Parliamentary Sovereignty (PS)

 Judicial analysis of the UK’s constitution is that there are no limits to legislative competence of
Parliament (P).

 Professor Dice’s conception of sovereignty encompasses 3 rules:

1 – P is supreme law making body.
2 – No P may be bound by a predecessor or bind a successor.
3 – No person or body may question the validity of an act of P.

 Only Acts of P are supreme. Resolutions of a House or proclamations of the Crown don’t have
force in law.

 Repeal of legislation – 2 types:

1 – express (legislation which expressly states an earlier act is repealed).
2 – implied (when a new act is partially or wholly inconsistent with the previous act, previous
act is repealed to the extent of the inconsistency).

 No JR of the manner in which legislation has been passed.

 Hunting Act case – passed without consent of HL using the Parliament Acts 1911 and 1949.

 Parliament Act 1911 – limited the powers of HL to block legislation passed by HC. A Bill
rejected by the Lords in 3 successive sessions could become law provided 2 years lapsed
between the second reading and final approval of the Commons.

 Parliament Act 1949 – reduced the delay from 3 sessions to 2 sessions which is effectively a
one year delay.

 No JR of the substance of legislation.

 4 challenges to traditional theory of PS:

1 – devolution – the Scotland Act, however a section in that act specifically provides that there
be no reduction in the legal sovereignty of Westminster to legislate for Scotland. Nb/ politically
very difficult to take power from Scotland.

2 – HRA – declarations of incompatibility.

3 – membership of EU – Treaties have no direct effect in English law so P passed legislation to

incorporate them into domestic law.

S2 European Communities Act 1972 gives direct effect to community law within the UK.

S3 – questions of law re: community shall be determined according to the principles and
decisions laid down by the ECJ.

The Courts take a purposive interpretation of legislation passed by P. Under this section the
purposive approach is that the Court makes a presumption that P intended to legislate
consistently with community law.

Serious dilemma arose in Factortame case – cited as most important in constitutional law. It
appears Courts can now suspend an act of P (at least temporarily) if it appears to conflict with
community law. It appears implied repeal has been extinguished as far as EC rights are
concerned.

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 Since the case, Courts have been wiling to go further and to disapply sections which clearly
conflict with EC law even without a reference to the ECJ.

4 – obiter debate in Jackson – who knows what that says?!

 Modern view of sovereignty – question whether unlimited sovereignty still exists in the UK
today. Academics argue there’s no reason why P can’t specify the way in which future P’s
should legislate eg/ making HR legislation require a 2/3 majority to be repealed.

Separation of Powers

 Overlaps in personnel and functions. All the branches of state overlap each other.

Statutes and conventions:

HC disqualification Act 1975 – prevents judges and senior civil servants becoming MPs as well as the
convention of ministerial responsibility.

HRA arguably re-enforces the doctrine of separation of powers because of the declaration of
incompatibility power.

They are examples of legislation which operates to ensure a degree of separation within the UK
constitution.

Judicial Independence

Crucial to separation of powers and the rule of law. Without independent judiciary, can be no real sep
of power because executive or legislature can manipulate outcome of cases.

The Constitutional Reform Act 2005 creates an obligation on the executive to uphold judicial
independence.

Art 6 of the ECHR plays an important role in this regard.

1. Tenure – a Judge may hold office during good behaviour and may only be dismissed by the
monarch following an address presented to him/her from both houses of P.

2. Immunity – Judges cannot be sued for their actions in Court – even extending to defamation.
Complete immunity for Judges in high courts but not so clear in lower courts.

3. Open Courts – trial in public.

4. Political independence – Judges disqualified from sitting in HC and by convention must be

apolitical.

5. Judicial appointments – Before(!! Haha) the Constitutional Reform Act the Lord Chancellor, a
member of the executive and the legislature used to pick the Judges up to the High Court. Now
since the Act independent judicial appointments commission picks the judges. Commission
contains 15 members who are professional, lay and judicial members.

6. Head of the Judiciary – before the Act, used to be Lord Chancellor, now is the Lord Chief Justice.

RULE OF LAW

 Principle that those exercising a governmental function should not be able to exercise power
arbitrarily but rather be subject to legal controls.

 Saudi Arabian case – initially divisional Court concluded the decision to halt the investigation
due to an external threat ran directly contrary to the rule of law so it quashed his decision. But
then HL overturned that saying director entitled to conclude that public interest in pursuing

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 investigations into the alleged bribery was outweighed by the wider public interest in
protecting wider security.

The rule of law in the UK constitution

 The practical application of the rule of law largely takes place through JR of administrative
action.

 4 key principles:

1 – Legal justification for action: key aspect of rule of law is supremacy of regular law over
arbitrary power.

2 – Laws must be sufficiently clear. In Sunday Times v UK the ECtHR discussed certain qualities
that must be fulfilled for law to meet that criteria. Often referred to as being prescribed by law.
Retrospective laws are incompatible with the rule of law.

3 – Control over discretionary power – In modern times many statutes confer wide
discretionary power to the executive and other public authorities.

4 – Equality before the law – this idea can be split into 2 aspects:

a) everyone is the subject to the law; and

b) everyone is subject to the ordinary courts of the land.

Many long standing examples of inequality under UK law including:

1- Powers of the Queen.

2- Certain officials being in possession of certain powers eg/ police and customs officers.
3- Superior Judges are immune from civil litigation for acts done within their official jurisdiction.
4- Parliamentary privilege.
5- Diplomatic immunity.

Is the constitution the result of the ordinary law of the land?

- Principle was the classic British view of rights was defined negatively as residual rights, that is
to say that individuals were free to do anything that wasn’t prohibited.

- Today HRs and the principle of the rule of law cannot be considered without looking at the
effect of the HRA. HRA falls short of the protection envisaged by the convention. The Act does
not enable the Court to enforce an individual’s rights by overturning or striking down law. The
HRA provides a significant and useful restraint on public bodies from using their power to
jeopardise individual rights and therefore provides positive protection for the rights.

Executive Institutions of the State

 The main concept of responsibility is found on two key constitutional conventions: collective
and individual ministerial responsibility.

Central Executive

 Prime Minister and Cabinet comprise central executive.

 If no party gains more than half seats of parliament, constitution allows negotiations.
 Incumbent PM gets first dibs on coalition forming.
 PM has very few strict legal powers however, by convention PM’s power very considerable.
 Queen appoints/removes ministers, by convention, on PM’s advice (ie PM makes choice).

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  PM, Cabinet and government collectively responsible to the House of Commons for their
conduct of national affairs and must resign if defeated in “no confidence vote”.

Civil Servants and Public Officials

 3 main constitutional principles underpin civil service

o Permanence – ie don’t change hands because of elections
o Political Neutrality – It’s important for all civil servants to be politically neutral if they
are to serve successive parliaments.
o Anonymity – Important in maintaining political neutrality

Scrutiny of the Executive by Parliament

 Carried out by House of Commons

 Opportunities to do this through – parliamentary questions, debates and select committee
meetings.
 2 main types of questions –
o oral – answered during question time.
Only 2 can be asked and each question directed to 2 different departments. (Tabled 2
days minimum in advance.
Speakers discretion can ask supplementary question (don’t have to be tabled in
advance).
Answers can be refused (eg National security grounds)
All Questions and Answers printed in Hansard
Many answered in writing that cant be answered in question time.

Conventional Controls

 Collective responsibility
o Confidence – Need for Govt to present united front
o Unanimity – Once decision reached all ministers should publicly agree with Govt policy.
If they feel they cant then should resign.
Inflexibility of doctrine means MP’s leak info/docs to the press.
o Confidentiality – Duty not to disclose confidential info and extends to cabinet papers
and ministerial memoirs
Exceptions to this rule are – public documents already, papers dealing with matters
known to foreign govts and written opinions of law officers.
 Individual Ministerial Responsibility (Crichel Down Affair classic eg) – Classic definition
ministers accept responsibility, and if necessary resign, for any errors/failings of their dept.
Possibly disappeared this and more likely minister resigns for personal failings.

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  Crichel Down Affair – About land acquired in 1938 for use as bombing range.
Minister resigned. Home Secretary at time distinguished4 eg’s that modified convention
o Where explicit order made by minister.
o When civil servant acts in accordance with minister’s policy.
o Where official makes mistake or cause delay, but not of important issue of policy
o Where civil servant takes action which minister disapproved or has no prior
knowledge and conduct is reprehensible

In first 2 MP must resign and protect civil servant but not in last 2.

Nature of Legislation

Stages are:

1st reading – Tabled and date for 2nd reading set

2nd reading – debated and amendments may be made. Vote taken at end of debate

Committee stage – Bill scrutinised in detail and challenged. Can be amended here

Report stage – report produced by committee and house debates any proposed amendments

3rd reading - Bill presented to house and either accepted or rejected.

Other house – procedure then repeated in other house. If amendments back to 1st house for acceptance
rejection

Royal assent

Devolution Legislation

Scotland

 1998 – act specifies which matters are reserved to Westminster not what is devolved.
 Scottish parliament not able to legislate of matters reserved, and by convention, Westminster
cant legislate on devolved areas without Scottish consent.
 There are:
o Scotland Act Orders (SAO) – enable amendments to legislation affecting Scotland, or
Scottish legislation to have full affect, or additional powers to be transferred to Scottish
ministers.
o Legislative Consent Motions (LCM) – procedure Scottish parliament gives consent
Westminster to legislate on devolved matter.

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Northern Ireland

 Northern Ireland ministers chosen from the Assembly

 Act gives legislative control over certain matters (transferred matters) to Assembly.
 Matters of national importance, expected will remain with Westminster. Schedule 2 of Act sets
out these areas.
 Reserved matters set out in Schedule 3
 Anything not explicitly reserved or excepted in Schedule 2 or 3 deemed to be devolved.
 In the NI parliament on important or controversial matters there is a special threshold of
“cross community support” which is
o Parallel consent – overall majority plus a majority of Nationalists and unionists. Also
known as 50:50:50; or
o Weighted majority – overall majority of 60% plus at least 40% of designated
Nationalists and Unionists voting

Wales

 2006 act since 1998 act added t

o he formal separation between Assembly and Welsh Govt and
o enhanced legislative powers for Assembly through new category called Assembly
Measures so legislative priorities for Wales secured more quickly.
 The 2006 Act allows the Assembly to legislate on 20 matters set out in Schedule 7 as qualified
by exceptions and reservations in that Schedule and in S108.

The Crown and the Prerogative

 Royal prerogative refers to common law powers of the Queen (reality the Executive) as distinct
from statutory powers.
 Prerogative powers remain important however, business of govt largely conducted through
statutory powers.
 Where prerogative powers retain significance, convention largely dictates the use of same.
 Public Admin’s Fourth Report identified 3 main groups of prerogative powers:
o Prerogative Executive Powers – Examples of some are
 Appointment and dismissal of ministers
 Control of Armed forces
 Admin of Dependencies (and formal colonies)
 Making and ratification of treaties (generally doesn’t require approval of
parliament

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  Taking of measures in times of emergency
 Prerogative of mercy (carried out by home secretary). Courts have held this
power to be non-justiciable in past however, new cases cast doubt on this.
 Grant revocation of passports; and
 Recognition of foreign states.
o Legal Prerogatives of the Crown
o The remaining legal prerogatives of any significance are:
 Crown can do no wrong however, Crown Proceedings Act provides certain
exceptions to this. Eg Act preserved personal immunity of monarch from being
sued
 Principal of interpretation that statutes don’t bind the crown except by express
statement or necessary implication
 Time doesn’t run against crown (statute requires crown to observe statutory
time now
 A-G may discontinue any criminal proceedings on indictment. (immunity in
exchange for info)
o Queens Constitutional Prerogatives
o Personal discretionary powers remain in Sovereigns hands
 Right to advise, encourage and warn ministers in private
 Appoint MP’s including PM
 Assent legislation
 Right to prorogue or dissolve parliament. Conventionally effectively exercised
by PM

Control of Prerogative

 Statute and Prerogative

o De Kyser principle – Even where prerogative power exists in an area, the Crown could
not simply choose whether to act under that power or under statutory authority.
o Cases since De Kyser have held that Parliament may abolish or modify the prerogative
by express words or necessary inducement.
o Prerogative powers can be impliedly suspended by Statute – similar to De Kyser
principle
o May be examples where statute doesn’t expressly over rule prerogative. Eg may still
exist if exercised for public good
 Judicial Control
o No new prerogatives can come into existence. Ie prerogative powers must have existed
before advent of modern parliament

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 o Existence and scope of power generally subject to judicial review.
o Exercise of Prerogative also subject to judicial review however, since GCHQ case the
reviewability of the exercise of prerogative power depends upon the subject matter
of the prerogative
o Example of where exerise of prerogative power was not justiciable was in case about
BIOT (british Indian ocean territory) where court said it wasn’t for the court to
substitute their judgment for that of the Secretary of State as to what was conducive to
peace, order and good government of the BIOT.
o Legislation was put forward in 2010 and only changes to prerogative power were:
 Advance parliamentary scrutiny of treaties before being entered into by UK;
and
 Civil service and management however, Govt retained power to vet civil
servants for security purposes

Judicial Review

 Judicial review only ever involves the review of the Executives Actions
 Doctrine of Parliamentary Sovereignty means legislature actions cannot be reviewed.
 Usually enacted when executive acts in way that infringes on proper role of parliament
 4 procedural hurdles for judicial review claims
o Defendant must be amenable to JR
o Claimant must have sufficient interest in the matter –
 Must be logical connection between claimant and the claim. Ie busy bodies etc
not allowed
 Easiest way to show connection is claimant directly affected by decision
 Rules on standing, however, much wider under HRA
 Where policy reasons dictate parties may be excluded
o Matter must be brought within the time limit
o Must be procedural exclusivity (issue must be matter of public law)

Grounds for Judicial Review

 Illegality
Contains 6 elements
o True Ultra Vires
o Errors of Law and Errors of Fact
 Where there is precedent (jurisdictional) fact errors

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  Facts with no supporting evidence
 Mistakes of fact
These are the only grounds for Judicial review of facts
o Relevant/Irrelevant Considerations
 Must take into account relevant statute itself
 Anything taken into account which it shouldn’t have or vice versa
o Improper Purpose
 Decision make must follow purpose of the act
o Delegation of Discretion
 It is a fundamental principle of admin law that the person seized with
discretion should exercise it
 Carltona case appears to establish exception to the above in that delegation is
acceptable within departments as compared to between departments
 Unless expressly or impliedly excluded, delegation within dept’s is ok
o Fettering of Discretion

 Unreasonableness/Irrationality
o Associated Picture House v Wednesbury Corp
 1st head of challenge - Person entrusted with decision must direct himself
properly in law. Call attention to matters he is bound to consider and exclude
matters which are irrelevant. If he doesn’t obey these rules he is said to be
acting “unreasonably”
 2nd head of challenge – decision on a competent matter is so unreasonable that
no reasonable authority could ever have come to it, then the courts can
interfere……this would require something overwhelming.
 The Rise of Proportionality
o This requires that the measures adopted to achieve a goal do not go further than are
necessary.
o Note – Wednesbury concept still applies and has not been supplanted by
Proportionality test yet.

Procedural Impropriety

 Two different requirements

o Observe the common law rules of natural justice;
 Right to a fair hearing -
 Know the case against you
 Make representations

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  Call witnesses
 Have legal representation
 Be given reasons for a decision
 Rule against bias
o Comply with statutory procedural requirements – Decision maker must conform to the
rules which Parliament lays down. If they don’t, they will be acting Ultra Vires

Public Order Law

 Relate to Public Order Act 1986

 Act Covers the following offences
o Riot (Section 1) – Triable by indictment only (max 10 years, unlimited fine or
both)
 Requirements
 12 or more people present together
 used or threatened unlawful violence (all charged must use) for a
common purpose; and that
 The conduct of them (taken together) was such to cause
o A person of reasonable firmness
o Present at the scene
o To fear for his personal safety
 Conduct under this section might have the following characteristics
 Normal forces of law and order broken down
 Emergency services access impeded by mob activity against police or
other civilian authorities
 Scale and ferocity of disorder, severe disruption and fear is caused to
members of the public
 Violence carries potential for significant impact on non-participants
 Organized or spontaneous large scale acts of violence on people or
property
o Violent Disorder (Section 2) -
 Requirements
 3 or more people present together
 used or threatened unlawful violence
 conduct of them taken together would cause
o person of reasonable firmness

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 o present at the scene
o to fear their personal safety
 can be committed in public or private place
 egs of this offence
 Fighting with use of weapons between rival groups in public place
 Outbreak of violence carrying potential to impact on moderate scale of
non-participants
 Serious disorder at public place where missiles thrown and other
violence used against police or other civil authorities
 Note – don’t need to charge all offenders, unlike with riot. Charge need only
make clear defendant was one of 3 or more people involved.
Nor does offence require cooperation amongst participants they just need to be
in same place at same time.
 Note – only charge offence for serious disorder falling short of Riot
requirements
o Affray (Section 3)
 Requirements
 Unlawful violence towards another
 Conduct is such as would cause
o A person of reasonable firmness
o Present at the scene
o To fear for their personal safey
 Mere words aren’t enough here. Must be conduct which is threatening and
directed towards a person or persons.
 Note – conduct towards property is not enough
 Can be committed in public or private
 Test for notional bystander is the “hypothetical bystander” not the actual
victim.
 Eg’s of types of crimes under the section
 Fight between 2 or more people where members of general public
present
 Indiscriminant throwing of objects towards group of people where
serious injury is or is likely to be caused
 Wielding/brandishing of a weapon either towards people or the police
 Incidents within a dwelling shouldn’t be charged. Assault and/or
battery more suitable.
 Crown court more appropriate venue for this to be heard

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o Using Threatening, abusive or insulting words or behaviour causing fear of or
provoking violence (Section 4)
 Requirements
 Above listed behaviour towards another person
 In public or private when not confined to a dwelling house
 Either with intent to:
 Cause a person to believe immediate unlawful violence will be used
against them; or
 Provoke the immediate use of violence by that person or another; or
 Its likely that such violence will be provoked.
 Egs are:
 Threats made towards innocent individuals carrying out public service
duties
 Throwing of missiles by a person taking part in a demonstration or
other public gathering where no injury caused
 Incidents which don’t justify charge or assault where individual picked
on by gang
o Using threatening abusive or insulting words or behaviour, or disorderly
behaviour intending to and causing harassment, alarm or distress (Section 4a)
 Requirements
 Above behaviour in a public or private place but not a dwelling
 With intent to cause and thereby causing harassment, alarm or distress
 Carries larger punishment than Section 5 below and intended for more
directed and persistent type of behaviour required to prove the elements of
intent and causation.
 Where conduct is so persistent towards individual Protection from harassment
act should be used.
 This section is capable of being charged as a discrete racially or religiously
aggravated offence.
 This is an either way offence
 2 years on indictment a fine or both
 6 months as summary offence or a fine not exceeding statutory maximum
o Using threatening, abusive or insulting words or behaviour, or disorderly
behaviour likely to cause harassment, alarm or distress (Section 5)
 Requirements
 Above behaviour in a public or private place not a dwelling
 With intent or awareness that:

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 o behaviour may be disorderly; or
o such behaviour may be threatening, abusive or insulting
 must be within the hearing or sight of person likely to be caused
harassment, alarm or distress.
 Question of fact whether behaviour is disorderly.
 Doesn’t require an element of violence, actual or threatened and it includes
conduct not necessarily threatening, abusive or insulting.
 Examples of the offence:
 Causing a disturbance in residential or common part of block of flats;
 Persistently shouting abuse or obscenities at passers-by;
 Pestering people waiting to catch public transport or otherwise waiting
in a queue
 Rowdy behaviour in a street at night which might alarm residents or
passersby, especially minorities;
 Causing a disturbance in a shopping precinct or other area where the
public might gather
 Section should be used in cases which amount to less serious incidents of anti-
social behaviour.
 If any violence has been used not appropriate to charge this offence unless the
physical behaviour amounts to no more than a glancing blow, minor bruising
or grazing.
 Where a person drunk in public to extent accused loses all self control, a charge
of drunk and disorderly should be preferred.

Human Rights Act, ECHR and Public Order Act

 Freedom of assembly regarded as residual right which everyone can do as long as no breach of
law.
 Rare instances positive right to demonstrate bestowed in domestic law.
 This has lead to many challenges of Public Order Act to the ECHR
 Austin and Others Case
o 1,500 protestors near oxford circus
o Police tried to disperse crowds but couldn’t because people on both sides of cordon,
established by police, were violent.
o Dispersal finished at 9.30pm
o The ECtHR held by majority that:
 People cordoned off didn’t have their Article 5 (Right to liberty and security)
rights breached.

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 Was held cordoning off people was least intrusive way of protecting public in
volatile and violent situation.

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