UK national, Feroz Abbasi. His
family sought to challenge the UK Foreign Office on the basis that it had not done enough to try to extricate him from
this predicament, which the US declared was not subject to international law. Lord Phillips MR put it as follows:
 ‘To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or
public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the
executive in the field of foreign relations justiciable in the English court?’
The response
 The fact that the court accepted the challenge in this case but ultimately found for the Foreign Office demonstrates
competing considerations in this area. The court clearly felt it important that the individual should have the right of
challenge if there was a recognised legal interest that needed to be considered – here it was his legitimate expectation
of diplomatic assistance.
 However, this was seen to be an area in which the courts had minimal competence and in which the executive were
the primary decision-makers.
 “The Secretary of State must be free to give full weight to foreign policy considerations, which are not justiciable.
However, that does not mean the whole process is immune from judicial scrutiny. The citizen’s legitimate expectation is
that his request will be ‘considered’, and that in that consideration all relevant factors will be thrown into the balance”
 The outcome, therefore, was that the challenge was unsuccessful. However, the court did make a significant point that,
if there had been no ‘consideration’ of making representations, the court would have ordered the Foreign Office to
make them.
Defence of the realm
 Like diplomatic relations, this area of prerog. power encompasses a wide array of differing governmental functions
 At one end there are decisions to take military action and how to conduct such operations – matters of higher policy, in
which the executive effectively have sole competence
 The courts remain very likely to see these types of decisions or actions as non-justiciable.
 This approach can be seen in a number of cases relating to the legality of the war in Iraq.
 R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002), QB Simon Brown LJ stated that it was:
'accept[ed] that the decision to take military action is beyond the court's purview'.

Operational issues
 As a further example of the more subtle modern differentiation between the nature or character of different types of
power, the courts have not been as prescriptive over operational military matters.
 Smith, Ellis and Allbutt v Ministry of Defence (2013): the Supreme Court held that the doctrine of combat immunity
(which excludes liability for negligence in relation to military combat) should be construed narrowly. The claimants,

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who represented UK soldiers killed on active service in Iraq, claimed that the Ministry of Defence had been negligent in
the provision of equipment and training. The court recognised that decisions taken by military commanders in relation
to military engagements should not be subject to JR, because of the danger of 'judicialising warfare'. It did not,
however, accept the Ministry's arguments that immunity should apply in relation to failings that were remote from the
pressures and uncertainties of the battlefield.

Membership of the armed forces

 The most notable case relating to this area of the prerogative has been R v Ministry of Defence, ex parte Smith (1996)
(Note that this case was later heard in Strasbourg as Smith & Grady v UK.)
 This was a challenge to the MoD's policy at that time of not allowing homosexuals to be employed in the armed forces.
Smith and three others had been summarily dismissed from the armed services for no other reason than their
sexuality. They claimed that the decision to do so was unreasonable/ irrational
 In the Court of Appeal, Sir Thomas Bingham MR acknowledged the well-trodden competence concerns but clearly
considered that the court had a role to play in a matter that had a profound effect on the livelihood and employment
rights of the four individuals who had been dismissed.
 “It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor
has it the expertise to do so. But it has the constitutional role and duty of ensuring that the rights of citizens are not
abused by the unlawful exercise of executive power” – Lord Bingham
Colonial Governance (British Overseas Territories)
 One of the more esoteric areas of policy in which prerogative power is still relevant
 R (Bancoult) v SoS for Foreign and Commonwealth Affairs [2008]: concerned the Chagossian people, the indigenous
inhabitants of the British Indian Ocean Territory ('BIOT'), who had been removed from their home islands in the 1960s
and 1970s, so that the main island, Diego Garcia, could be used as a United States military base.
 In the Court of Appeal, which found for Bancoult, Sedley LJ stated that: 'the prerogative power of colonial governance
enjoys no generic immunity from judicial review'
 This issue has been the subject of protracted litigation and considerable criticism academically, as well as disagreement
within the judiciary – it is notable that there was only a 3-2 majority judgment in the end in favour of the Foreign
Secretary in the House of Lords, with Lord Bingham finding against the government.
 The majority effectively deferred to the government in stressing that it was a matter of executive competence as to
what was conducive to the 'peace, order, and good government of the BIOT', as required in the original Order in
Council which established the Territory in 1965.
 Nevertheless, it was significant that this highly contentious political decision was seen as justiciable in spite of
predictable government arguments to the contrary

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Parliamentary Sovereignty (Parlsov)

HISTORY & BACKGROUND
 So-called ‘Glorious Revolution’ of 1688 marked the most significant long-term turning point in English
constitutional history – coup of James II + replacement with William III = end of absolutist monarchy
 Reflected in key provisions of the Bill of Rights 1689 and later in Act of Settlement 1701
 These founding pieces of legislation enshrined the sovereignty of Parliament as an institution
 Monarchs thereafter couldn’t dispense with laws – statute (made by Parliament became) highest form of law
 Evolution from absolutist – constitutional monarchy = gradual (country remained an oligarchy for a while)
 There were three electoral Reform Acts in the 19th century, during which time the franchise expanded
gradually, but it was not until 1928 that all men and women (over 21) could vote on an equal basis.
 Though doctrine of parliamentary sovereignty is usually associated with Dicey's writings in 1880s, it was not
until the 20th century that one could say that the principle was directly linked to the ideal of a full democracy.

Dicey’s theory
 In his Introduction to the Study of the Law of the Constitution (1885) Professor A.V. Dicey stated that:
o 'Parliament thus defined has, under the English Constitution, the right to make or 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.'

Components of Dicey's theory

 Three key elements can be isolated:
1. Parliament is the supreme law-making body.
2. No Parliament may be bound by a predecessor or may bind a successor.
3. No person or body may question the validity of an enactment of Parliament.

(1) Supreme law-making body

 Dicey means here that there are no substantive limitations on the legislation that Parliament may enact (he is referring
to the absence of any legal limitations – he acknowledged that there are clearly political limits on what it can do.)
 There are a number of ways in which this aspect of Dicey's theory can be illustrated in practice.
 E.g. Parliament can pass legislation that affects or alters part of the constitution. It did this, for instance, when it
disestablished the Church of Ireland by passing the Irish Church Act 1869.
 ex parte Canon Selwyn (1872), the court dismissed a challenge to the validity of this Act based on an argument that it
was contrary to the Act of Union with Ireland (1800)

No substantive restrictions on Parliament

 Parliament can also legislate contrary to fundamental rights (though note the effect of the HRA since 2000).
 Lord Hoffmann made this point in 2000 in the ex parte Simms case when he set out his so-called 'legality principle'.
 There can be consequences if Parliament takes such action but it can do so, if there is a majority to pass such legislation.
 Parliament can also legislate contrary to international law – there are instances, such as in the cases of Mortensen v
Peters and Cheney v Conn where the UK courts have clearly enforced the UK statute rather than international law.
 Parliament can pass legislation that has retrospective effect, even though this is not seen as desirable in rule of law
terms. Examples include the War Damages Act 1965 and the War Crimes Act 1991

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(2) No entrenchment (constitutional safeguard in UK)

 Absence of entrenchment = no Parliament may be bound by a predecessor or bind a successor,
 The UK's uncodified constitution does not possess any formal arrangements to entrench its constitutional fundamentals.
This is unlike the vast majority of other democratic states, which tend to have mechanisms (of varying strength) which
are designed to make it harder to change constitutional basics and law than it is to change ordinary law.
 In the UK, the constitution can potentially be drastically changed by a single Act of Parliament. This could happen
through new law or repeal of existing law. In the UK repeal can take an express or implied form.

Express repeal
 Occurs when legislation is passed that expressly states an intention that an earlier Act should be replaced
 E.g. the Interception of Communications Act 1985 was expressly repealed and replaced by the Regulation of
Investigatory Powers Act 2000.
 Express repeal often happens when there is a drive to consolidate and simplify legislation, e.g. the Sex Discrimination
Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 were all expressly repealed and
replaced by the Equality Act 2010.
 Implied repeal operates on a more subtle level and is a key feature of the second element of Dicey's theory on
sovereignty

Implied repeal
 This comes about (in the absence of express repeal) if a new Act is partially or wholly inconsistent with a previous Act
 If so, the previous Act is repealed to the extent of the inconsistency.
 This is known as implied repeal because Parliament is deemed to have implicitly intended the later Act to repeal the
earlier one in this situation. This implicit intention arises from a presumption that Parliament would not intend two
incompatible statutes to be given effect at the same time - it would intend to give effect to the later statute, as this is the
most recent expression of its will.
 The courts will only draw the implication that Parliament intended to repeal an earlier statute where two statutes are
irreconcilable.

Effect of implied repeal

 The significance of implied repeal for parliamentary sovereignty is that Parliament cannot bind its successors so as to
prevent a statute from being impliedly repealed by a later one which is incompatible with it.
 Implied repeal is a reflection of the traditional view that sovereignty takes a 'continuing' form, and that each new
Parliament (with a fresh mandate) should have equal freedom of manoeuvre in creating new legislation
 The theory was borne out in the cases of Vauxhall Estates v Liverpool Corporation [1932] and Ellen St Estates v
Minister of Health [1934], which both involved compensation for landowners whose property had been compulsorily
purchased under legislation passed after the First World War

Vauxhall, and Ellen Street Estates

 In both cases, the defendants were told that their compensation was to be assessed according to the terms of the
Housing Act 1925. They argued, however, that the assessment should be calculated according to the (more generous
terms) of the Acquisition of Land Act 1919. The 1919 Act had expressly stipulated that its provisions were to prevail over
any other statutes (thereby trying to prevent future implied repeal).
 The courts denied that the 1919 Act was intended to have that effect but, significantly, they added that, even if this had
been the intention, the 1919 Act still could not have prevented the 1925 Act from impliedly repealing it, as Parliament is
not able to bind its successors. The terms of the later 1925 Act were therefore applied.
 (A more modern and significant proviso to this part of the theory, as set out by Laws LJ in the Thoburn case,)

(3) Validity of Acts of Parliament

 3rd limb of Dicey's theory follows naturally from the basic doctrine that law created by Parliament is supreme
 Rests on the notion that Acts of Parliament are the highest form of law, so neither the manner in which legislation is
passed, nor the substance of the law, should be reviewable by the courts.
 Unlike in many other democratic states, therefore, the UK courts are not able to quash or invalidate primary legislation,
even if this legislation might be deemed 'unconstitutional' or contrary to international law standards.
 This also means that Diceyan theory does not allow for judicial review of any alleged procedural irregularity in the
way that statute had gone through Parliament during the legislative process.

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Enrolled Bill rule

 This 'rule', applied historically by the courts, effectively means that if a bill has been enrolled - i.e. it has become an Act
of Parliament – it is impossible to go behind that
 Any departure from normal procedure during the passage of the bill cannot be corrected by the courts.
 This approach was evident in two significant cases: Edinburgh and Dalkeith Railway v Wauchope (1842) and Pickin v
British Railways Board [1974]. In the latter case, Lord Morris said:
o 'When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the
courts there may be argument as to the correct interpretation of the enactment: there must be none as to
whether it should be on the Statute Book at all.'
LIMITATIONS ON PARLIAMENTARY SOVEREIGNTY
 The essence of Dicey's theory = the Westminster Parliament has unlimited legal powers.
 No substantive or procedural limitations can in theory therefore apply to its legislative powers.
 In the intervening years, however, a number of legal and constitutional developments have taken place and a
number of challenges have been brought to the courts which have arguably diluted the purity of Diceyan
doctrine.
 Note this area is controversial and remains politically highly contentious – concerns about sovereignty have
formed the theoretical backdrop to many significant political trends, including the UK's recent separation from
the EU.
 The sovereignty of the Westminster Parliament could arguably be limited by:
o Parliament divesting itself politically of areas once under its own authority
o Devolved legislation
o “Practical politics” (per Lord Denning in Blackburn v AG)

Procedural limitations
 Issue that has arisen = whether it is possible for Parliament to introduce procedural requirements to make it harder for
subsequent parliaments to change the law, for instance by requiring prior popular approval for repeal in a referendum.
 This idea is what is known as entrenchment by 'manner and form'.
 The orthodox Diceyan view is that, while a parliament could pass a statute that required a special procedure for its
amendment or repeal, this requirement would not be binding on a successor parliament.
 Additionally, the courts would not consider a challenge to the subsequent incompatible statute because of the 'enrolled
bill rule' laid down in Pickin v British Railways Board.
Commonwealth cases
 There has been academic argument over this issue, however, inspired initially by the Privy Council case of Attorney
General for New South Wales v Trethowan (1932)
 Concerned the legislature of New South Wales, which had originally been created by the UK Parliament in 1823.
 In 1929, legislation was passed in New South Wales which prohibited the abolition of the upper chamber of the
legislature without referendum approval. The following year, the legislature passed two Bills designed to abolish the
upper chamber without holding the required referendum. The Privy Council granted injunctions preventing royal
assent from being granted to the Bills because they had not been passed in the correct manner.
 Critics of the manner and form argument have pointed out that the New South Wales legislature was a creation of the
UK Parliament and was subordinate to it. It was not a sovereign legislature and so its legal position was quite different
from that of the UK Parliament itself.
 The possibility of manner and form entrenchment only therefore seems to apply – according to this reasoning – to
subordinate legislatures, such as the devolved assemblies in the UK.
 Arguments have persisted, however, and the issue came to the fore again with the European Union Act 2011, which
introduced a 'referendum lock'. This was a statutory framework requiring a referendum to be held before further
amendments could be made to the founding Treaties of the EU. The referendum lock provision in the Act seemed to
extend this pledge beyond the life of that Parliament by creating a manner and form requirement.
 (Note, however, that the status of the lock was never tested in the courts before the UK left the EU.)
 The debate over the possibility of procedural limitations on Parliament's powers has continued in some significant obiter
discussion in the higher courts.
 In Thoburn v Sunderland City Council (2002) Laws LJ asserted that “Parliament… cannot stipulate as to the manner and
form of any subsequent legislation”.
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o 'If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the
consent of the Upper House, [i.e. via the Parliament Acts] it may very well be that it can also redefine itself
upwards, to require a particular parliamentary majority or a popular referendum for particular types of
measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when
that will had been expressed'.
Legislative independence
 One of the most notable historical challenges to the notion of Westminster omnipotence = the ending of Empire and
partial erosion of the Union (of the UK).
 There has always been a different conception of the powers of Westminster in Scotland to that held in England and
Wales. See for example the approach taken by the Scottish judiciary in cases such as MacCormick v Lord Advocate
 The theory behind this was that the Acts of Union were not created by the UK Parliament but by the original English,
Scottish and Irish Parliaments. Hence, the Acts created a new UK Parliament that did not have unlimited sovereignty but
was limited by its founding constitutional documents. In the words of Professor J. Mitchell, the new Parliament was
'born unfree'.
The ’Dominions’
 Starting with Canada (in 1867) and subsequently (in 1901 and 1907 respectively) with Australia and New Zealand,
Dominion status was given to recognise a number of semi-independent states under the British Empire.
 The Dominions' constitutions were established by UK Acts of Parliament. A constitutional convention developed that no
new UK Act affecting a Dominion would be passed without the request and consent of that Dominion - in recognition of
their autonomous status.
 This was confirmed in s4 of the Statute of Westminster 1931, which required there to be a recital in the relevant
legislation of the request and consent from the Dominion.
Impact on Westminster sovereignty
 The political reality of the autonomy (and subsequent complete independence) granted to the Dominion nations
subsequently caused significant conceptual challenges to the original Diceyan doctrine of parliamentary sovereignty.
 In granting Dominion status to the three original countries (and subsequently six others) the Westminster Parliament
had effectively legislated to reduce its own sphere of political authority.
 In UK terms the most significant development was the granting of Dominion status to the new Irish Free State in 1922,
(subsequently the Republic of Ireland from 1949), comprising all the island of Ireland except the six north-eastern
counties of Northern Ireland.

Legal authority of Westminster?

 The problem for the courts since these developments has been reconciling the undoubted political diminution of
Westminster authority with the orthodox legal principle in Dicey's theory.
 Some judges have been at great pains to state that political change has not diminished the unlimited legal authority of
Parliament – see, for example, Megarry VC in Manuel v Attorney General (1983)
 Others have emphasised that political and legal authority operate on entirely different planes, as Lord Denning put it in
Blackburn v Attorney General (1971), a case concerning UK membership of the (then) E.E.C:
o 'We have all been brought up to believe that, in legal theory, one parliament cannot bind another and that no
act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of
Westminster 1931 ... Can anyone imagine that Parliament could or would reverse that statute? Take the Acts
which have granted independence to the Dominions....Can anyone imagine that parliament could or would
reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken
away. Legal theory must give way to practical politics.'

Impact of Devolution
 One cannot directly compare the degree of autonomy given to Scotland, Wales and Northern Ireland to the more
significant semi-independence given to the Dominion countries in the late 19th/ early 20th centuries.
 In the past, autonomous powers given by Westminster have been suspended or taken away. For instance, 'Direct rule'
from Westminster was imposed on Northern Ireland from 1972 to 1998, after the province had been run by its own
'Government' in Stormont from 1921.
 Significant layers of local government have also been abolished – notably the Thatcher government's abolition of the
GLC (Greater London Council) in 1986.
 Nevertheless an argument can be made that, in the absence of more dramatic political events (as occurred in N.
Ireland), the political acceptance of devolution in Scotland and Wales means that it is very difficult to see how the

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original devolution would be reversed. This is even more the case given the political direction of travel of the policy - i.e.
towards enhanced devolution, and in Scotland's case the possibility of a further independence referendum.
 This is of course a political limitation on the authority of the Westminster Parliament rather than a legal one –
Parliament could still 'unmake' this law and any other in Diceyan theory – but in practical terms it arguably takes the
orthodox theory into abstract territory.

THE EU AND PARLIAMENTRY SOVEREIGNTY

 The orthodox Diceyan theory on parliamentary sovereignty is based on the idea that the legal authority of the
Westminster Parliament is unlimited.
 However, over time Westminster has given away political authority to newly independent nations and
arguably diluted it in respect of the devolution arrangements within the UK.
 It's also crucial to assess how the 47-year experience of the UK's membership of the European Union ('EU')
and its predecessor bodies has impacted on the doctrine of parliamentary supremacy.
 Though this membership is now at an end, it will also continue to have a significant future bearing on
constitutional law in the UK.

UK as a ‘dualist’ state
 ‘Monist’ states = domestic and international law obligations operate on same plane
 ‘Dualist’ state of UK = distinction between the two sources of law
 Domestic law has a higher status in the UK legal system as this is created by the sovereign Parliament
 If Parliament wishes international legal systems to be enforced, it needs firstly to ‘incorporate’ this body of external law
into the UK legal system by passing a statute
 This is what was done in 1972 with the passing of the European Communities Act (‘ECA’)
 Similar process occurred in 1998 with passing of the Human Rights Act, which incorporated the ECHR
EC/EU obligations
 UK signed the Treaty of Accession in 1972 – became full member of the European Communities (now European Union)
 In order to incorporate the Treaty of Rome 1957 into domestic law, Parliament passed the ECA 1972
 Since then a number of other treaties have modified or amended the original Treaty. This includes the Maastricht Treaty
which first established the European Union.
The ECA 1972
 Three key provisions in the ECA in relation to sovereignty

s2(1) gave effect to EU law within the UK – it provides that:

 “'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under
the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as
in accordance with the Treaties are without further enactment to be given legal effect or used in the United
Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly…

s3(1) Jurisprudence
 Questions-of law relating to the EU should be determined according to the principles laid down by the
European Court of Justice (ECJ) – this gave effect to the case law of that court (more recently known as the
Court of Justice of the European Union (CJEU)
 Most significant principle of EU law = ‘primacy’ of EU law: the supremacy of EU law over domestic law
 Established in Costa v E.N.E.L (1964): EU law cannot be overridden by the national law of the Member States.
In the event that the two are in conflict, EU law must prevail

s2(4) Primacy of EU law (this schedule sought to accommodate the primacy of EU law more specifically)
 “…any enactment passed or to be passed shall be construed and have effect subject to [EU Law].’
 Application of this section = relatively straightforward to any UK statutes enacted before the ECA 1972
 The doctrine of implied repeal operated to ensure that any pre-1972 statutes, which were incompatible with
EU law, would be overridden by the ECA itself, thereby satisfying both the demands of EU law and those of

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parliamentary sovereignty
 However, s2(4) ECA also required any statutes enacted after 1972 to have effect subject to EU law
 This created a clear tension with the principle of parliamentary sovereignty as it appeared to run counter to
the principle in Vauxhall Estates and Ellen Street Estates that Parliament cannot bind itself so as to prevent a
later statute from impliedly repealing an earlier statute
 Raised the question of whether s2(4) could have the effect of enabling EU law to override subsequent statutes
 Did it mean that implied repeal was no longer relevant in the context of EU law? Had the 1972 Parliament
bound future parliaments?

Early case law

 The period from UK accession – late 1980s offered no final resolution of these difficult questions
 In a series of cases – many in relation to employment rights – the UK courts continued to show some allegiance to
traditional notions of parliamentary sovereignty but largely managed to resolve issues by applying a presumption that,
whenever it passed legislation, Parliament was intending to comply with EU law. Any inconsistency between the two
sources of law could be put down to oversight by the draftsman
Macarthys The Court of Appeal accepted that, by virtue of ss2(1) + 2(4), EU law would take precedence over the
Ltd v Smith relevant statute, if it proved to be inconsistent with that statute
(1979) The claimant, Ms Smith, was a factory employee of the defendants, Macarthys, for which she received a salary of £50
per week. She complained that the man who had previously held the same job in the company had received £60 per
week, and thus that the defendants were in breach of both the British Equal Pay Act 1970, as well as Article 119 of the
EC Treaty. The defendants contended that the domestic statute was inapplicable as it did not provide for comparisons of
salary with former employees to which Ms Smith responded that this did not negate the applicability of EC law in which
comparisons were permitted. Further, Ms Smith submitted that where UK and EC legislation was incompatible on the
matter, EC law would prevail.

Factortame
 The relative finesse of this approach, based on a purposive approach to statutory interpretation - the purpose being to
achieve harmony where possible between EU law and existing UK law – was of no assistance, however, in a landmark
case heard in 1990.
 This involved a dispute between the Secretary of State for Transport and a number of companies, headed by Factortame
Ltd, over the application of restrictive provisions in the Merchant Shipping Act 1988.
 The UK government had introduced this legislation specifically to cut back on a practice known as "quota hopping"
which was seen as damaging to the UK's national fishing industry, as it allowed foreign-based ships to take advantage of
UK fish quotas, if the companies were registered in the UK.
 The applicant companies, which were incorporated under UK law, owned 95 fishing vessels – mainly owned/managed by
Spanish nationals, but their vessels had previously been registered as British under an Act of 1894.
 When law changed with passing of the Merchant Shipping Act ('MSA') 1988, these vessels had to be re-registered.
 The applicants’ vessels failed to qualify under the new regime because they were largely managed and controlled from
Spain. The companies therefore sought to challenge the legality of the relevant new statutory provisions on the ground
that they contravened the provisions of the EEC Treaty and other aspects of EU law, as incorporated by the ECA 1972.
 Unlike in the earlier line of cases, where it had generally been possible for EU law and UK law to be harmonised, this was
not an option in relation to the MSA 1988.
 The new statute operated in direct contravention of key principles in EU law, notably freedom of establishment.
 Initially, the law lords refused the granting of interim financial relief to the companies, as they did not believe they had
jurisdiction in the circumstances where domestic law appeared to preclude it.
 The matter was then referred to the ECJ for a ruling.
R v Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) (1991)
 Following the ECJ's response to the reference, the law lords convened to give the key judgment
 This case is one of the most important in UK constitutional law.
 It established that the courts could now suspend an Act of Parliament where they were required to do so by EU law.
 This caused a degree of political consternation at the time. However, Lord Bridge insisted that the principle of the
supremacy of EU law was well established by the time that the UK had joined and that, in enacting the ECA 1972
Parliament had 'voluntarily' signed up to a ‘limitation' on its own sovereignty
Post-Factortame
 Factortame put it beyond doubt that EU law could override or 'disapply' conflicting UK statutes enacted after 1972.
Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even

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without a reference to the ECJ.

 The ability of the courts to do this was made clear in R v SoS Employment, ex parte Equal Opportunities Commission
[1995], a case involving the rights of part-time workers under the Employment Protection (Consolidation) Act 1978.
 As part-time workers were predominantly female, the EOC argued that the statute indirectly discriminated against
women contrary to EU law. The House of Lords agreed and granted a declaration to that effect. As a result, industrial
tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if
they had completed two (rather than previously, five) years employment.

‘The Metric Martyrs’ – Thoburn v Sunderland City Council (2002)

 This case involved market traders - the self-named 'Metric Martyrs' - who were convicted for using imperial measures
(i.e. pounds and ounces) contrary to legislation enacted to implement a European directive.
 They alleged in their appeal that the ECA 1972 (through which the directive had been implemented into UK law) was
incompatible with the later Weights and Measures Act 1985 (allowed for use of both metric/imperial measurements)
 Their point was that the 1985 Act impliedly repealed the relevant aspect of the ECA 1972.
 On the facts Laws LJ found no incompatibility, but he proceeded to make a number of obiter points which have been
very influential in the modern debate over sovereignty.

Laws LJ
 Laws LJ's contribution to the debate centred on the reasons for why the Diceyan doctrine of implied repeal no longer
seemed to operate in relation to cases such as Factortame.
 He concluded that EU law was able to prevail over incompatible domestic statutes because an exception had been
created to the doctrine of implied repeal.
 He saw this to be a reflection of the existence of a hierarchy of statutes – these could be divided into 'ordinary' statutes
and 'constitutional' ones.
 These had certain key features and included: the ECA 1972 and other very significant statutes such as the Human Rights
Act 1998, the devolution Acts of 1998, the Bill of Rights 1689 and the Parliament Act 1911.
o ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a
Constitutional Act… the court would apply this test: is it shown that the legislature’s actual – not imputed,
constructive or presume – intention was to effect the repeal or abrogation? I think the test could only be met by
express words in the later statute, or by words so specific that the inference of an actual determination to effect
the result contended was irresistible’
 This theory, which has been judicially approved elsewhere, for instance in the Miller (1) case, moves the debate away
from orthodox ground, therefore, as it clearly conflicts with Dicey's view that all statutes had equal status.
Reflections on ECA and sovereignty
 UK departure from EU: impact on parliamentary sovereignty was a significant but temporary one.
 The fact that the courts enforced principles of EU law over domestic statutes – illustrated most notably in Factortame –
shows that it is possible for one parliament (in 1972) to have bound future parliaments in a substantive way.
 The UK’s near half-century membership of the EU has presented a challenge to the Orthodox Diceyan theory which
informs the doctrine of parliamentary sovereignty
 However, the binding effect only lasted for as long as Parliament – as a continuing institution – wished to be bound by it.
And the parliament elected in December 2019 did not...
 Ultimately, therefore, Parliament can impose limitations upon itself, but the principle remains, because it cannot prevent
future parliaments removing those restrictions (assuming, of course, that it is still politically possible to do so.)

IMPACT OF THE HRA 1998 ON PARLIAMENTARY SOVEREIGNTY

 The HRA incorporated the ECHR (European Convention on Human Rights) into UK domestic law (in a very
similar way to what happened in 1972 with ‘EU law’
 Shows again how in the UK’s dualist system, a body of international law has to be brough within the domestic
system by the passing of statute
 Design of the HRA = an accommodation between stronger rights protection + parliamentary sovereignty

Key sections of the HRA

s2 Interpretation of ECHR rights
 Any "court or tribunal determining a question which has arisen in connection with a Convention right must take
into account" the jurisprudence of the European Court of Human Rights (in Strasbourg) "so far as, in the opinion

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of the court or tribunal, it is relevant to the proceedings in which that question has arisen".
 EARLY DAYS: “mirror principle” developed in R (Ullah) v Special Adjudicator (2004) (strong direction)
 MORE RECENTLY: 'dialogue' between UK courts and the ECHR – the courts have been bolder in arguing for a
development of the law that preserves the autonomy of English law in situations where jurisprudence from
Strasbourg may be less relevant or attuned to the particular nature and culture of the common law system.
 This approach has been taken in R v Horncastle [2009] and R (Haney) v SoS for Justice [2014]
 Assertions made that the UK higher courts have lost autonomy at the hands of Strasbourg seem therefore to have
been over-played.

s3 Interpretation of legislation
“… 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 convention rights”
 It therefore applies a strong obligation on UK courts to strive to interpret existing legislation in an ECHR
compatible way (most controversial provision in eyes of those who have concerns of orthodox sovereignty)
 The issue in relation to s3 has been whether in practice this interpretive power has given the judiciary the ability
to over-ride the apparent intention of Parliament when it passed the original legislation.
 Concerns on this score were heightened after the first major case reaching the higher courts on this point – a
criminal law case, R v A (Complainant's Sexual History) [2002], in which the Defendant claimed that his Article 6
rights to a fair trial were compromised by very restrictive provisions that had been introduced in s41 of the Youth
Justice and Criminal Evidence Act 1999 ('YJCEA').
 These had the apparent effect of preventing him from bringing in any evidence about the complainant's past
sexual history, which he needed to do in order to put forward his defence of consent.
 Lord Steyn emphasised that the interpretative obligation in s. 3(1) of the HRA 1998 was a strong one. He gave
effect to this by reading a new provision into s. 41 of the 1999 Act that evidence or questioning, which was
required to ensure a fair trial under Article 6 of the ECHR, should not be treated as inadmissible.
 In subsequent cases – which will be considered in Public Law II – the courts have confirmed Lord Steyn's view that
in some circumstances it may be necessary for a section 3 interpretation to be made that appears to conflict with
parliamentary intention. However, the courts have stressed that this is only appropriate where the interpretation
does not go 'against the grain' of the underlying policy and scheme of the original legislation.
 s3 gives courts a powerful interpretive tool that goes beyond modern forms of purposive statutory interpretation
 The HRA has a higher status than an “ordinary statute”
s4 Declarations of incompatibility
s4(2): “If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a declaration of
incompatibility.
 On face value this power seems to allow the courts to evaluate statutory provisions and therefore looks
equivalent to the kind of 'strike down' powers that are available to supreme courts in other democratic states.
 IMPORTANT: declaration of incompatibility has a political rather than a legal effect. It does not invalidate the law
that has been deemed incompatible – see section 4(6) HRA. It merely flags up the fact that it is incompatible. It is
then a matter of political judgement for the relevant minister as to how to react.
 s3 or s4 are effectively alternative powers that the court can utilise if incompatible legislation appears to have
facilitated the violation of an ECHR right.
 When a declaration is made under s4, this is seen as a significant intervention and, in most instances, the
politicians do take steps to remedy the incompatibility in the law (though they are not compelled to.)
 One of the most notable examples of use of s4 we have seen so far was in the Belmarsh case [2004], following
which the government did re-evaluate its anti-terrorism policy.
 Some academic thinkers have even categorised s. 4 as a mechanism which achieves an indirect form of
constitutional review of legislation (in practical reality rather than in absolute terms.)
s6 Enforcement of rights (and ‘statutory defence’)
s6(2): the defence that public authorities can plead to a claim that they have violated an individual’s ECHR rights
 This defence is effectively that the authority was obliged or allowed to violate an ECHR right because of the
operation of incompatible legislation (which it has not been possible to make compatible using section 3 powers.)
If all violations were automatically unlawful, then that would of course have had a considerably greater effect on
Dicey's theory.
Ultimate effect of HRA?
 There is some debate therefore over the effect of HRA on the orthodox theory, as matters stand.
 However, in ultimate terms, as has been shown with Brexit, it is perfectly possible for Parliament to undo what the 1998

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Parliament did.
 For as long as the HRA remains in place, it will have a dominant effect as a 'constitutional statute'. But its effect will only
be evident for as long as subsequent parliaments wish it to and, clearly, there has already been considerable debate
about whether the Act should be repealed.
 It is strongly arguable that the HRA does not fundamentally undermine the basic supremacy of Parliament as a
continuing sovereign institution.

PARLIAMENTARY SOVEREIGNTY AND THE COMMON LAW

 The traditional Diceyan theory of parliamentary supremacy has come under pressure over the last half-
century as a result of several significant legal and political developments.
 These have been brought about by Parliament itself through the passing of reforming constitutional
legislation. In other words Parliament has imposed limitations upon itself as an institution which are binding
but only for as long as subsequent Parliaments wish them to be.
 However, other developments have taken place in the common law sphere that have arguably also had the
effect of modifying the purity of Diceyan doctrine.

‘Principle of legality’
 Rule of Law: modern judiciary has sought to protect rights/freedoms through interpretating legislation
 R v SoS Home Department ex parte Simms (2000): Lord Hoffmann referred to principle of legality:
o “Fundamental rights cannot be overridden by general/ambiguous words […] In the absence of express language
[…] the courts presume that even the most general words were intended to be subject to the basic rights of the
individual”

Statutory presumption
 Hoffmann's statement established a balance between two key constitutional principles (tension between them)
 He recognised that Parliament is able to enact laws which undermine fundamental rights (parliamentary sovereignty)
 However, he made the crucial proviso that, if Parliament wishes to do this, it must state its intention in crystal clear
terms. Otherwise the courts will apply the strong presumption that Parliament did not intend to restrict rights.
 One can see this therefore as a very mild form of entrenchment of fundamental rights – cannot be casually set aside
 If a government wishes to restrict rights, it has to set out its legislation in Parliament in a completely transparent way,
and it has to accept any "political cost" for doing so.
Debatable whether these principles are applied in a way that is only a “little different” from other democratic states with
codified constitutions (qtd. from Hoffman). However one can see here the subtle way in which the judiciary seeks to
exercise a real influence over the implementation of the law
Exclusion of court jurisdiction
 The courts’ own rights to determine judicial review challenges = notable way in which the courts have modified the
application of legislation in order to protect rights
 There have been legislative attempts to "oust" the courts' rights to scrutinise governmental actions and decisions
through judicial review.
 "Ouster clauses" are sometimes included in legislation in order to try to prevent decisions made using the relevant
statutory powers being reviewed in court.
 The courts' attitude towards these has been universally hostile and has been evident since the late 1960s since the
leading case of Anisminic.
Anisminic v Foreign Compensation Commission (1969)
 s4(4) of the Foreign Compensation Act 1950 provided that: "The determination by the commission of any application
made to them under this Act shall not be called in question in any court of law".
 Anisminic Ltd. wished to challenge a decision of the FCC on the basis that it had misconstrued the legal effect of the
statutory framework under which it operated. The law lords held that the ouster clause did not prevent it from
challenging the FCC's decision. Lord Reid stated that:
o "It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed
strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning
shall be taken which preserves the ordinary jurisdiction of the court."
Ouster clauses – and sovereignty
 Subsequent history of governmental attempts to include ouster clauses in legislation has been a generally fractious one.
 The courts see ouster clauses as an affront to its constitutional purpose of holding the Executive to account, and, as in

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Anisminic, they have tended to use highly purposive forms of statutory interpretation to bypass the apparent intention
of Parliament in the original legislation.
 This approach is illustrated in cases such as R v Home Secretary, ex parte Al Fayed [1997] and, more recently, in R
(Privacy International) v Investigatory Powers Tribunal [2019]
 Extra-judicial disapproval of the tactical device of ouster clauses also tends to be vociferous, notably during debate over
the Asylum and Immigration (Treatment of Claimants) Bill in 2003-4.

Legality principle expanded

 The legality principle was not established in the Simms case, even though it is usually associated with it, given the
significant influence of Lord Hoffmann's speech.
 It can be traced to a series of cases in the 90s, starting with R v Secretary of State for the Home Department, ex parte
Leech (No 2) [1994] which concerned prison rules permitting the interception of legal correspondence between a
prisoner and his lawyers.
 The Court of Appeal held that these interfered with a constitutional right to the free flow of communications between a
solicitor and a client about contemplated legal proceedings. And it also made clear that this interference could only be
authorised by express words in the statute or by necessary implication.
 This approach was also used in R v Lord Chancellor, ex parte Witham [1997] to challenge the scale of court fees set by
the Lord Chancellor under the authority of a statutory instrument.
 Witham wished to sue for defamation but could not afford the court issue fee of £500, as he was unemployed
 He sought judicial review of the Lord Chancellor's decision in setting the court fees. He argued that his right of access to
the court was being denied by the scale of fees and the court's refusal to waive them.
 It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a
fundamental right, was denied. The statutory instrument was declared to be ultra vires the Act.
Common law constitutionalism
 The courts in recent years have been developing a body of principle known as 'common law constitutionalism'
 Arguably represent a way in which the judiciary seek to modify and temper the potentially more alarming consequences
of a system built on Dicey's theory of unlimited parliamentary supremacy.
 The modern line of cases have effectively created a parallel route for rights protection, operating alongside the more
formal enforcement process created by the HRA 1998. (Some have speculated that this represents a form of judicial
'insurance policy' in the event that the HRA is repealed in future...)
 There have been several very significant cases over the last decade or so that can be placed under this broad banner.
 Critics of judicial 'activism' would point to them as examples of judicial overreach distorting apparent parliamentary
intention. Supporters would point to the vital role of an independent judiciary developing principles that are designed to
maintain and promote constitutional safeguards and to ensure that government is held to account.
 There is nothing new as such in the courts developing basic legal principles in public law any more than in private law.
The basic 'grounds' of JR – ideas such as fairness and 'reasonableness', as well as legality – have been created by the
courts. However, recent case law has arguably expanded the base.
Osborn v Parole Board (2013)
 One of the most notable of these cases involved decision from Lord Reed in this case
 He held that the Parole Board had acted unlawfully in failing to allow oral hearings for three prisoners when important
decisions were being taken about their release or recall on licence.
 Though the challenge to the Board had been based on article 5(4) ECHR, Lord Reed stated that the HRA did not:
o “supersede the protection of human rights under the common law or statute or create a discrete body of law
based upon the judgments of the European Court. Human rights continue to be protected by our domestic law,
interpreted and developed in accordance with the act when appropriate".
 Effectively Lord Reed was developing on the well-established existing principle, evident in the common law since the
1960s, that administrative bodies such as the Parole Board had an obligation to act fairly to those about whom they
were making important decisions.
 In relation to the details of this case he set out a general rationale for an extension of the duty of fairness in relation to
personal involvement of prisoners in the decision-making process that affected them and their future lives.
 Meant that the participation of prisoners in personal hearings was expanded, based on the principle that involvement in
the process by those affected was an important personal right in itself, and was significant too in promoting
accountability and transparency in government more generally.
Access to and independence of the courts
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very significant decisions in recent years on the basis of key constitutional principles.
 ACCESSABILITY: R (Unison) v Lord Chancellor [2017] the Supreme Court found that a new fees regime for employment
tribunals was unlawful, partly on the basis of a constitutional right of access to the courts and tribunal system – often
known as 'access to justice'. This was seen as inherent to the rule of law.
 INDEPENDENCE: R (Evans) v Attorney General [2015] the constitutional principle was a broader one – the UKSC found
that the Attorney General had "contradicted the fundamental principle that a court's decision could not be ignored or
set aside by anyone, including the executive, and that the executive's actions were reviewable by the court.”
Openness and transparency
 The constitutional importance of transparency and open justice – what Lord Mance called the “common law
presumption in favour of openness” -was a key feature of the case of Kennedy v. The Charity Commission [2014]
 The case concerned a journalist's Freedom of Information Act request in relation to a charity set up by the controversial
politician, George Galloway.
 The court's view was that it was the role of the judiciary, through the common law, to determine the application (or
otherwise) of disclosure requirements in light of the above common law presumption.
 Here again one can see the centrality of common law constitutional principles in determining such an issue.
Jackson v Attorney General (2005)
 Most significant case which has highlighted and explored the potential friction between the principles of parliamentary
supremacy and the rule of law
 The fact that this case went all the way to the House of Lords (and was determined by a full judicial panel) is highly
significant in itself, as Jackson's argument was essentially that an Act of Parliament was invalid.
 This represents a radical proposition in Diceyan terms, given earlier firm adherence by the courts to the 'enrolled bill
rule' in cases such as Pickin v British Railways Board
 Jackson's case (as the Chairman of the Countryside Alliance) was that the Hunting Act 2005 – which banned fox-hunting
– was invalid, as had been passed under the accelerated procedure laid down in the Parliament Act ("PA") of 1949.
 Argued the 1949 Act was invalid as the House of Commons alone had amended the original Parliament Act of 1911.
 He argued that this was not permissible because there was an implied exception to the use of the procedure set down in
the 1911 Act, which originally established an accelerated process for passing legislation that could involve bypassing the
House of Lords.
 This exception, he said, meant that a “delegate body” (i.e. a Parliament comprising only the Commons) could not
increase its own powers on its own authority. It had not been able to do so, he reasoned, in 1949 and so the 1949 was
effectively null and void.
Obiter
 The law lords did not accept the main arguments put forward by Jackson – they found that the 1949 Act was a valid form
of legislation and so the Hunting Act/other Acts passed under terms of the 1949 Act procedure were also valid
 However, in developing a number of obiter points, the court arrived at some more challenging ideas on the relationship
between courts and Parliament.
 Initially, as a spin-off from Jackson's argument about an 'implied exception' to the use of the PA procedure, the majority
of the law lords made an important point about an implied exception that they thought existed. This related to the
democratic safeguard that had been written into the original PA 1911.
Democratic safeguard?
 The issue mooted was whether it would be possible for a future HoC to extend its own lifetime (beyond 5-year limit) by
adopting a two-stage process using the accelerated PA procedure - i.e. bypassing the House of Lords on both occasions.
 Firstly, by removing the express exception against doing this in s2(1) PA 1911, and then by passing an Act to increase the
lifetime of the current Parliament to, say, 10 years?
 The majority answer to this hypothetical but important question was that this would not be possible. In other words
there was an implied exception to this extent (though not to the extent that Mr. Jackson argued.)
 The reason given was that it was vital to maintain the very important democratic safeguard in s 2(1) by ensuring that the
HoC could not extend its own time in power without being checked by the House of Lords as the second chamber
Jackson – wider obiter discussion
 One can see clear judicial concern about the potential constitutional dangers of a system in which a strong central
executive can use its majority in Parliament to pass legislation that may undermine fundamental rights and values. Lord
Steyn referred to a "complaisant House of Commons" (at para 102.)
 This remains a key anxiety of the judiciary and is reflected in the modern emphasis on protection of fundamental rights
through the common law.
 In Jackson judges such as Steyn, Hale and Hope looked to the principle of the rule of law (in its modern substantive
form) as the vital safeguard in establishing a balance in the constitution between its political and legal foundations.

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Jackson – Lord Hope – rule of law

 Lord Hope saw the rule of law has having a key functional role in providing the necessary balance between the different
bodies of state.
 "The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact
that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the
courts have a part to play in defining the limits of Parliament’s legislative sovereignty." (para 107)
 It was seen as the court's role therefore – as 'guardians' of the rule of law – to define these limits.
 "Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it
ever was, absolute. ... It is no longer right to say that its freedom to legislate admits of no qualification whatever.
Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which
Dicey derived from Coke and Blackstone is being qualified." (para 104)
Jackson – Lord Steyn
 The view that parliamentary sovereignty was not 'uncontrolled' was reflected in a more radical way still by Lord Steyn.
 He mooted the possibility of the passing of "oppressive and wholly undemocratic legislation" and warned that the courts
may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional
balance.
 Note from the following quote how Steyn sees the principle of parliamentary supremacy as a product of the common
law. (This remains an unorthodox view, but it does represent one logical extension of the approach that attributes the
courts with the role of constitutional arbiters.)
Lord Steyn – common law
 "The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can
now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still
the general principle of our constitution. It is a construct of the common law. The judges created this principle. If
that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle
established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new
Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign
Parliament acting at the behest of a complaisant House of Commons cannot abolish."

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Withdrawal of the UK from the European Union (Withdrawalz)

THE EUROPEAN UNION AND THE UK’S MEMBERSHIP
 The history of the European Union can be traced back to the establishment of three initial communities in the
1950s:
1. The European Coal and Steel Community (‘ECSC’)
2. The European Economic Community (‘EEC’)
3. The European Atomic Energy Community (‘Euratom’)
 These were established by treaties agreed by six initial Member States
 The United Kingdom joined the three European Communities on 1 January 1973.
 The European Union itself was established in 1993
 By that time, membership had increased to 12 states – increased to 28 Member States by the end of 2013.
 In 2016, a referendum was held in the United Kingdom in which the majority of electors who voted chose to
leave the European Union. The United Kingdom left the European Union on 31 January 2020 (‘Brexit’)
 EU law was given effect in the United Kingdom by the European Communities Act 1972 (‘ECA’)
 Upon UK’s withdrawal, the ECA was repealed by the European Union (Withdrawal) Act 2018 (the ‘EUWA
2018’)
 Nevertheless, the EUWA 2018 provides for much of EU law to continue to have effect in the United Kingdom
 Some EU law is preserved by the EUWA 2018 in order to fulfil the requirements of a Withdrawal Agreement
between the United Kingdom and the European Union
 However, the bulk of EU law has been retained by the EUWA 2018 in order to avoid the chaos that would
ensue if it was all repealed at the same time. This has been converted into domestic UK law by the Act and can
be amended or repealed in virtually the same way as any other domestic law in the United Kingdom.

ACTS & SOURCES OF EU LAW

 The various kinds of acts which the institutions of the European Union can undertake, and the various sources of EU law,
can be broken down into six categories:
1) Primary sources. These are the EU Treaties and the Charter of Fundamental Rights.
2) Secondary sources and acts. These are regulations, directives and decisions.
3) Tertiary acts.
4) Case law.
5) International agreements. These are international treaties.
6) Non-binding acts (‘soft law’).
7) General principles of EU Law: certain overarching legal principles, derived from the EU treaties and case law,
which apply generally across EU law

1. Primary Sources of EU Law

EU Treaties The Charter of Fundamental Rights
 The primary source of EU law is provided  Adopted in 2000 as an authoritative statement of fundamental rights
by two EU treaties: within the European Union. It was given formal legal recognition by the
1) The Treaty on the Functioning of Lisbon Treaty of 2007 through the insertion of a new article 6(2) into the
the European Union (‘TFEU’) TEU.
2) The Treaty of European Union  Art6(1) TEU provides that the Charter has the same legal status as the
(‘TEU’) treaties. It is, therefore, a primary source of EU law
 They are both commonly referred to as  However – it’s more limited in its application than the EU treaties.
the European Union’s primary Article 51 of the Charter makes it clear that it only regulates the
legislation. activities of the European Union, and those of the Member States when
 N.B. The European Convention on they are implementing EU law. Moreover, it does not confer, extend or
Human Rights (ECHR) is NOT an EU modify any of the powers of the European Union under the treaties.
treaty: It is overseen by a completely  The Charter can be used to interpret EU law or to determine the

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different organisation – some of its lawfulness of the EU’s acts or of national measures giving effect to EU
signatories are not even European Union law. But it does not provide an independent source of competence for
members. Art 6(2) TEU does provide the the European Union, or an independent legal basis for its activities.
EU with the power to accede to the Neither does it apply to Member States in purely domestic situations
ECHR, but hasn’t done to date which fall outside of EU law.
2. Secondary Sources and Acts
Regulations Directives
 Art 288 TFEU authorises the European Union to  Provided for by Art 288 TFEU which states that:
undertake certain secondary acts  ‘A directive shall be binding, as to the result to be
 These constitute legislative acts where they are achieved, upon each Member State to which it is
adopted using a legislative procedure (Art 289(3) addressed, but shall leave to the national authorities the
TFEU). choice of form and methods.’
 Art 288 provides that:  Means Member States are required to implement
 ‘A regulation shall have general application. It shall be directives by enacting their own legal measures to
binding in its entirety and directly applicable in all incorporate or to give effect to them in their national law
Member States.’  Deadline for implementing a directive usually specified in
 ‘Directly applicable’ means that the regulation applies directive itself and typically will be 2 years after the
in the Member States without those Member States directive was adopted. No deadline specified = deadline
having to enact their own legal measures to implement for implementation will be 20 days after the publication of
or give effect to it. the directive (Art 297 TFEU).
Decisions
 Provided for by art 288 TFEU. That article states that: “a decision shall be binding in its entirety. A decision which
specifies those to whom it is addressed shall be binding only on them”
 E.g. the European Commission may make a decision that a company is in breach of EU competition law and may also
decide to impose a fine on the offending company. It did so in 2018 when it made a decision that Google was in breach
of competition law for abusing its dominant position in certain markets relating to its mobile phone operating system.
The Commission decided to impose a fine of €4.34 billion. This is currently the record amount for such a fine.
 A decision = secondary legislation if it was adopted using a legislative procedure (Art 289(3) TFEU)

3.Tertiary Acts
Delegated acts Implementing acts
 Art 290 TFEU enables EU  Art 291(2) TEU enables legally binding EU acts to confer on the European
secondary legislation Commission the power to adopt acts for implementing those legal binding EU
(regulations, directives and acts where uniform conditions for implementation are needed. The power can
decisions) to delegate the power also be conferred on the Council of the European Union in certain
to the European Commission to circumstances.
adopt delegated acts to  Tertiary acts may themselves take the form of regulations, directives and
supplement or amend that decisions.
secondary legislation.  Note: The European Commission and the Council of the European Union are
both institutions of the European Union.

4. Case Law
 The judgments of the EU courts in the cases they decide also provide a further source of EU law
 These have been extremely important in developing and transforming whole areas of EU law
 The principal courts of the EU are the Court of Justice of the European Union (CJEU) and the General Court
 While there is no appeal from the national courts of the Member States to the EU courts, national courts can make
preliminary references to the Court of Justice. These are questions about EU law which are referred to the Court of
Justice by the national court. The Court of Justice will make a ruling on the question which was referred to it. This is
called a preliminary ruling. The case then returns to the national court to apply the ruling of the Court of Justice.
 Note: that the European Court of Human Rights is not one of the courts of the European Union. (It is the court that
oversees the European Convention on Human Rights and has nothing to do with the EU.)

5. International Agreements/Treaties
 Art 47 TEU confers legal personality on the European Union. This gives it the capacity to act on its own behalf within the
realm of public international law, including entering into international agreements (i.e. international treaties).

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 Art 216(1) TFEU empowers the European Union to be able to enter into international agreements in various
circumstances listed in the article. These international agreements are binding upon the EU institutions and the Member
States (Art 216(2) TFEU).
 Other provisions of the TEU and TFEU provide further powers to enter into international agreements in relation to more
specific matters – including agreements on arrangements for States to withdraw from the EU (Art 50(2) TEU).
6. Non-binding Acts (‘Soft Law’)
 The institutions of the European Union may also undertake acts which are not binding on anyone.
 Art 288 TFEU provides for the institutions to be able to make recommendations and to deliver opinions. The article
expressly states that these are non-binding.
 Other non-binding acts include communications, declarations, notices, programmes and resolutions.
 These acts are colloquially known as ‘soft law’. However, this label is misleading as they are not forms of law at all.
 Note: As these forms of soft law are not binding, they are not, in themselves, enforceable in national courts. However,
they can be used to aid the interpretation of the other forms of EU law.
7. General Principles of EU Law
 They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and
secondary legislation of the European Union, and to determine the lawfulness of those activities of the Member States
which fall within the scope of EU law
 The rights found in the Charter of Fundamental Rights, which was discussed earlier, provide an example.
 Some of the general principles were specifically laid down by the EU treaties but many were developed by the Court of
Justice drawing on legal principles that are common to the Member States, on public international law and on other
provisions of the EU treaties. Some of the general principles which were originally developed by the court have now
been formally incorporated into the EU treaties.
 Examples include:
Equality and non- This principle includes prohibitions on discrimination on the basis of nationality (Art. 18 TFEU),
discrimination sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation (Art. 19 TFEU)
Respect for fundamental This includes the rights found in the European Convention of Human Rights (Art. 6(3) TEU) and
rights (Art 6(3) TEU) those in the EU’s Charter of Fundamental Rights (Art. 6(1) TEU).

Proportionality This requires that an act must be suitable and necessary to attain the object pursued and that it
must not go further than is necessary to achieve that objective.

THE ENFORCEMENT OF EU LAW AND THE PRINCIPLE OF SUPREMACY

Methods of Enforcement in National Courts

 While the case law of the EU courts is legally binding in Member States, the primary, secondary and tertiary legal acts as
well as international agreements can also be enforced in national courts. The Court of Justice has developed three
different methods for doing so:

Direct effect requires EU legal acts that satisfy certain criteria to be directly enforced in national courts
Indirect effect requires national courts to interpret their national law in a way that is compatible with EU law, although
only in so far as it is possible to do so
State liability enables individuals to recover compensation in their national courts from a Member State where they
suffered loss as a result of a sufficiently serious breach of EU law by that Member State
 Each of these methods have their own conditions that must be satisfied if they are to be relied upon. It is possible for an
EU legal act to be unenforceable in a national court because it does not satisfy the conditions for any of these methods.

The Supremacy of EU Law

 The principle of the supremacy of EU law addresses the question of how conflicts between EU law and the national law
of the Member States should be resolved. It directs that where such a conflict arises, national law cannot override EU
law. EU law must prevail over the offending national law instead.
 Whether or not there is a conflict will depend on the respective requirements of EU law and national law in the first
place in the context in which the issue arises. If there is no requirement under EU law for a national court to enforce the
particular provision of EU law, no conflict between EU law and national law will arise in that national court.
 It is worth noting that the Court of Justice has never used the term ‘supremacy’ to describe the principle. It has

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preferred to refer to EU law taking precedence over or priority over the national law of the Member States. In more
recent years, it has become common to describe the principle as the primacy of EU law instead.

Costa v E.N.E.L (1964)

 The supremacy of EU law was established in this case
 The Italian government argued that there was nothing in the EEC treaty* which enabled national courts to override
national law on the basis that it was incompatible with the EEC treaty. This argument was rejected by Court of Justice
which held that:
o ‘the law stemming from the Treaty… could not… be overridden by domestic legal provisions…’
 It is this principle which subsequently became known as the supremacy of EU law.
 *One of the original three communities that preceded the establishment of the European Union (see ‘The European
Union and the UK’s Membership’ above)
Internationale Handelsgesellschaft v Einfuhr und Vorrastelle für Getreide und Futtermittel (1970)
 The approach of the Court of Justice to the supremacy of EU law has been absolutist
 In this case the Court of Justice held that EEC law takes precedence over the national constitutions of the Member
States, including any fundamental rights provided by these national constitutions.
 However, the Court of Justice has mitigated the effect of this to some extent by adding in the same case that the
protection of fundamental rights was itself a general principle of EEC law. Consequently, EU law must itself be
interpreted and applied in accordance with fundamental rights
Amministratzione delle Finanze dello Stato v Simmenthal SpA (1978)
 The absolutist approach of the Court of Justice to the principle of the supremacy of EU law = reinforced here
 In that case, the Court of Justice held that:
1) The principle applies in all national courts. This includes the constitutional courts of the Member States.
2) The principle applies irrespective of when the national law was enacted.
3) The Italian court which made the preliminary reference was not entitled to wait until the Italian constitutional
court had ruled that the national law was to be disapplied. The Court of Justice insisted that EEC law must
immediately be given precedence over the national law.
 Note the effect of the supremacy of EU law here. The national law is not to be rendered void or invalid. It simply has
to be disapplied. In other words, it is not to be enforced if it is incompatible with EU law.

BREXIT AND THE EUROPEAN UNION (WITHDRAWAL) ACTS

 This part considers the legal framework which has been established in the UK by the European Union
(Withdrawal) Acts to provide for and govern the legal consequences of its withdrawal from the EU

Recap of statutory framework provided by the ECA 1972 for the incorporation of EU law into legal systems of the UK during the UK’s
membership
s2(1) Gave effect to EU law in the UK providing that:
‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties,
and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and
available in law, and be enforced, allowed, and followed accordingly…’
s2(2) Provided a power to make subordinate legislation to implement EU law or to deal with any matters arising out of
obligations and rights under EU law.
s3(1) Provided that questions of law relating to the EU shall be determined according to the principles and decisions laid down
by the Court of Justice. This gave effect to the case law of that court.
s2(4) SUPREMACY OF EU LAW: This sought to accommodate the supremacy of EU law and provided the primary basis upon
which the UK courts were willing to disapply statutes which were incompatible with EU law

Brexit and the Withdrawal Agreement

 EUWA 2018: laid down the legal framework which provided for the legal effect/consequences of Brexit
 s1: formally repealed the ECA 1972 when UK left EU on 31 January 2020 (referred to in EUWA as ‘exit day’)
 Relationship between UK and EU following Brexit initially governed by The Agreement on the Withdrawal of the United
Kingdom of Great Britain and Northern Ireland from the European Union and European Atomic Energy Community
 The international agreement (‘the Withdrawal Agreement’) was entered into as part of the withdrawal process under
art 50 TEU – it was incorporated into UK law by the EUWA 2020 which amended the EUWA 2018 to this end

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The EUWA and the Transition Period

 Part 4 Withdrawal Agreement: provided for EU law to continue to apply in UK until 31 December
 Referred to as the implementation period in the two EUWAs – EUWA 2020 gave effect through following provisions:
 s1A EUWA 2018 provided for the ECA 1972 to continue to give legal effect to EU law in accordance with the Withdrawal
Agreement during the transition period, despite the ECA 1972 having been repealed,
 By this means, EU law continued to have effect in the UK in much the same way as it had previously under ss.2 + 3 ECA
during the UK’s membership – included UK courts being able to disapply any domestic law which was incompatible with
the Withdrawal Agreement
 When a statute is repealed, there’s a presumption that any subordinate legislation made under it is also to be repealed
 s1B EUWA 2018: prevented the repeal of the ECA from having this effect during transition period by preserving EU-
derived domestic legislation passed before the UK withdrew from the European Union
 s1B(7): defined ‘EU-derived domestic legislation’ as referring to any UK legislation which was enacted under s2(2) of the
ECA or for one of the purposes in s2(2) of the ECA, or which otherwise relates to the EU (e.g. secondary legislation
enacted for the purpose of implementing a directive)
EU Law after the end of the transition period
Following the end of the transition period at the end of December 2020, the application of EU law in the United Kingdom is
now governed by two different legal regimes:
1) The Withdrawal Agreement provides for some EU law to continue to apply to certain specific matters in the United
Kingdom (EU Law preserved by the withdrawal agreement)
2) The application of the rest of EU law – that which is no longer preserved by the Withdrawal Agreement – is now
governed by a separate legal regime (Application of the rest of EU Law)

1) EU Law preserved by the Withdrawal Agreement

 Provides for some EU law to continue to apply to certain specific matters, such as the rights of Union citizens (any
national of a Member State of the EU) and their family members who were resident in the United Kingdom at the end of
the transition period
 The most controversial part of the Agreement is the Protocol on Ireland/Northern Ireland which is designed to maintain
an open border between Northern Ireland and the Republic of Ireland.
 s7A EUWA 2018: gives effect to EU law preserved by the Withdrawal Agreement at end of transition period
o Drafted in similar terms to ss2(1) + 2(4) of the ECA 1972
 s5(7) EUWA 2018: preserves the supremacy of EU law in so far as it is required by the Withdrawal Agreement
o It follows from this that, in accordance with the principles laid down in the earlier case law on s.2(4) ECA, the UK
courts remain able to disapply statutes where they are incompatible with any EU law which continues to be
preserved by the Withdrawal Agreement after the end of the transition period.
 No direct repetition of the general obligation in s3(1) ECA to give effect to the decisions of the Court of Justice
 s7C EUWA: instead requires questions as to the validity, meaning or effect of the following to be decided in accordance
with the Withdrawal Agreement:
o The provisions of the EUWA 2018, such as s.7A, which provide for the implementation of the Withdrawal
Agreement,
o Anything which is part of domestic law by virtue of those provisions,
o Anything else which is part of domestic law for the purposes of the Withdrawal Agreement, or because it
otherwise falls within the scope of the Withdrawal Agreement.
 This includes any EU law preserved by the Withdrawal Agreement and remains part of domestic UK law as a result
 S7C(2): specifically refers to several articles of the Withdrawal Agreement in relation to the obligation under s7C:
o Art 4 of WA: requires the Withdrawal Agreement’s provisions, including any EU law preserved by them, to be
interpreted in conformity with the case law of the Court of Justice made before the end of the transition period.
However, it requires the United Kingdom’s judiciary to have only due regard to such case law decided after the
end of the transition period.
o Art 158 of WA: enables UK courts and tribunals to continue to make preliminary references to the Court of Justice
on questions concerning the rights of Union citizens and their family members in cases which commenced at first
instance within 8 years of the end of the transition period.
o Art 12 of the Protocol on Ireland/Northern Ireland attached to the WA: enables preliminary references to be
made to the Court of Justice in relation to EU law preserved by the Protocol in Northern Ireland.

The Withdrawal Agreement and Parliamentary Sovereignty

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 Insertion by the EUWA 2020 of ss.1A + 7A into the EUWA 2018 preserves the ability of the courts to disapply statutes
where they are incompatible with the Withdrawal Agreement and with any EU law that is preserved by it.
 s7C also does so by also requiring compliance with the obligation in article 4(2) of the Withdrawal Agreement to ensure
the disapplication of domestic law which is incompatible with the Withdrawal Agreement.
 Nevertheless, s.38 of the EUWA 2020 specifically reasserts that Parliament remains sovereign notwithstanding the
insertion of these sections into the EUWA 2018
 One consequence of this may be to reinforce the principle in Macarthys Ltd v Smith (1979) and Thoburn v Sunderland
City Council (2002) that Parliament retains the right to override EU law, as well as the Withdrawal Agreement, by using
express words or at least specific words that disclose a deliberate intention to do so.

2) The Application of the Rest of EU Law

 Most EU law is no longer preserved by the Withdrawal Agreement following the end of the transition period.
 Nevertheless, the sheer volume of EU law which formed part of the UK legal systems at the end of the transition period
made it impracticable to repeal this remaining EU law in its entirety at that time
 Therefore, the EUWA 2018 (as amended by the EUWA 2020) has retained the bulk of this EU law and converted it into
domestic UK law
 This retained EU law is now capable of being amended or repealed by subsequent domestic legislation in much the
same way as any other law in the United Kingdom.
 The EUWA also provides for any domestic subordinate legislation made under the ECA to be retained as well.

Retained EU Law
 To that end, s2 to 4 of the EUWA 2018 provide for the following to continue to have effect in the United Kingdom
(except where they are excluded by the Act):
1) EU-derived domestic legislation
2) Direct EU legislation
3) Other EU law
 s6(7) EUWA 2018: these three forms of law are collectively referred to as ‘retained EU law’
 N.B. Retained EU law does not include any EU law which continues to apply under the Withdrawal Agreement after the
end of the transition period. That is governed by s.7A of the EUWA 2018 instead.

1) EU-derived domestic legislation

 s2 EUWA 2018: retains EU-derived domestic legislation (performs a similar function to that of s.1B EUWA 2018)
 Definition of ‘EU-derived legislation’ in s.1B(7) applies equally in relation to s2

2) Direct EU legislation
 s3 of the EUWA 2018 retains direct EU legislation. This is defined as any EU regulation, EU decision or EU tertiary
legislation which is in force and applicable in domestic law immediately before the end of the transition period – s3(2)
 EU tertiary legislation refers to EU legislation made under powers conferred by EU secondary legislation
 N.B. s20: tertiary legislation in the form of an EU directive is excluded
 Direct EU legislation is divided into two categories by s7(6) EUWA 2018. These are:
o Direct principal EU legislation which refers to EU Regulations which were not tertiary legislation
o Direct minor EU legislation which covers any other direct EU legislation which is not direct principal EU legislation.

3) Other EU law
 s4 EUWA 2018: retains any other EU law which was applicable in UK law by virtue of s2(1) of the ECA immediately
before the end of the transition period, and which does not constitute direct EU legislation under s3 EUWA 2018.
 s4(2)(b): However, the section excludes any rights/obligations under EU directives which ‘are not of a kind recognised’
by the EU courts or domestic courts in a case decided before the end of the transition period
 Paragraphs 97 and 98 of the EUWA 2018 Explanatory Notes explain that this is designed to exclude rights and
obligations conferred by a directive from having direct effect, unless they are of a ‘of a similar kind’ to those already
recognised by the EU courts or domestic courts as being able to do so:
‘So rights arising under a particular directive that have been recognised by a court before [the end of the transition
period] as having direct effect, could be relied upon by other individuals who are not parties to that case, in
circumstances which the directive is intended to address.’ (para. 98)
 Several commentators have noted that this remains ambiguous. For example, Paul Craig has maintained that it is not
clear whether the right must have been expressly recognised as having direct effect in a case concerning the particular

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directive, or whether it will suffice that the right was of a similar kind to one recognised as having direct effect in a case
which was not dealing with that directive.
 N.B. s5(4) EUWA 2018 specifies that the Charter of Fundamental Rights will no longer be part of UK law – consequently,
rights under the Charter are not retained by s4 EUWA 2018.

The Amendment of Retained EU Law

 s5 EUWA 2018: the principle of the supremacy of EU law continues to apply in relation to any UK law made before the
end of the transition period (does not apply to any UK law made after the end of that period)
 Accordingly, s7 EUWA 2018, together with sch. 8, specifically permits retained direct EU legislation and other retained
EU law to be modified by the following methods:
o By an Act of Parliament
o By any other primary legislation (refers to primary legislation of the devolved assemblies in Scotland, Wales and
Northern Ireland – s20)
o By subordinate legislation where it is made under a Henry VIII power to modify such retained EU law or to amend
primary legislation.
 s7 together with sch. 8 also permits retained direct minor EU legislation to be modified by subordinate legislation where
that subordinate legislation was not made under such Henry VIII enabling powers.
 However, this subordinate legislation can only modify direct principal EU legislation retained under s3 or other EU law
retained under s4 in so far as the amendment is supplementary, incidental or consequential to any modification of
retained direct minor EU legislation
 It cannot modify retained direct principal EU legislation or other retained EU law in any other circumstance.

Retained EU Case Law

 s6(3) EUWA 2018: The courts and tribunals in the United Kingdom are required to determine any questions as to the
validity, meaning or effect of retained EU law (in so far as it remains unmodified) in accordance with the case law of the
Court of Justice that existed at the end of the transition period (referred to as ‘retained EU case law’ – s6(7)
 However:
o s6(1)(b): UK courts/tribunals = no longer able to make preliminary references to Court of Justice on qstns of EU law
o s6(4): The Supreme Court and, in Scotland, the High Court of Justiciary are not bound by retained EU case law
o s6(5): In deciding whether to depart from retained EU case law, they must apply the same test as they would apply
in deciding whether to depart from their own case law
• Under the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, the
following courts are also not bound by retained EU case law:
o The Court of Appeal in England and Wales
o The Court Martial Appeal Court
o Various other courts in Scotland and Northern Ireland specified in the Regulations.
 In deciding whether to depart from retained EU case law, these courts must apply the same test as the Supreme Court
would apply in deciding whether to depart from the case law of the Supreme Court.
• s6(1)(a): No courts and tribunals in the United Kingdom are bound by any cases decided by the Court of Justice after the
end of the transition period, although they may have regard to them

Retained General Principles of EU Law

 s6(3): UK courts/tribunals also continue to be bound by retained general principles of EU law
 s6(7): These are the general principles of EU law which have effect in EU law immediately before the end of the
transition period
 However, the courts and tribunals are not bound by any general principles which were not recognised by the Court of
Justice before the end of the transition period (para. 2 of Sch. 1).

Other Principles of EU Law

The Charter of Fundamental Rights and Retained Fundamental Rights
 s5(4) EUWA 2018, the Charter of Fundamental Rights has not been part of UK law since the end of the transition period.
 However, s5(5) mitigates the effect of this by making it clear that:
o This does not affect the retention of any fundamental rights which existed under EU law at that time
irrespective of the Charter. This will include, for example, any fundamental rights recognised as general
principles of EU law.

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o Moreover, any references in case law to the Charter are to be treated as if they were references to such
retained fundamental rights.

State Liability
• State liability is no longer available as a method of enforcing EU law (para. 4 of Schedule 1 which refers to this as the
‘Rule in Francovich’ after the case that first established this method).

Summary:

EU preserved law:
 Preserved law continues to benefit from the supremacy of EU law (Costa) – meaning domestic law is
DISAPPLIED
 Any relevant case law from EU courts that was decided BEFORE the end of the transition period remains
BINDING
 However, case law made by EU courts AFTER the end of that period is NO LONGER BINDING
 The courts are only required to give due regard to such case law
 Continues to be possible to make preliminary references in relation to preserved law general principles of
EU law apply

Retained EU law
 Retained EU law continues to be able to benefit from the principles of supremacy of EU law against UK
legislation which was enacted before the end of the transition period
 This maintains the legal position in relation to the UK legislation at the time that the legislation was
enacted
 Any new legislation enacted AFTER the end of the transition period is no longer subject to that principle
and can now be amended or repealed by any law enacted in the UK (meaning even if it was enacted
before end of transition period - if the act confers power to amend primary legislation)
 Supreme Court, Court of Appeal, Court Martial Appeal Court not bound by EU case law but can have
regard to that case law.
 Most domestic courts and tribunals are however bound by EU case law decided BEFORE end of transition
period.
 No longer possible to make preliminary references to Court of Justice
 EU general principles which had effect before the end of the transition remain binding but not new ones
 Charter of Fundamental Rights NOT binding anymore (aside from those recognised as general principles)
 No longer possible to rely on state liability
 Direct effect and indirect effect still available to enforce retained EU law

Downloaded by Naj Hasan (lawyer.najmul@gmail.com)

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Downloaded by Naj Hasan (lawyer.najmul@gmail.com)