LA1020 Public law

Pre-exam update 2023

The following developments should be noted.

TOPIC 3: MULTI-LAYERED GOVERNMENT: DEVOLUTION IN

THE UK
3.4 Devolution in Scotland
Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to
the Scotland Act 1998 [2022] UKSC 31
The Lord Advocate of Scotland, the senior Law Officer in Scotland, made a reference to
the UK Supreme Court under paragraph 34 of Schedule 6 to the Scotland Act 1998, which
provides that the Lord Advocate ‘may refer to the Supreme Court any devolution issue
which is not the subject of proceedings’. The question on which advice was sought was
whether the Scottish Parliament has legislative competence to enact an independence
referendum Bill, or in other words whether the Scottish Parliament could call an
independence referendum without Westminster’s consent.
On 23 November 2022 the Supreme Court's judgment made clear that the Scottish
Parliament does not have competence to legislate to hold a referendum (the so-called
IndyRef2) on Scottish independence. Such a development would clearly relate to reserved
matters, ‘in particular, it relates to (i) the Union of the Kingdoms of Scotland and England
and (ii) the Parliament of the United Kingdom’ (para. 92) and would ‘have important
political consequences relating to the Union and the United Kingdom Parliament’ (para.
80). The Court also explained that ‘It is plain that a Bill which makes provision for a
referendum on independence – on ending the Union – has more than a loose or
consequential connection with the Union of Scotland and England…[and] has more than a
loose or consequential connection with the sovereignty of that Parliament’ (paras 81 and
82).
3.6 Devolution in Wales
The Independent Commission on the Constitutional Future of Wales was established by
the Welsh Government in late 2021 and is expected to produce a final report at the end of
2023. It has two far-reaching objectives:

1. To consider and develop options for fundamental reform of the constitutional

structures of the United Kingdom, in which Wales remains an integral part.
2. To consider and develop all progressive principal options to strengthen Welsh
democracy and deliver improvements for the people of Wales.

In March 2022, the Commission launched a public consultation – ‘Have your say: the
constitutional future of Wales’ – which was described as a ‘national conversation’ inviting
citizens and stakeholders to share their views on all aspects of the current governance of
Wales and potential reforms.

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3.7 Devolution in Northern Ireland

3.7.2 Recent developments
The Northern Ireland Assembly is currently without a functioning Executive, following
elections in May 2022. The Northern Ireland (Executive Formation etc) Bill introduced to
Parliament in November 2022, provides a short extension to the period for Executive
formation and also enables the Secretary of State to amend MLA salaries while the
Assembly is unable to conduct business.
For a summary of the various periods of suspension over the life of the Northern Ireland
Assembly, see this news article.

TOPIC 5: THE CROWN, MONARCH AND THE ROYAL

PREROGATIVE POWERS
Introduction
A new monarch
Her Majesty Queen Elizabeth II, the longest-reigning British monarch in history having
served as Queen for 70 years, died on 8 September 2022. On her death, His Majesty King
Charles III became the monarch and was officially proclaimed king before the Accession
Council on 10 September 2022.
King Charles is Head of State of the UK and 14 other Commonwealth realms. A number of
Commonwealth countries, including Antigua and Barbuda and Jamaica, have indicated
their intention to move towards becoming republics.
In November 2022, the Counsellors of State Bill was introduced in the House of Lords to
add The Earl of Wessex and The Princess Royal to the persons to whom royal functions
may be delegated as Counsellors of State. This is allowed for under s.6(1) of the Regency
Act 1937 as amended. This means that they (along with the Prince of Wales) will be able
to undertake some functions, such as the granting of Royal Assent to legislation,
appointment of ministers and ratification of treaties, on behalf of King Charles when he is,
for example, travelling overseas or ill. The Government has asked Parliament to expedite
or ‘fast track’ this legislation ‘because it is an expedient measure, allowing for additional
Counsellors of State to be in place before a delegation to Counsellors is next required (for
example should His Majesty need to travel overseas)’.
5.2.3 Prorogation and summoning of Parliament
Dissolution and Calling of Parliament Act 2022
In March 2022, the Dissolution and Calling of Parliament Act became law. The Act repeals
the Fixed-term Parliaments Act 2011 (s.1) and removes the requirement for Parliamentary
approval (which was established in the Fixed-term Parliaments Act 2011) if a Prime
Minister wants to call a general election.
There are three other notable aspects:
• It revives the prerogative powers to dissolve Parliament and to call a new
Parliament ‘as if the Fixed-term Parliaments Act 2011 had never been enacted’
(s.2)
• There is a broad ouster clause contained in s.3 ‘Non-justiciability of revived
prerogative powers’, which the explanatory notes to the Bill describe as confirming
that ‘the exercise (or purported exercise) of powers relating to the dissolution of

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Parliament, and the calling of a new Parliament, is non-justiciable and cannot be

reviewed by a court or tribunal’.
• It provides that Parliament shall sit for a maximum term of five years (s.4)

TOPIC 6: THE EXECUTIVE

6.1 The Prime Minister
There have been three different Prime Ministers in the same calendar year – the Rt Hon
Boris Johnson MP until 6 September 2022 (from 24 July 2019), the Rt Hon Elizabeth Truss
from 6 September to 25 October 2022 and, finally, from 25 October 2022, the Rt Hon Rishi
Sunak MP.
6.4.4 Recent developments
Ministerial resignations
Lord Agnew, a Minister in the Cabinet Office with responsibility for counter-fraud, resigned
in January 2022 over what he described as ‘woeful’ oversight and ‘schoolboy errors’ in
respect of Government failures to adequately handle fraudulent COVID business loans. He
said: ‘it is my deeply held conviction that the current state of affairs is not acceptable’ and
resigned with immediate effect. You can read a news article and watch his resignation
speech in the House of Lords and read it reported in Hansard.
In the final days of Boris Johnson’s tenure as Prime Minister, there were an
unprecedented number of ministerial resignations, from senior Cabinet ministers to junior
Parliamentary Under Secretaries of State. During his time as Prime Minister, there were 45
ministerial resignations in total. You can read more about these events.
In October 2022, the Home Secretary, Suella Braverman, resigned over a breach of the
Ministerial Code. She had sent official documents to a parliamentary colleague using her
personal email. You can read both her resignation letter and the then Prime Minister’s
response.
In November 2022, the Rt Hon Sir Gavin Williamson CBE MP, resigned as a Cabinet
Office Minister, after allegations of bullying stemming from messages he had sent to the
Chief Whip. You can read his resignation letter and the Prime Minister’s response.
Enforcement/application of the Ministerial Code
FDA v Prime Minister [2021] EWHC 2192 (Admin) – in December 2021, the High Court
judgment held that although the ‘proper interpretation’ of para. 1.2 of the Ministerial Code
was a justiciable issue, the FDA’s claim was ultimately dismissed, as the Prime Minister
did not misdirect himself as to the meaning of the Ministerial Code when considering the
allegations against the Home Secretary.
Standards in public life and the Ministerial Code
In late 2021, the Committee on Standards in Public Life published the 'Upholding
standards in public life' report, which made a number of recommendations to government
on upholding standards in public life.
In May 2022, the government published a policy statement setting out revisions to the
Ministerial Code and the Terms of Reference of the Independent Adviser on Ministers’
Interests. The Independent Adviser on Ministers’ Interests provides the Prime Minister with
independent advice on matters relating to the Ministerial Code, as well as providing advice
to Ministers on the management of their interests.

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The policy statement includes:

• revised terms of reference for the Independent Adviser which include an enhanced
process for the initiation of investigations under the Ministerial Code and enable the
Independent Adviser to initiate an investigation; and
• the updated Ministerial Code includes new detail on proportionate sanctions (para.
1.7) for a breach of the Code, as recommended by the Committee on Standards in
Public Life and Lord Geidt (the former Independent Adviser on Ministers’ Interests).
It also clearly (re)states that responsibility for the Ministerial Code and for the organisation
of the Government lies solely with the Prime Minister, as Head of the Executive explaining
that:
It is for the Prime Minister alone to recommend the appointment, dismissal or acceptance of
resignation of Her Majesty’s Ministers; and Ministers hold office for as long as they have the
confidence of the Prime Minister.
The Prime Minister is often described as the ‘arbiter’ of the Ministerial Code. But as
expressed by the High Court:
That is not intended to mean that it is for the Prime Minister to give any interpretation he
chooses to the words used in the Ministerial Code. It reflects the fact that, ultimately, the
Ministerial Code sets the standards that the Prime Minister expects of ministers and it is for
the Prime Minister to determine, ultimately, whether there has been such a departure from
the standards expected of ministers that he can longer have confidence in them.
FDA v Prime Minister [2021] EWHC 2192 (Admin) (para. 60)

TOPIC 7: PARLIAMENT
7.1 The House of Commons
MPs Code of Conduct
The House of Commons Committee on Standards Report (of November 2021) contained a
number of proposals for reforming the Code of Conduct for Members of Parliament. These
were debated in the House of Commons on 18 October 2022.

TOPIC 8: LEGISLATION
8.2.1 Pre-legislative scrutiny
Draft Bills
In 2022–23 the only draft bill published has been the Draft Mental Health Reform Bill.

TOPIC 9: THE JUDICIARY

9.4 Judicial appointments
Two Supreme Court Justices retired in 2022. One was replaced with Sir David Richards, a
former Court of Appeal judge. The other vacancy was, however, filled with the
reappointment of Lord Lloyd-Jones. This is the first time this has happened and was only
possible because the mandatory retirement age of Supreme Court Justices was increased
from 70 to 75. You can read further background information.

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9.5 Judicial diversity

The JAC has recently published a report following an international research project looking
at measures used by other common law jurisdictions to improve judicial diversity to better
understand if any of these could be successful in England and Wales.

TOPIC 10: JUDICIAL REVIEW

10.2 The nature and scope of judicial review
Recent developments – the Judicial Review and Courts Act 2022
The Judicial Review and Courts Act 2022 is complex and wide-ranging and has been at
the centre of significant debate. The explanatory notes stated that the Bill ‘introduces
reforms to Judicial Review to make sure the Government and public authorities are subject
to the law, apply the intent of Parliament, and protect individuals’ rights’. In relation to
judicial review, the Act contains measures to provide for new forms of remedy in
suspended quashing orders (which give the courts a discretion to make a quashing order
that would essentially have a delayed effect) and give the courts a discretion to provide
prospective-only quashing orders. It also effectively reverses the Supreme Court’s
judgment in R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28 by
removing so-called Cart judicial reviews via an ouster clause. This removes a person’s
ability to judicially review a decision of the Upper Tribunal to refuse permission to appeal
from the First-tier Tribunal.
10.4.5 Standing
R (AB) v A County Council [2022] EWHC 2707 (Admin)
Permission to bring a claim for judicial review of the implementation of school policies on
responding to gender dysphoria and other gender issues in schools, which the claimant (a
teacher) sought to argue breached the Education Act 2002, Equality Act 2010 and the
Human Rights Act 1998 was refused because the claimant lacked standing.
The Good Law Project and The Runnymede Trust, R (on the application of) v The Prime
Minister [2022] EWHC 298
The claimants (a campaigning organisation, the Good Law Project, and a think tank, the
Runnymede Trust) brought a challenge to the government’s decision to appointment
particular individuals (Baroness Harding and Mike Coupe) to senior public positions during
the COVID-19 pandemic. They argued these ‘closed’ nature of these appointments
breached the public sector equality duty and were discriminatory and that there was also
apparent bias. The claims against the Prime Minister and claims brought by the Good Law
Project were dismissed. The Runnymede Trust did have standing in relation to public
sector equality duty and the Court granted a declaration that the Secretary of State for
Health and Social Care had breached this duty in relation to the decisions on how to make
these appointments but emphasised this was a ‘duty of process not of outcome’. In the
judgment, it was noted that ‘not every member of the public can complain of every
potential breach of duty by a public body’. Neither of the claimants had standing to pursue
the discrimination claims and the Court held that regardless the appointments were not
discriminatory and finally that the challenge of apparent bias failed both on its facts and
‘because the principles of apparent bias have no application to employment recruitment
exercises’.

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10.5.1 Illegality
R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial
Strategy [2022] EWHC 1841 (Admin)
Legal challenges brought by Friends of the Earth and others in a jointly heard case were
partially upheld by the High Court. The claim was that Government’s decarbonisation (i.e.
‘net zero’) strategy was unlawful and breached ss.13 and 14 of the Climate Change Act
2008. The court ruled that the Minister did not have legally sufficient information to enable
him to adopt the net-zero strategy. In addition, the strategy itself did not contain critical
information needed to enable Parliament and the public to scrutinise it and to understand
the risks to the delivery of its policies.
10.5.2 Procedural impropriety
P, R (on the application of) v London Borough of Croydon [2022] EWHC 2886 (Admin)
P succeeded in a challenge over the level of funding (provided by the local authority) for
her package of care. The decision to provide the claimant with 35 hours of support per
week was unlawful. It failed to meet her needs contrary to the requirements of the Care
Act 2014, which requires the local authority to assess and meet the needs of adults who
meet the eligibility criteria. The claimant’s care and support plan had been drafted without
the involvement of the claimant or her family, which was contrary to the statutory guidance
and a ‘significant procedural flaw’ (para. 34). The personal budget was neither transparent
nor sufficient. A quashing order was made in relation to the decision to fund 35 hours of
support each week and the care and support plan.
10.5.3 Irrationality
R (on the application of Gardner) v Secretary of State for Health and Social Care [2021]
EWHC 967 (Admin)
Both claimants had fathers who died of COVID-19 in a care home during the first wave of
the pandemic. The challenge was brought in about various government policies on care
homes during the pandemic and, in particular, about the discharge of patients from
hospitals to care homes arguing that these breached their fathers’ rights under the ECHR
or that these policies were unlawful under common law judicial review principles. The
Court dismissed the claims under the Human Rights Act but made a declaration that the
policy ‘was irrational in failing to advise that where an asymptomatic patient (other than
one who had tested negative [for COVID-19]) was admitted to a care home, he or she
should, so far as practicable, be kept apart from other residents for 14 days’ (para. 298).
The Heath Secretary, in deciding to adopt these policies, had failed to take into account
the relevant consideration of the risk to elderly and vulnerable residents from
asymptomatic transmission.

TOPIC 11: HUMAN RIGHTS IN THE UK

11.9.1 Recent developments
The Bill of Rights Bill 2022–23 to reform the law relating to human rights by repealing and
replacing the Human Rights Act was introduced to Parliament by the Lord Chancellor and
Secretary of State for Justice in June 2022. It was dropped under Liz Truss as Prime
Minister but after the new Prime Minister, Rishi Sunak, reappointed Dominic Raab as Lord
Chancellor, it was confirmed that the Bill would proceed. A date has yet to be set for
second reading.

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