Public Law Guide

Public law
Eloise Ellis
This module guide was prepared for the University of London by:
u Eloise E.C. Ellis, Senior Lecturer in Law, University of East Anglia.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the author is unable to enter into any correspondence
relating to, or arising from, the guide.
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Public law Contents page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Part I The UK constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1 Introducing public law . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 What is public law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Overview of the module . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Study materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Hints and tips for studying public law . . . . . . . . . . . . . . . . . . . . . 7
1.5 Preparing for the examination . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 The UK constitution: introduction . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Defining constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 What does a constitution do? . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Sources of the UK constitution . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Constitutional conventions . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 The question of codification . . . . . . . . . . . . . . . . . . . . . . . . . 15
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . . . . 16
3 Multi-layered government: devolution in the UK . . . . . . . . . . . . 17

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 A brief history of the UK . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.2 Defining devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.3 Background developments . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.4 Devolution in Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.5 Scottish independence . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.6 Devolution in Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Devolution in Northern Ireland . . . . . . . . . . . . . . . . . . . . . . . 23
3.8 English Votes for English Laws (EVEL) . . . . . . . . . . . . . . . . . . . . . 24
3.9 Intergovernmental relations . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.10 Brexit and devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.11 COVID-19 and the four nations of the United Kingdom . . . . . . . . . . . . 25
4 Constitutional principles . . . . . . . . . . . . . . . . . . . . . . . . 27
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.1 Parliamentary sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 The rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Separation of powers in the UK constitution . . . . . . . . . . . . . . . . . 43
Part II Institutions of government – powers and functions . . . . . . . . . 49

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5 The Crown, monarch and the royal prerogative powers . . . . . . . . . 51

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.1 Defining the royal prerogative/prerogative powers . . . . . . . . . . . . . 53
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5.2 Constitutional/personal prerogative powers of the monarch . . . . . . . . . 54
5.3 Continued justification for prerogative powers . . . . . . . . . . . . . . . 55
5.4 Parliamentary control of prerogative powers . . . . . . . . . . . . . . . . 56
5.5 Judicial control of prerogative powers . . . . . . . . . . . . . . . . . . . . 57
5.6 Reform of the prerogative . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6 The executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.1 The Prime Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 The Cabinet and other ministers . . . . . . . . . . . . . . . . . . . . . . . 63
6.3 The civil service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.4 Political accountability via ministerial responsibility . . . . . . . . . . . . . 64
7 Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.1 The House of Commons – composition . . . . . . . . . . . . . . . . . . . 71
7.2. Key positions in the House of Commons . . . . . . . . . . . . . . . . . . . 72
7.3 The House of Lords – composition . . . . . . . . . . . . . . . . . . . . . 73
7.4 House of Lords reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.5 Relationship between the House of Commons and the House of Lords . . . . 75
8 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.1 Primary legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8.2 Overview of the legislative process . . . . . . . . . . . . . . . . . . . . . 79
8.3 Framework Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.4 Multi-topic Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.5 Delegated, secondary or subordinate legislation . . . . . . . . . . . . . . . 82
9 The judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 Judicial independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.2 Judicial accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.3 Judicial impartiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.4 Judicial appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.5 Judicial diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Part III Administrative law (legal accountability via judicial review) . . . . 91
10 Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.1 Defining judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.2 The nature and scope of judicial review . . . . . . . . . . . . . . . . . . . 95
10.3 Amenability to judicial review . . . . . . . . . . . . . . . . . . . . . . . . 96
10.4 Procedural requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.5 Grounds of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
10.6 Independent Review of Administrative Law . . . . . . . . . . . . . . . . 106
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . . . 106
Public law Contents page iii
Part IV Civil liberties and human rights . . . . . . . . . . . . . . . . . . 107
11 Human rights in the UK . . . . . . . . . . . . . . . . . . . . . . . . . 109

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
11.1 Defining human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.2 Categories of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.3 The international dimension . . . . . . . . . . . . . . . . . . . . . . . . 112
11.4 Absolute and qualified rights . . . . . . . . . . . . . . . . . . . . . . . . 115
11.5 Traditional protection of civil liberties in English law . . . . . . . . . . . . 116
11.6 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.7 Parliamentary and external scrutiny . . . . . . . . . . . . . . . . . . . . 123
11.8 Devolution and the Human Rights Act 1998 . . . . . . . . . . . . . . . . 123
11.9 Proposals for reform – a British Bill of Rights? . . . . . . . . . . . . . . . . 123
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . . . 125
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
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Notes
Public law page iii
Module descriptor
GENERAL INFORMATION
Module title
Public law
Module code
LA1020
Module level
4
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk
Credit value
30
Courses on which this module is offered

CertHE, LLB, EMFSS
Module prerequisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Public law is one of the seven foundation modules required for a qualifying law degree
in England and Wales and is a core requirement of the University of London LLB and
CertHE Common Law courses.
This module is concerned with the core features of the UK constitution, the
institutions of government and their powers and functions. The notion of
accountability of government, both politically and legally, is important. The internal
structure of the United Kingdom after devolution is considered along with the
relationship of the United Kingdom with external/international bodies – for example,
through membership of the Council of Europe. Emphasis is placed throughout on the
changing nature of the UK constitution – in particular, the move from a political to a
more legal constitution – as well as the case for further change.
MODULE AIM
This module introduces students to the role of the main institutional actors (the
legislature, the executive and the judiciary) within the UK constitution and the
processes of constitutional change. Students will be able to analyse key issues
governing the relation between citizens and the state, including sovereignty and the
division of powers between legislature, executive and administration.
page iv University of London
LEARNING OUTCOMES: KNOWLEDGE

Students are expected to have knowledge and understanding of the main concepts
and principles of Public law. In particular they should be able to:
1. Explain the nature and purpose of constitutions, including the ways in which
governmental powers are generally allocated among the institutions of the state,
and the way in which courts operate to review administrative action and protect
basic rights;
2. Assess the constitutional implications for the UK of the Human Rights Act 1998 and
the role of the European Court of Human Rights;
3. Understand the social and political context in which Public law is situated;
4. Evaluate suggestions for constitutional reform in the United Kingdom.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:
5. Conduct straightforward legal research, retrieving information from a range of data

sources and including interpretation of textual and numerical data;
6. Distinguish relevant facts and issues presented in a range of legal material;
7. Interpret primary and secondary legal sources, including case law and statutes, to
answer questions;
8. Construct a coherent argument in response to oral or written stimuli.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.
MODULE SYLLABUS
a. The conceptual framework of public law. Introducing public law. The UK constitution
and its core institutions. Parliamentary supremacy. The rule of law.
b. Executive and legislative functions. Limited Government and the partial separation
of powers. Ministerial accountability. Crown and prerogative powers. UK primary
legislation. UK delegated legislation. Constitutional conventions.
c. Multi-layered governance. UK constitutional law. Devolution.
d. Courts and the constitution. Judicial independence and accountability. Principles of

judicial review I: Illegality. Principles of JR II: Procedural fairness. Principles of JR III:
Irrationality and proportionality.
e. Human rights. Human rights protection. HRA jurisprudence.
LEARNING AND TEACHING
Module guide
Module guides are the student’s primary learning resource. The module guide covers
the topics contained in the syllabus and provides students with the grounding to
complete the module successfully. Each chapter of the guide includes essential and
further reading and a series of activities designed to test knowledge and develop
relevant skills. It is supplemented each year with the pre-exam update, made available
on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
u a module page with news and updates;
u a complete version of the module guides;

Public law page v
u online audio presentations;
u pre-exam updates;
u past examination papers and reports;
u discussion forums where students can debate and interact with other students;
u quizzes – multiple choice questions with feedback are available for some modules,
allowing students to test their knowledge and understanding of the key topics.
The Online Library

The Online Library provides access to:
u the professional legal databases LexisLibrary and Westlaw;
u cases and up-to-date statutes;
u key academic law journals;
u law reports;
u links to important websites.
Core reading
Students should refer to the following core text. Specific reading references are
provided for this text in each chapter of the module guide:
¢ Le Sueur, A., M. Sunkin and J.E.K. Murkens Public law: text, cases and materials.
(Oxford: Oxford University Press, 2019) fourth edition [ISBN 9780198820284].
Assessment
Learning is supported by means of a series of activities in the module guide. Generic
feedback on most of the activities is provided at the end of the guide. The activities
are designed to test knowledge and understanding and also assist students to develop
skills listed in outcomes 6–8. There are additional online activities. The formative
activities, also on the VLE, prepare students to achieve the module learning outcomes
tested in the summative assessment.
Summative assessment is through a three hour and 15 minute unseen examination.

Students are required to answer four questions out of eight.
Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
Permitted materials
None.
page vi University of London
Notes
Part I The UK constitution
1 Introducing public law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 What is public law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Overview of the module . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Study materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Hints and tips for studying public law . . . . . . . . . . . . . . . . . . . 7
1.5 Preparing for the examination . . . . . . . . . . . . . . . . . . . . . . 7

page 4 University of London
Introduction
This module guide is designed to be used in conjunction with the core text, the
resources on the virtual learning environment (VLE) (such as Lecture Plus) and other
readings and resources. It provides an introduction to the aspects of constitutional
and administrative law which are on the syllabus for the University of London Public
law module. You are advised to read far beyond the module guide both in terms of
breadth and depth.
Each chapter in the module guide directs you to parts of the core text, other readings
such as cases, journal articles, blog posts and the VLE. Chapters will also include various
independent tasks or exercises or direct you to the VLE to complete such tasks. There
are also opportunities for self-assessed formative assessment throughout the module
guide: again, this might be via activities on the VLE. These additional resources, and
your active engagement with them, form an important part of your overall learning
experience and help to prepare you for the examination.
Public law 1 Introducing public law page 5
1.1 What is public law?

You will soon discover that public law differs in a variety of ways from other modules
which you may study. It relates very closely to the political system, the operation of
government, current affairs and political developments and requires you to engage
with these matters in a manner that would perhaps be less important in a so-called
‘black letter law’ subject. In the Public law module, you will find that although case law
is important, particularly in certain areas such as judicial review, often you will also
draw upon examples and authorities from Parliament, academic writings and other
scholarly sources to provide the all-important authority and evidence.
It is important, at the outset, to recognise and, throughout your studies, to remember

both the contemporary significance of public law and crucially that many of the topics
within this module are interrelated rather than discrete. You might like to think of
your study of each chapter as a building block. When you have reached the end of the
module guide the overall picture becomes clear.
1.2 Overview of the module

The Public law module is roughly divided into several (interrelated) areas:
u the United Kingdom constitution: sources, principles and structure
u institutions of government: powers, functions and accountability
u administrative law and judicial review
u civil liberties and human rights.
The core underlying themes of the module could be described as power and
accountability.
It is also important to recognise that the United Kingdom constitution has faced a
number of challenges over the past decades, with reforms to the judiciary, the advent
of devolution, membership of the European Union, domestication of the European
Convention on Human Rights and particularly now with contemporary developments
such as Brexit. It is therefore worth noting, and remembering throughout your public
law studies, the following words of Professor Vernon Bogdanor:
We have all been living through an unprecedented period of constitutional change, an era
of constitutional reform which began in 1997 and shows no sign of coming to an end.
1.3 Study materials
How to use the module guide

This module guide provides an introduction to and an overview of the core areas on
the syllabus. It should be regarded as a starting point rather than all that you need to
read. It is crucial that you supplement this guide with much wider and deeper reading,
both with the core text (see below) and other materials to which you are directed.
Independent and further reading is vital to deepen your level of understanding and
help you to succeed in your studies.
You will find that your understanding is improved and deepened by reading a range of
journal articles, extrajudicial speeches and writings, judgments and academic blogs.
Throughout this module guide various readings are recommended but this is a
starting point – there is much, much more available. You will also find at times a brief
note explaining what the reading is and/or why it might be of particular interest. This is
to help you to choose which readings to focus on at different times in your studies.
Core text
¢ Le Sueur, A., M. Sunkin and J.E.K. Murkens Public law: text, cases and materials.
(Oxford: Oxford University Press, 2019) 4th edition [ISBN 9780198820284].
Additional textbooks
¢ Bradley, A.W., K.D. Ewing and C.J.S. Knight Constitutional and administrative law.
(London: Pearson, 2018) 17th edition [ISBN 9781292185866].
¢ Loveland, I. Constitutional law, administrative law, and human rights: a critical

introduction. (Oxford: Oxford University Press, 2018) 8th edition
[ISBN 9780198804680].
¢ Parpworth, N. Constitutional and administrative law. (Oxford: Oxford University

Press, 2020) 11th edition [ISBN 9780198847120].
Other books
¢ Bingham, T. The rule of law. (London: Penguin, 2010) [ISBN 9781846140907].
¢ Jowell, J. and C. O’Cinneide The changing constitution. (Oxford: Oxford University

Press, 2019) ninth edition [ISBN 9780198806363]. A recent collection of essays by
academic authors on a range of topical issues.
¢ King, A. The British constitution. (Oxford: Oxford University Press, 2010)

[ISBN 9780199232321]. Written some years ago now but has come to be regarded
as a classic exposition.
¢ Tomkins, A. Public law. (Oxford: Clarendon Press, 2003) [ISBN 9780199260775].

Although now rather old, this fairly short book provides an accessible and
interesting overview and introduction to the subject.
Throughout the module guide, you will be directed to various other readings as and
when relevant. Please try to ensure that you always use the most recent editions
available.
Journal articles
Throughout this guide, you will be referred to articles in academic journals. The
most relevant journal in this field of law is Public Law, which has four issues per year.
Parliamentary Affairs (although predominately a political studies journal rather than a
legal one) also has much to commend it to students of public law. It will also be worth
looking at some of the more general law journals such as the Modern Law Review and
the Law Quarterly Review among others. You can access these via the Online Library.
Academic blogs
It is also a good idea to subscribe to email updates from some of the academic blogs
on public law matters, such as the UK Constitutional Association blog and the UK
Human Rights blog.
Other resources
The UK Parliament website is a great friend to students of public law, in particular the
glossary, which is available at www.parliament.uk, and the high quality research papers
and library notes produced by Parliamentary staff. This is also where you can find
various Committee Reports and the recording of debates in the House of Commons
and House of Lords (Hansard).
Public law 1 Introducing public law page 7
1.4 Hints and tips for studying public law

You will discover throughout your studies many new ideas, concepts and principles.
While it will take time for all of this to come together, it helps from the beginning to
start to compile a glossary. When you encounter unfamiliar terminology – a word or
phrase which is new to you (or which has a particular meaning in the context of public
law) – seek out a clear and succinct definition and add this to your glossary. You will
find this simple approach helps to consolidate your learning and understanding and,
in time, will assist you in describing and explaining ideas and principles clearly and
concisely, an important skill you will need for success in your examinations. One of the
recommended textbooks is the obvious starting point for finding such a definition, but
it is also often worth looking at the glossary available on the UK Parliament website.
As you will soon discover, public law relates closely to the workings of government and
the political system and, as such, has a very contemporary relevance. It is important,
therefore, (as you will be told at various times) to ensure you develop and maintain
an awareness and understanding of current developments. This can be particularly
challenging for international students but with judicious reading of good quality
broadsheet newspapers (not tabloids), following news sources such as the BBC and
drawing upon reliable scholarly resources, you will become familiar with the structure
and institutions in the United Kingdom constitution.
1.5 Preparing for the examination

Important: we strongly advise you always to check both the current Regulations
for relevant information about the examination and the VLE. You should also
carefully check the rubric/instructions on the paper you actually sit and follow
those instructions. At the end of the module, you will sit a three hour and 15 minute
examination, which you will have to pass in order to progress with your course.
The examination contains eight questions, most of which will be essay questions.
These require you to demonstrate a good level of understanding of the law and to
approach the issues analytically. A good student will do more than merely describe,
they will critically analyse the legal issues and draw upon relevant authority to support
the points and arguments made throughout their work. Looking at past examination
papers and the Examiners’ reports will form one useful aspect of your revision. It is
important not only to understand the material but also to be able to demonstrate that
knowledge clearly and concisely.
Notes
2 The UK constitution: introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Defining constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 What does a constitution do? . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Sources of the UK constitution . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Constitutional conventions . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 The question of codification . . . . . . . . . . . . . . . . . . . . . . . 15
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . . 16

Introduction
The constitution of the United Kingdom (often also referred to as ‘the British
constitution’) is unusual in that it is uncodified. Unlike the vast majority of democratic
nation states (Israel and New Zealand being other exceptions), the United Kingdom
has no single document that comprises its constitution. There is no book or document
entitled ‘The British constitution’. Instead, the constitution is located in a variety of
sources, both legal and non-legal, written and unwritten.
Activity 2.1
Find a clear and concise definition of ‘codified’ and/or ‘uncodified’ for your glossary.
This chapter will introduce some of the ways in which constitutions (generally) might
be described or classified, before moving on to identify the sources of the United
Kingdom’s constitution. The fundamental principles which underpin the constitution
will also be introduced and then built upon in the following chapters.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 1 ‘Introduction to constitutional
fundamentals’ and Chapter 2 ‘The constitutional rulebook’.
Further reading
¢ Bogdanor, V. et al. ‘Should Britain have a written constitution?’ (2007) 78 Political
Quarterly 499–517.
¢ Constitution UK ‘The People’s constitution’: https://lsedesignunit.com/

theconstitution/html5/index.html?page=1
¢ Douglas-Scott, S. and A. Tomkins ‘Does Britain need a proper constitution?’

Prospect Magazine (2 April 2019): www.prospectmagazine.co.uk/magazine/
does-britain-need-constitution-debate-sionaidh-douglas-scott-adam-tomkins
¢ Finer, S.E., V. Bogdanor and B. Rudden Comparing constitutions (Oxford: Oxford

Uninversity Press, 1995) [ISBN 9780198763444].
¢ Gordon, R. Repairing British politics: a blueprint for constitutional change. (Oxford:

Hart Publishing, 2010) [ISBN 9781849460491].
¢ King, The British constitution, Chapter 1 ‘What is a constitution?’.
¢ King, J. ‘The democratic case for a written constitution’ in Jowell, J. and

C. O’Cinneide The changing constitution. (Oxford: Oxford University Press) 9th
edition [ISBN 9780198806363].
¢ Political and Constitutional Reform Committee ‘The UK constitution: a summary,

with options for reform’ (March 2015): www.parliament.uk/documents/commons-
committees/political-and-constitutional-reform/The-UK-Constitution.pdf
¢ The Constitution Unit, UCL ‘What is the UK constitution?’: www.ucl.ac.uk/

constitution-unit/what-uk-constitution (A very simple introductory piece of
writing.)
¢ The Constitution Unit, UCL ‘To codify or not to codify? Lessons from consolidating
the United Kingdom’s Constitutional Statutes’: www.ucl.ac.uk/constitution-unit/
sites/constitution-unit/files/162.pdf
¢ Tomkins, Public law, Chapter 1 ‘On constitutions’.

Public law 2 The UK constitution: introduction page 11
2.1 Defining constitutions
2.1.1 What is a constitution?

Membership organisations, community groups and charities will all have constitutions
which form the basis of the organisation or group’s governance. In that context, it
might be thought of as a governing document for that particular body. At the most
basic level, when we speak about the constitution of a state, the constitution itself will
still perform the same function – to set out the rules governing the state – which you
will see from the definitions and descriptions below.
In 2001, the House of Lords Select Committee on the Constitution defined the
constitution as:
the set of laws, rules and practices that create the basic institutions of the state, and
its component and related parts, and stipulate the powers of those institutions and
the relationship between different institutions and between those institutions and the
individual.
Activity 2.2
Below are four different definitions of a constitution. Take some time to think about
these, decipher their meaning and consider which you think is the most useful
to aid understanding. Attempt also to form a view as to which definition most
accurately describes the uncodified constitution of the United Kingdom.
u ‘By constitution we mean, whenever we speak with propriety and exactness,
that assemblage of laws, institutions and customs, derived from certain
fixed principles of reason, directed at certain fixed objects of public good,
that compose the general system, according to which the community
hath agreed to be governed.’ (Bolingbroke, H. A dissertation upon parties
(1733–34), David Armitage (ed.) (Cambridge: Cambridge University Press, 1997)
[ISBN 9780521586979].)
u ‘A constitution is a thing antecedent to a government, and a government is only
the creature of a constitution…A constitution is not the act of a government, but
of a people constituting a government, and government without a constitution,
is power without a right.’ (Paine, Thomas Rights of man. (Cambridge: Cambridge
University Press, 2012; first published 1791) [ISBN 9781108045452].)
u ‘…the whole system of government of a country, the collection of rules which
establish and regulate or govern the government.’ (Wheare, K.C. Modern
constitutions. (Oxford: Oxford University Press, 1966).)
u ‘A document having special legal sanctity which sets out the framework and
the principal functions of the organs of government within the state and
declares the principles by which those organs must operate.’ (Bradley, A. and
K. Ewing Constitutional and administrative law. (Harlow: Pearson, 2007)
[ISBN 9781405812078].)
If we think further about the notion of a document with special legal sanctity or
status, we begin to understand more clearly what the differences are between a
codified and an uncodified constitution. A codified constitution is a specific document
entitled, for example, ‘The Constitution of Ireland’, ‘The Belgian Constitution’ or ‘The
Federal Constitution of Malaysia’. In states with a codified constitution, there will be a
‘Constitutional’ or ‘Supreme’ Court whose function is to interpret the constitution and
determine the lawfulness of other legislation or governmental actions by reference to
the constitution. The United Kingdom Supreme Court (which will be discussed in later
chapters) does not perform such a function. The constitution itself will form what is
often referred to as a ‘higher order law’; it will be the highest law in that state.
Thus, where a codified constitution exists it will be the role of the judges to interpret
it. Within the UK constitution, this would raise additional complications, particularly in
relation to the fundamental doctrine of parliamentary sovereignty (discussed in later
chapters).
Activity 2.3
Read the following articles and think about what would be the role of the judges in
a UK codified constitution.
u Le Sueur, A. ‘Imagining judges in a written UK Constitution’, UK Constitutional
Law blog (14 May 2014): https://ukconstitutionallaw.org/2014/05/14/
andrew-le-sueur-imagining-judges-in-a-written-uk-constitution/
u House of Commons Political and Constitutional Reform Committee ‘The
constitutional role of the judiciary if there were a codified constitution’ (HC
802, 2013–14): https://publications.parliament.uk/pa/cm201314/cmselect/
cmpolcon/802/80202.htm
Another important distinction in the debate about codification is whether a
constitution is rigid or flexible. This refers essentially to the ease (or difficulty) with
which amendments might be made to it. The absence of codification in the British
constitution means that there are no special procedures to be followed in relation to
making constitutional changes. A simple majority (51 per cent) in Parliament can pass
legislation which effects constitutionally significant change. This is a notable difference
from states with a codified constitution, where the constitution will be entrenched and
change or amendment will require a special procedure to be followed, such as a
referendum or a super-majority in the parliament or legislative body.
A referendum is ‘a national or regional vote on a single question’ (Le Sueur, Sunkin and
Murkens). A longer definition can be found via the Parliament website: ‘A referendum is
when a question is decided by putting it to a public vote. Referendums are an example
of direct democracy. In the UK, most decisions are made by Parliament on behalf of the
public which is known as indirect or representative democracy.’
(www.parliament.uk/site-information/glossary/referendum/)
In addition to the codified/written and uncodified/unwritten divide discussed above,

there are other ways in which constitutions are described and classified. They might
be unitary or federal, republican or monarchical, presidential or parliamentary.
Activity 2.4
Find a good definition of ‘entrenchment’ in the context of legislation and/or
constitutions for your glossary.
2.2 What does a constitution do?

When reading about and studying this topic it is a good idea to think not only about
the purpose or function of a constitution, but also about why certain constitutions
fulfil certain purposes or functions in the sense that they often reflect (or, at least, are
intended to reflect) the values and ideals of a particular state at a particular time. The
history of a country generally influences when, why and how a constitution comes into
being.
The constitution of a state is usually drafted as a result of a fundamental political

event, a so-called ‘constitutional moment’: for example, a revolution (France 1789), the
creation of a new state or country (the USA 1787), the conferral of independence (India
1949) or following war or a change in political structure (Germany 1948).
Accordingly, no two states will have identical constitutions. According to

Finer, Bogdanor and Rudden, p.7, ‘all constitutions contain elements that are
autobiographical and correspondingly idiosyncratic…Different historical contexts
have generated different preoccupations: different preoccupations have generated
different emphases’.
This also goes some way towards explaining why it is that the UK has not yet codified
its constitution. When contrasted with many countries, the UK has had a relatively
stable history in which a pragmatic and evolutionary approach has generally
dominated.
One important thing to remember, however, is that whatever ‘form’ a constitution

takes or how it might be classified, it will generally exist to perform more or less the
same purpose. The notion of constitutionalism means that ‘[a]ll institutions of the
country – the executive, legislature, and judiciary – are confined by the terms of the
constitution’ (Le Sueur, Sunkin and Murkens). Constitutions in all states provide the
basis for the exercise of political authority. So, whether one adopts a narrow or wide
definition of ‘constitution’, it is essentially a framework of rules that governs the
relationships between the institutions of government within the state, and between
the state (and those who govern) and its citizens or subjects. (A narrow view would
be that of a single document that has special legal status and embodies the principal
rules concerning the government of the country, whereas a wide view would be that
of a collection of rules which govern the institutions of the state. See also earlier
definitions – Bradley and Ewing’s definition could be described as a narrow definition
and Wheare’s as a wide definition.) It will act as a constitutional limit and control on
governmental powers and help to ensure the legitimacy of governmental institutions.
As discussed above, a constitution might also fulfil the purpose of affirming or
establishing certain values and ideals. Constitutions also generally set out the sanctity
of certain constitutional principles, for example, the rule of law, separation of powers,
the sovereignty of the people or the parliament and democracy.
Activity 2.5
Look up and (briefly) read the constitutional texts of Cuba, Ireland and Germany via
the Constitute project website: www.constituteproject.org
Think about what makes each unique. Are there common aspects? What values are
set out in each? How detailed are they? Are human rights/civil liberties included?
2.3 Sources of the UK constitution

If a constitution means a written document, then obviously Great Britain has no
constitution. In countries where such a document exists, the word has that meaning.
But the document itself merely sets out rules determining the creation and operation
of governmental institutions, and obviously Great Britain has such institutions and such
rules. The phrase ‘British constitution’ is used to describe those rules.
(Jennings, I. The law and the constitution. (London: University of London Press, 1959),
pp.81 and 82)
It is more accurate to refer to the constitution of the UK as ‘uncodified’ rather than

‘unwritten’ as there are many important written sources of the UK constitution (that
is, although it is ‘uncodified’, much of it is to be found in written sources). It is worth,
therefore, drawing a distinction between ‘written’ and ‘codified’; the latter tends to
refer to the bringing together of all the ‘rules’ into a single document.
We will turn now to look at where we might find and discover the British constitution.
We can divide the sources of the constitution into legal (which are enforceable in the
courts) and non-legal sources.
In the UK, ‘constitutional’ law is not distinct from ‘other’ law in the way that it is in
many countries. In the words of Turpin and Tomkins, ‘we find constitutional rules
mingled with the rest of the law, in statutes and subordinate legislation, in the
common law and decisions of judges’ (Turpin, C. and A. Tomkins British government
and the constitution. (Cambridge: Cambridge University Press, 2011) 7th edition [ISBN
9780521185110]). This becomes more evident when we look at some legal sources.
These sources will be discussed in more detail over the next chapters in this module
guide but, for now, we will turn to one in particular: constitutional conventions.
Activity 2.6
Rank the sources of the UK constitution in the table below in order of importance,
with justifications and explanations for why you have done this.
Legal sources Non-legal sources

Acts of parliament/statutes Constitutional conventions
Judicial decisions/common law/case Law and custom of Parliament
law (standing orders, resolutions, rulings
by Speaker, etc.)
Crown/royal prerogative Constitutional writers and theorists
(such as Dicey and Jennings)
European Union/European Constitutional principles
Community law
International law
2.4 Constitutional conventions

Constitutional conventions are an important source of the constitution and, although
such conventions will exist in all states to a greater or lesser degree, they are arguably
of greater significance in the context of the uncodified British constitution. They are
described succinctly in the first edition of the government’s The Cabinet manual as
‘rules of constitutional practice that are regarded as binding in operation but not in
law’. For Jennings, the constitutional conventions ‘provide the flesh which clothes the
dry bones of the law; they make the legal constitution work; they keep it in touch with
the growth of ideas’.
There are several points to note when learning about conventions:
1. They are not laws or legal rules and so cannot be enforced in the courts.
The consequences of breaching a convention are various and not easy to predict.
However, any sanctions which follow or result from a breach will be political rather
than legal.
In Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 the UK Supreme
Court clarified that judges ‘are neither the parents nor the guardians of political
conventions; they are merely observers’: while they can ‘recognise the operation of a
political convention in the context of deciding a legal question’, they cannot ‘give legal
rulings on its operation or scope, because those matters are determined within the
political world’.
2. Those bound by them (the constitutional actors) feel a sense of obligation to

follow the convention – indeed, it is the obligatory nature of the convention that
sets it apart from a mere habit or custom.
Traditionally, conventions were a largely unwritten part of the constitution, but today
the majority are recorded in written form, such as the conventions of ministerial
responsibility in the Ministerial Code and many others in The Cabinet manual.
2.4.1 Identifying constitutional conventions

One of the areas in which conventions are particularly well established is where
they govern the exercise of prerogative powers. However, even in these instances
conventions may be of variable clarity, for example, it is firmly established that the
monarch should give their assent to bills passed by both Houses of Parliament but
there is less clarity on whether the assent of Parliament is necessary in order to
exercise the prerogative power to engage the armed forces.
Jennings’ tripartite test is often cited as a guide for identifying a convention. His
three questions were: ‘first, what are the precedents; secondly, did the actors in the
precedents believe that they were bound by a rule; and thirdly, is there a reason for
the rule?’.
It also ought to be borne in mind that ‘conventions are always emerging, crystallising
and dissolving, and it is sometimes questionable whether a convention has been
broken or has simply changed’ (Turpin and Tomkins).
2.4.2 The courts and constitutional conventions
Further reading
You might like to explore some case law in this area. The following judgments will
introduce to you the courts’ approach to constitutional conventions:
¢ Attorney General v Jonathan Cape Ltd [1976] QB 752.
¢ Re Amendment of the Constitution of Canada (1981) 125 (3d) 1 (Supreme Court of

Canada).
¢ Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
¢ Madzimbamuto v Lardner-Burke [1969] 1 AC 645.
¢ Miller v Secretary of State for Exiting the European Union [2017] UKSC 5.
2.5 The question of codification

For many years, there has been a lively debate around the issue of codifying the British
constitution, which you will have learnt more about this through reading some of the
resources recommended at the beginning of the chapter. This final section is intended
to prompt you to think about this question more analytically by posing some of the
questions you might need to consider.
A classic starting point is to consider the supposed advantages and disadvantages of

an uncodified versus a codified constitution. The most obvious is the idea of flexibility,
the relative ease of amendment. The counter argument to this, of course, is that if
something can be very easily amended, then perhaps the protection afforded by
it is not as strong as it should be (or could be if this constitutional protection were
entrenched). Other arguments include the accessibility of a constitution and the
awareness of such matters within society.
When thinking about the debate around codification of the British constitution,
several practical issues (in addition to the more ideological views) are also of
relevance. Who should (or could) draft a constitution? What would it include? Would
it be a statement of the constitution as it is currently or an attempt to reform?
The question of the enhanced role played by the judiciary under a codified
constitution is of particular importance. (Remember, it would ultimately be the court
that would interpret and thus define the constitutional text.) Where one’s view falls on
this will largely depend upon whether you are a legal or political constitutionalist.
Legal or political constitutionalist

The essential difference between these two schools of thought is in relation to
which institution (Parliament or the judiciary) should possess greater power within
the constitution and provide the requisite legitimacy to the constitution.
For political constitutionalists, the legislative supremacy of Parliament (and
the role of elected politicians) is of fundamental importance – which would be
difficult, if not impossible, to reconcile with a codified constitution – whereas legal
constitutionalists would wish to see the judiciary playing a more dominant role.
Finally, it also worth remembering that even where a codified constitutional text does
exist there will also be additional rules, principles, conventions and political practices
which are not included in that text.
Chapter review and self-assessment

Before moving on to the next chapter it is important to ensure that you have begun
to develop a solid understanding of the ideas, principles and institutions to which you
have been introduced in this first chapter.
Please consult the checklist below to determine if you are ready to progress. Have you:
u compiled a glossary of new terms and phrases?
u completed the activities included throughout the chapter?
u looked at the extra resources on the VLE?
u completed the Further reading?
u successfully completed the formative assessment on the VLE?
Examination hints and tips

Questions around constitutional codification are core to the study of public law. The
emphasis and focus might differ from year to year but the idea of whether or not one
ought to codify the famously uncodified British constitution is a constant theme for
students of pubic law in the UK.
While the examiners will not want to see large sections of pre-prepared or memorised
material it is good practice, at an early stage in your studies, to become accustomed
to citing specific examples and quotations by way of authority and evidence. A
straightforward manner to do this in relation to this topic might be to, for example,
include a definition of ‘constitution’ from a suitably academic source and provide a
brief explanation of certain constitutional conventions by way of example.
3 Multi-layered government: devolution in the UK
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 A brief history of the UK . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.2 Defining devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.3 Background developments . . . . . . . . . . . . . . . . . . . . . . . . 19
3.4 Devolution in Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.5 Scottish independence . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.6 Devolution in Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Devolution in Northern Ireland . . . . . . . . . . . . . . . . . . . . . . 23
3.8 English Votes for English Laws (EVEL) . . . . . . . . . . . . . . . . . . . 24
3.9 Intergovernmental relations . . . . . . . . . . . . . . . . . . . . . . . 24
3.10 Brexit and devolution . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.11 COVID-19 and the four nations of the United Kingdom . . . . . . . . . . 25

Introduction
In this chapter we will look at the structure of the United Kingdom – four nations in
one – and in particular the development of devolution. The process of devolving power
downwards from the (sovereign) Westminster Parliament to regional governments in
Scotland, Wales and Northern Ireland, in its current iteration, commenced in 1998 with
the enactment of some important legislation and the holding of referenda.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 6 ‘Multilevel governing within the United
Kingdom’.
Further reading
¢ Lady Hale ‘Devolution and the Supreme Court – 20 years on’ (14 June 2018):
www.supremecourt.uk/docs/speech-180614.pdf
¢ House of Commons Insight ‘20 years of devolved statutes in

Scotland and Northern Ireland’ (19 November 2018): https://
commonslibrary.parliament.uk/parliament-and-elections/
devolution/20-years-of-devolved-statutes-in-scotland-and-northern-ireland/
¢ House of Commons Library Briefing Paper ‘Introduction to devolution in

the UK’ (No. CBP 8599, 19 June 2019): https://commonslibrary.parliament.uk/
research-briefings/cbp-8599/
¢ Institute for Government ‘A second independence referendum’ (13

December 2019): www.instituteforgovernment.org.uk/publications/
second-independence-referendum-scotland
¢ McEldowney, J. ‘Federalism’ in Jowell, J. and C. O’Cinneide The changing

constitution. (Oxford: Oxford University Press) 9th edition [ISBN 9780198806363].
¢ Project EVEL – Analysing English Votes for English Laws:

http://evel.uk/how-does-evel-work/
¢ Russell, M. and J. Sheldon ‘Options for an English Parliament’: www.ucl.ac.uk/

constitution-unit/research/parliament/options-english-parliament
¢ Helpful summaries of the various devolution settlement can be found at: www.
gov.uk/guidance/devolution-of-powers-to-scotland-wales-and-northern-ireland
Public law 3 Multi-layered government: devolution in the uk page 19
3.1 A brief history of the UK

In the 1530s there was a Union between England and Wales. The Laws in Wales Act
was passed in 1536 by the English Parliament which provided for, among other things,
the representation of the Welsh constituencies in the House of Commons. Then in
1707 the Anglo-Scottish Union formed Great Britain. The Acts of Union (as they are
collectively known) were passed by the English and Scottish Parliaments in 1706 and
1707 and united the two independent Parliaments as one Parliament of Great Britain.
Unlike the Union with Wales, Scotland retained its own legal system. The next stage
was the British–Irish Union of 1801 which formed the United Kingdom of Great Britain
and Ireland. Following the division of Ireland into Northern Ireland and Eire (the Irish
Free State) in the 1920s, the current unitary state was created – the United Kingdom of
Great Britain and Northern Ireland.
3.2 Defining devolution

The term ‘devolution’ is derived from the Latin ‘to roll down’. It refers to the process
in the United Kingdom of transferring power from the centre (Westminster) to the
separate nations and regions. It involves a downward transfer of power from the
supreme Westminster Parliament to a subordinate legislature.
In McEldowney’s words:
Devolution provides various powers to the nations, as a form of self-government,

but this does not create any entrenched autonomous powers because devolution
maintains the sovereignty of the UK Parliament. It is important to be clear in
distinguishing devolution, where powers are transferred but the UK Parliament does
not relinquish any of its sovereignty, from a formal federal system.
In the UK, the devolved governments have been created via statute and because of the
doctrine of parliamentary sovereignty, devolution is, at least in theory, reversible.
By contrast, under a federal system of government the constituent parts of the state
enjoy autonomy and sovereignty.
Activity 3.1
Find clear and concise definitions of devolution and federalism for your glossary.
3.2.1 Administrative, executive and legislative devolution

The different ‘forms’ devolution may take are described in a House of Commons
Library Briefing Paper (‘Introduction to devolution in the UK’) as follows:
Administrative – the practice of transferring central government responsibilities to

territorial departments of the same government.
Executive – where the prerogative powers of the UK Government are transferred to

ministers of devolved governments or, in England, elected ‘metro’ mayors.
Legislative – where law-making powers are transferred from Westminster to other

legislatures within the UK.
3.3 Background developments

The Royal Commission on the Constitution, commonly known as ‘the Kilbrandon
Commission’ (after its chair), which reported in 1973, rejected federalism for the
UK as ‘not an appropriate place for federalism and now is not an appropriate time’.
Sovereignty was viewed as being indivisible. The Kilbrandon Commission did,
however, recommend some devolution of power to Scotland and Wales.
There were attempts at devolving powers to Wales and Scotland in the late 1970s
and oddly these took the form of legislation first, referendum later. Referendums
were held in 1979 but did not achieve the necessary threshold of public support and
thus the (pre-emptive) legislation – the Wales Act 1978 and Scotland Act 1978 – was
subsequently repealed without having taken effect.
3.3.1 Asymmetry of devolution

It is usual to refer to the asymmetry of devolution in the UK, but what does this mean?
Simply put, asymmetrical devolution refers to the position under which different parts
of the UK have different forms of devolution and varying levels of power.
3.4 Devolution in Scotland

On 11 September 1997 a referendum was held for the Scottish people which asked
(1) whether they wanted a Scottish Parliament, and (2) whether that Parliament should
have (limited) tax varying powers. The creation of the Parliament was voted for by
74 per cent and the tax-raising powers by 63 per cent. Turnout was 60 per cent.
These measures were implemented via the Scotland Act 1998, which made provision
for a Scottish Government of Ministers and a Scottish Parliament to which they would
be accountable. The Scottish Parliament was officially convened on 1 July 1999 and
powers which were previously exercised by the Secretary State for Scotland (and other
UK ministers) were transferred to Scottish ministers.
The Scottish Parliament has the power to pass primary legislation and s.29 of the
Scotland Act 1998 provides that the Scottish Parliament’s legislative competence
extends to all areas of law (with a few limited exceptions) which are not ‘reserved
matters’. Schedule 5 sets out the reserved matters.
The Scotland Act 2012 made further changes to the devolution settlement in Scotland
in response to the recommendations of the Calman Commission, including giving the
Scottish Parliament the power to set a separate Scottish income tax rate.
The Scotland Act 2016 made additional amendments to the 1998 Act and devolved
further power, giving effect to the recommendations of the Smith Commission. The
cross-party Smith Commission was established after the ‘No’ vote in the Scottish
independence referendum of September 2014.
In summary, the Scotland Act 2016:
• declares that the Scottish Parliament and the Scottish Government are considered
permanent parts of the UK’s constitutional arrangements and will not be abolished
without a decision of the people of Scotland. It also recognises that the UK
Parliament will not normally legislate in relation to devolved matters without the
consent of the Scottish Parliament, while retaining the sovereignty to do so
• gives increased autonomy to the Scottish Parliament and the Scottish Ministers in
relation to the operation of Scottish Parliament and local government elections in
Scotland
• gives increased autonomy to the Scottish Parliament in relation to the power

to amend sections of the Scotland Act 1998 which relate to the operation of the
Scottish Parliament and the Scottish Government within the United Kingdom
• increases the financial accountability of the Scottish Parliament through

devolution of the rates and bands of income tax, air passenger duty and aggregates
levy, and assignment of VAT revenues
• increases responsibility for welfare policy and delivery in Scotland through the
devolution of welfare powers to the Scottish Parliament and/or the Scottish
Ministers
• gives significant responsibility to Scotland for areas such as road signs, speed limits,
onshore oil and gas extraction, consumer advocacy and advice, among others, by
devolution of powers in relation to these fields to the Scottish Parliament and the
Scottish Ministers and
• increases scrutiny for the Scottish Parliament of specific bodies and increases the
ability of the Scottish Government to design schemes relating to energy efficiency
and fuel poverty by the devolution of functions to the Scottish Ministers.
(Extracted from the Act’s accompanying explanatory notes)
3.4.1 The Sewel convention

This constitutional convention dates from 1998 when Lord Sewell (the Scotland
Bill’s sponsoring minister in the House of Lords) gave a commitment that when the
Westminster or UK Parliament legislated in a devolved area (for a matter which had
been devolved) it would ‘not normally’ legislate without the consent of the Scottish
Parliament. This consent would be given through a legislative consent motion.
The Sewel convention has now been given statutory recognition by inserting into
s.28 of the Scotland Act (by s.2 of the 2016 Act), immediately after the subsection
preserving the power of the UK Parliament to make laws for Scotland, the following
subsection: ‘(8) But it is recognised that the Parliament of the United Kingdom will not
normally legislate with regard to devolved matters without the consent of the Scottish
Parliament.’
In Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 (paras 136–37)
the Supreme Court explained that, although the Sewel convention cannot be enforced
by the courts, it nonetheless plays an important role in facilitating harmonious
relationships between the UK Parliament and the devolved legislatures.
3.4.2 The Scottish Continuity Bill

In May 2018 the Scottish Parliament refused consent for the European Union
(Withdrawal) Bill. The Bill was subsequently granted Royal Assent in spite of this,
and became the European Union (Withdrawal) Act 2018. This prompted the Scottish
Government to draft and introduce to the Scottish Parliament the UK Withdrawal from
the European Union (Legal Continuity) (Scotland) Bill. This (Scottish) Bill prompted a
reference to be made, by the Attorney General and the Advocate General for Scotland,
under s.33(1) Scotland Act 1998, for the Supreme Court to determine whether the
(Scottish) Continuity Bill was within the legislative competence of the Scottish
Parliament.
The subsequent Supreme Court decision is commonly referred to as the ‘Continuity

Bill’ case (formally THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY)
(SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for
Scotland (Scotland) [2018] UKSC 64). The following extract from the judgment explains
this aspect of the Scotland Act [emphasis added]:
Since the Scottish Parliament commenced its work on 2 July 1999, the courts have
had occasion to interpret the law by which it is governed. The main principles may
be summarised as follows. The powers of the Scottish Parliament, like those of
Parliaments in many other constitutional democracies, are delimited by law. The
Scottish Parliament is a democratically elected legislature with a mandate to make
laws for people in Scotland. It has plenary powers within the limits of its legislative
competence. But it does not enjoy the sovereignty of the Crown in Parliament; rules
delimiting its legislative competence are found in section 29 of and Schedules 4 and
5 to the Scotland Act, to which the courts must give effect. And the UK Parliament
also has power to make laws for Scotland, a power which the legislation of the
Scottish Parliament cannot affect: section 28(7) of the Scotland Act. The Scotland
Act must be interpreted in the same way as any other statute. The courts have
regard to its aim to achieve a constitutional settlement and therefore recognise the
importance of giving a consistent and predictable interpretation of the Scotland Act
so that the Scottish Parliament has a coherent, stable and workable system within
which to exercise its legislative power. This is achieved by interpreting the rules as to
competence in the Scotland Act according to the ordinary meaning of the words used.
(para.12)
Although the Supreme Court rejected the Government’s claim that the whole of the
Scottish Bill was invalid because it was outside the Scottish Parliament’s legislative
competence, the Court concluded that a number of provisions were outside the
competence of the Scottish Parliament and were thus ‘not law’ (as per s.29(1) Scotland
Act 1998). Thus, the Continuity Bill could not proceed.
For further discussion on the Continuity Bill and the Supreme Court’s decision, see:
www.supremecourt.uk/cases/uksc-2018-0080.html (the Continuity Bill case); the Bill
on the Scottish Parliament’s website: www.parliament.scot/parliamentarybusiness/
Bills/107725.aspx; and the following academic commentaries: https://
publiclawforeveryone.com/2018/12/14/the-supreme-courts-judgment-in-the-scottish-
continuity-bill-case/ and https://constitution-unit.com/2018/08/07/is-the-uk-scotland-
supreme-court-case-the-start-of-a-new-phase-of-constitutional-conflict/
3.5 Scottish independence

For an illustration of the path to the first Scottish independence
referendum, see www.instituteforgovernment.org.uk/publications/
second-independence-referendum-scotland
3.5.1 Referendum on independence

In September 2014 the Scottish people voted ‘no’ in a referendum on independence
for Scotland. On the proposition ‘Should Scotland be an independent country?’
55.3 per cent of electors voted ‘No’ and 44.7 per cent voted ‘Yes’. There was a majority
for ‘No’ in 28 of Scotland’s 32 local authority areas, including the capital, Edinburgh.
There was a majority for ‘Yes’ in Scotland’s largest city, Glasgow. For the first time, 16-
and 17-year-olds were eligible to vote.
Activity 3.2
Read ‘Scottish independence referendum – what’s next?’ at: www.gov.uk/
government/news/scottish-independence-referendum-whats-next and answer the
following questions.
a. What was the turnout in the referendum?
b. Which further powers were to be devolved to Scotland (following the outcome

of the referendum)?
c. Think about the result of the referendum – do you agree that further powers
should be devolved to the Scottish Parliament?
3.5.2 Recent developments

In the wake of the Brexit referendum in 2016, after a (slim) majority of the
UK as a whole voted to leave the European Union (EU) while a majority in
Scotland voted to remain, the Scottish Government held a consultation on a
draft independence referendum Bill. For a summary see: www.bbc.co.uk/news/
uk-scotland-scotland-politics-37708545
Activity 3.3
Read the Institute for Government Article, ‘A second referendum on Scottish
independence’: www.instituteforgovernment.org.uk/explainers/second-
referendum-scottish-independence and think about the following question:
Why do you think this issue is unlikely to be resolved any time soon?
3.6 Devolution in Wales

On 18 September 1997 a referendum was held in Wales which asked the question ‘Do
you agree that there should be a Welsh Assembly as proposed by the government?’ A
slim majority (50.3 to 49.7 per cent) voted in favour with a turnout of 50.22 per cent.
This more limited form of self-government was legislated for in the Government of
Wales Act 1998 and then in 1999 the National Assembly for Wales was established.
In many ways the much less definitive support for devolution and the more limited
nature of the devolution settlement reflects the nature of the more closely entwined
relationship between England and Wales – politically, legally and economically – over
centuries.
The original devolution settlement in 1998 did not give the National Assembly for
Wales any primary law-making powers. The Government of Wales Act 2006 fulfilled a
government commitment to increasing the devolved powers leading to the creation
of a separate legislature (the National Assembly for Wales) and executive (the Welsh
Assembly Government) with ministers who are members of, and accountable to, the
Assembly following the May 2007 elections.
Schedule 7A to the Government of Wales Act 2006 defines the scope of the Assembly’s
legislative competence to make Assembly Acts. It sets out the areas of policy on which
only Parliament can legislate. Any area not listed in Schedule 7A is devolved to the
National Assembly for Wales.
The Wales Act 2014 implemented recommendations made in the first report of the
Commission on Devolution in Wales (the ‘Silk Commission’) to devolve fiscal powers
to the National Assembly for Wales for the first time. The 2014 Act also amended the
statutory name of the executive to the Welsh Government.
The Wales Act 2017 made further changes to the devolution settlement for Wales,
implementing the Government’s commitments in the Command Paper, ‘Powers for a
Purpose: Towards a Lasting Devolution Settlement for Wales’ (known as the ‘St David’s
Day Agreement’), which required legislative changes. This included putting in place a
reserved powers model of devolution for Wales, and devolving further powers to the
Assembly and Welsh ministers in areas such as elections, transport, energy and the
natural environment.
3.7 Devolution in Northern Ireland

The Northern Ireland Act 1998 provides for devolution to the Northern Ireland
Assembly which sits at the Parliament Buildings in Belfast, known as Stormont. The
devolution settlement for Northern Ireland describes the areas over which the
Assembly has legislative control as ‘transferred matters’ (these are mainly in the
economic and social field) and the central UK Government retains responsibility for
the ‘excepted matters’ of national importance.
3.7.1 The ‘Good Friday’ or Belfast Agreement

The Agreement which was reached on Good Friday in 1998 after two years of multi-
party negotiations underpins the policy adopted in Northern Ireland. It was the
endorsement of the ‘Good Friday’ Agreement by 71.1 per cent of electors (with a
turnout of 81 per cent) in a referendum in Northern Ireland on 22 May 1998 that led to
the Northern Ireland Act 1998 and the establishment of the Northern Ireland Assembly.
Section 4 of the Northern Ireland Act 1998 sets out three categories of legislative
competences:
1. excepted matters – these were matters never intended to be devolved, including

defence and nationality (Schedule 2)
2. reserved matters – these were matters which may be devolved in the future,
including civil aviation (Schedule 3)
3. transferred matters – these were matters that have been transferred to the
Assembly, including police and judicial matters.
Reflecting the unique and troubled history of Northern Ireland, a requirement for
cross-community collaboration is built into the operation of the Northern Ireland
Executive where the First Minister (a Unionist representing the largest party) and the
Deputy First Minister (a Republican representing the second largest party) are required
to cooperate in a number of important ways.
After the collapse of the power-sharing executive in Northern Ireland in 2017 the
Assembly was suspended, until very recently. During suspension responsibility for
the direction and control of government in Northern Ireland lay with the Secretary
of State for Northern Ireland and the Northern Ireland Office. After various extensive
negotiations and the publication of a new Agreement – New Decade, New Approach
– in January 2020, devolved government has been restored in Northern Ireland and a
new five-party Executive has been formed.
For further detail see: www.instituteforgovernment.org.uk/explainers/

northern-ireland-restoration-power-sharing-executive
3.8 English Votes for English Laws (EVEL)

As devolution increased and developed, England, by far the most populous nation
in the United Kingdom, remained something of an anomaly in having no specifically
‘English’ governance. In addition, English MPs could not vote on devolved laws that
apply to the devolved administrations but MPs from the devolved nations were able to
vote on English matters.
This is often referred to as the West Lothian question, so named after the former MP
for West Lothian Tam Dalyell who raised the question in Parliament.
In 2015 this was resolved, not, as might have been expected, via statute, but through a
change to the Standing Orders in the House of Commons. This change gives effect to
recommendations of the McKay Commission (which had reported in 2013) and means
that MPs from England (or sometimes from England and Wales) can give their consent
to legislation that affects only England, or England and Wales, and which is within
devolved legislative competence.
For further detail please see: House of Commons Library Briefing Paper ‘English votes
for English laws’ (No. 7339, 20 June 2017): https://commonslibrary.parliament.uk/
research-briefings/cbp-7339/
3.9 Intergovernmental relations
3.9.1 Joint Ministerial Committee

The Joint Ministerial Committee (JMC) was formed in 1999 as devolution took place. It
is a formal method for discussions between the UK and devolved administrations in
Scotland, Wales and Northern Ireland on a range of issues.
The JMC’s terms of reference are set out in a (non-binding) Memorandum of

Understanding which was first published in October 1999. These are:
u to consider non-devolved matters which impinge on devolved responsibilities, and

devolved matters which impinge on non-devolved responsibilities
u where the UK Government and the devolved administrations so agree, to consider

devolved matters if it is beneficial to discuss their respective treatment in the
different parts of the UK
u to keep the arrangements for liaison between the UK Government and the
devolved administrations under review, and
u to consider disputes between the administrations.

In March 2018 during a plenary session of the JMC, the UK Prime Minister and First
Ministers of Scotland and Wales committed to ‘review and report to Ministers on the
existing intergovernmental structures, including the Memorandum of Understanding,
to ensure they are fit for purpose in light of the UK’s exit from the EU’.
3.9.2 Territorial secretaries of state

Post-devolution there are still UK government ministers for Scotland, Northern Ireland
and Wales. The House of Commons Library Briefing Paper ‘Introduction to devolution
in the UK’ explains that since 2007, however, their role has predominantly become
‘one of intergovernmental mediation and facilitation between UK government
departments and the devolved administrations’. In addition, ‘working closely with the
Cabinet Office, the territorial departments also assumed responsibility for legislative
proposals to further develop the devolution settlement, including the Scotland Acts
2012 and 2016 and the Wales Acts 2014 and 2017’.
Activity 3.4
Please read the explanation of devolution in the report available here: https://
commonslibrary.parliament.uk/research-briefings/cbp-8599/ and make a note of
how the role of the Secretary of State for Northern Ireland differs from the role in
other regions.
3.10 Brexit and devolution

One added difficulty for the already complex and contentious matter of Brexit related
to the different voting outcomes in the four nations of the United Kingdom. A majority
of the electorate in England and Wales voted to leave whereas a majority in Scotland
and Northern Ireland voted to remain.
For more detail see: www.bbc.co.uk/news/politics/eu_referendum/results
3.11 COVID-19 and the four nations of the United Kingdom

Most of the regulations and restrictions imposed as a result of the COVID-19 pandemic
relate to devolved matters and so each of the four nations within the United Kingdom
– England, Wales, Scotland and Northern Ireland – have introduced different measures.
There has been a greater or lesser degree of co-ordination between them but this is an
interesting and topical example of the complexity caused by devolution and the result
of there being, at times, quite marked differences in the rules around ‘lockdown’ and
other restrictions across the UK.
You might like to read this BBC news article on this topic: www.bbc.co.uk/news/
uk-wales-54719456 and this Constitution Unit blog post: https://constitution-unit.
com/2020/05/31/five-key-questions-about-coronavirus-and-devolution/

have been introduced in this chapter on devolution.


Questions around the structure of the United Kingdom often consider the differences
between a unitary state and federalism. You might be asked about the workings of
devolution in the UK and/or whether further reform might be desirable.
In order to answer any question on this topic you will need to have a solid
understanding of what is meant by the terminology – such as ‘devolution’ and
‘federalism’ – and an awareness of the asymmetrical nature of devolution in the
nations of the UK.
4 Constitutional principles
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.1 Parliamentary sovereignty . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 The rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Separation of powers in the UK constitution . . . . . . . . . . . . . . . 43

Introduction
The uncodified British constitution has at its core some extremely important
principles, most significantly parliamentary sovereignty, which might be more
accurately described as the ‘legislative supremacy of Parliament’, and the rule of
law. These principles were described by Albert Venn Dicey as the ‘twin pillars’ of the
constitution. We might seek to add a third, which could be described as a partial
separation of powers or, perhaps more precisely, as an independent judiciary).
It is important to have a very solid understanding of these principles and the various
roles which they play in the constitution as this will underpin many of the other topics
you learn about in the study of public law.
In this chapter we will consider the following principles in turn:
u parliamentary sovereignty
u the rule of law
u partial separation of powers.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 3 ‘The legislative supremacy of the UK
Parliament’, Chapter 4 ‘The rule of law’ and Chapter 5 ‘Separating and balancing
powers’.
Essential reading
¢ Constitutional Reform Act 2005.
Public law 4 Constitutional principles page 29
4.1 Parliamentary sovereignty

It is common ground that the most fundamental rule of UK constitutional law is that
the Crown in Parliament is sovereign and that legislation enacted by the Crown with the
consent of both Houses of Parliament is supreme (we will use the familiar shorthand and
refer simply to Parliament). Parliament can, by enactment of primary legislation, change
the law of the land in any way it chooses. There is no superior form of law than primary
legislation, save only where Parliament has itself made provision to allow that to happen.
(Extract from the High Court judgment in Miller v Secretary of State for Exiting the European
Union [2016] EWHC 2768 (Admin))
The principle of parliamentary sovereignty or parliamentary supremacy lies at the

heart of the British constitution. Under the British constitution which, as we know,
has no ‘higher order’ law in the form of a codified constitution against which the
validity of Parliament’s enactments may be measured, the highest source of authority
is the United Kingdom Parliament, and Acts of Parliament are the highest form of
law. Parliamentary supremacy was described by Dicey as ‘the very keystone’ of the
constitution Dicey, A.V. The law of the constitution (Oxford: Oxford University Press, 2013;
first published 1885) [ISBN 9780199579822]. In the terminology used by Kelsen it would
be the ‘grundnorm’ of the British constitution – the rule upon which all other rules are
based Kelsen, H. Pure theory of law. Translated by Max Knight (New Jersey: The Lawbook
Exchange, 2009; first published 1934) [ISBN 9781584775782].
Parliamentary supremacy is of particular importance for political constitutionalists as

it enables elected representative (MPs) rather than the judges to make key decisions
about the laws in a country.
Further reading
¢ Elliott, M. ‘Parliamentary sovereignty in a changing constitutional landscape’ in
Jowell, J. and C. O’Cinneide The changing constitution. (Oxford: Oxford University
Press) 9th edition [ISBN 9780198806363].
¢ Jowell, J. ‘Parliamentary sovereignty under the new constitutional hypothesis’

(2006) Public Law 562.
4.1.1 Defining parliamentary sovereignty

A statute, that is a piece of legislation produced by Parliament, is regarded as the highest
form of law within the British constitutional structure.
(Loveland)
Parliamentary sovereignty refers to the legislative supremacy of Acts of Parliament.

As ‘a matter of English law, there is no source of law higher than a statute’ (Tomkins).
The ‘Queen in Parliament’ is the sovereign body in the UK and can legally make any
law that it wants without concern that the courts will overturn it or declare it invalid
as incompatible with the constitution. It is this defining feature which lies in direct
contrast to many codified constitutions where the constitution itself is supreme and
the legislature is subordinate to that constitution.
4.1.2 Distinct from states with codified constitutions

Under any constitution – whether codified or uncodified – there must be a source
of ultimate authority: one supreme power over and above all other power in the
state. Under a codified constitution the highest source of power is the constitution
itself – as interpreted by the Supreme (or Constitutional) Court – and the legislature
is subordinate to that constitution. But under the uncodified British constitution the
highest source of authority is the Westminster Parliament and Acts of that Parliament
are the highest form of law.
This means the role of the courts is also different in terms of primary legislation.
The courts are limited to interpretation and do not have the ability to strike down
legislation or declare it invalid or ‘unconstitutional’.
4.1.3 Constitutional reform and amendment via Acts of Parliament

One further interesting consequence of parliamentary supremacy is that fundamental
constitutional change can be brought about by the Westminster Parliament through
passing (or indeed repealing) a simple piece of primary legislation without the need
to adopt any process of formal constitutional amendment. This means, in essence,
that because of parliamentary supremacy, legal entrenchment of constitutional law is
regarded as impossible in the UK.
4.1.4 Origins of parliamentary sovereignty

Parliamentary sovereignty was established as a result of political events in the 17th
century – the so-called ‘glorious revolution’ and the subsequent constitutional
settlement between the Crown and Parliament. In the Bill of Rights 1689 the
foundation was laid to ensure Parliament’s supremacy over the Crown and to restrict
the exercise of monarchical prerogative power. This is where its constitutional
significance lies. It established that the King was bound by Parliament.
From this time, Parliament came to mean the formal entity comprising the House of
Commons, the House of Lords and the Crown (that is, the ‘Queen-in-Parliament’).
For further detail on the events of this time, please see the section ‘The development
of parliamentary authority’ on the UK Parliament website: www.parliament.uk/about/
living-heritage/evolutionofparliament/parliamentaryauthority/
4.1.5 What is Parliament?

The composition of Parliament is covered in more detail in Chapter 7. But for now it is
important to understand that when we refer to the Westminster Parliament we mean
that body that formally comprises the House of Commons, the House of Lords and the
Crown (that is, the ‘Queen-in-Parliament’). We see this when we look at the words of
enactment or the enacting formula in statutes:
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows…
Activity 4.1
On the Parliament website (www.parliament.uk) look up ‘enacting formula’ and make
a note of how this differs for legislation passed under the Parliament Act procedure.
4.1.6 Judicial recognition of parliamentary sovereignty

There is no specific legislation that clearly establishes the doctrine of parliamentary
sovereignty and so it is not a rule that comes from statute. Nor is there any single case
that can be cited as the origin of the doctrine. In the seminal case of Jackson v Attorney
General [2005] UKHL 56 Lord Steyn described parliamentary sovereignty as judge-made
principle and ‘a construct of the common law’. The courts recognise and accept Acts of
Parliament as the highest law of the land and Parliament as the supreme law-maker.
Parliamentary sovereignty is a common-law rule of the constitution which is so

fundamental (as noted above, a ‘grundnorm’ in the terminology of Kelsen) that it can,
essentially, be taken for granted by the judges and by Parliament itself. Ultimately, the
continuance of the doctrine depends on the courts’ and judges’ respect for and loyalty
to it. Thus it rests upon the acceptance of the judges (and other key constitutional
actors) that parliamentary sovereignty is the ultimate rule.
According to Barnett:
The key to understanding parliamentary sovereignty lies in its acceptance – but not
necessarily moral approval – by the judges within the legal system. Sovereignty is
therefore a fundamental rule of the common law, for it is the judges who uphold
Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament,
sovereignty will remain the ultimate rule of the constitution.
Barnett, H. Constitutional and administrative law. (Abingdon: Routledge, 2011)

[ISBN 9780415611084].
In Jackson, Lord Steyn also considered what exceptional circumstances or events might
lead to the courts refusing to enforce legislation. It was suggested that if there was an
‘attempt to abolish judicial review or the ordinary role of the courts’ the courts 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’.
4.1.7 Traditional view of parliamentary sovereignty

According to Dicey, ‘Parliament thus defined has, under the English Constitution,
the right to make or unmake any law whatsoever; and, further, that no person or
body recognised by the law of England as having a right to override or set aside the
legislation of Parliament’. In this description we can identify both a positive and a
negative limb; the positive aspect is that any new statute, whatever its purpose or
consequence, would be obeyed by the courts and the negative aspect is the idea
that no person or body can make rules which override or derogate from an Act of
Parliament. This was recently stated by the UK Supreme Court in Miller v The Prime
Minister; Cherry v Advocate General for Scotland [2019] UKSC 4 (para.41): ‘[L]aws enacted
by the Crown in Parliament are the supreme form of law in our legal system, with
which everyone, including the Government, must comply.’
Dicey’s orthodox view of parliamentary sovereignty can be divided into three

elements, each of which is discussed further below.
First, the idea that Parliament is the supreme law-making authority with unlimited
legislative competence – ‘the right to make or unmake any law whatever’.
Second, that no other body (and this includes the courts) may question the validity
of Parliament’s enactments – ‘…no person or body is recognised…as having a right to
override or set aside the legislation of Parliament.’
Third, that no Parliament may bind a future Parliament or be bound by a previous

Parliament – ‘A sovereign power cannot, while retaining its sovereign character,
restrict its own powers by any particular enactment.’
1. The unlimited legislative competence of Parliament

This relates to Parliament’s supreme law-making power or the right ‘to make or
unmake any law whatever’ and is the most straightforward aspect of sovereignty to
understand. At the simplest level it means that there is no legal limit on the subject
matter on which Parliament may legislate. Thus, in strict legal theory no subject
matter is viewed as restricted. There is a presumption of statutory interpretation
that Parliament does not intend to legislate retrospectively or contrary to principles
of international law but these presumptions can be rebutted by clear wording in a
statute. For example, Parliament can indeed legislate with retrospective effect, as it
did in 1991 with the War Crimes Act; or in 1965 when, by passing the War Damages
Act, Parliament effectively nullified the decision of the House of Lords in Burmah Oil
Company v Lord Advocate [1965] AC 75.
An instance of a clear conflict between domestic legislation and international law

can be found in Cheney v Conn [1968] 1 All ER 779. In this case a taxpayer (Cheney)
challenged the Inland Revenue’s assessment of his income tax liability on the basis
that some of the money collected would be used for the manufacture of nuclear
weapons which, he argued, was contrary to the Geneva Convention – an international
treaty to which the UK was a party. Essentially, he argued that it breached international
law. The court, however, made clear that an Act of Parliament is the highest form of
law in the UK and prevails over international law. The judge, Ungoed-Thomas J, said:
What the statute itself enacts cannot be unlawful, because what the statute says and
provides is itself the law, and the highest form of law that is known to this country. It is
the law which prevails over every other form of law, and it is not for the court to say that
a parliamentary enactment, the highest law in this country, is illegal.
Parliament’s powers are also (at least, in legal terms) unlimited in terms of territorial
jurisdiction (or Acts of Parliament that extend beyond the territory of the United
Kingdom). Again, we can look at this through an example of case law. In Mortensen v
Peters (1906) 14 SLT 227, Mortenson (the captain of a Norwegian fishing trawler) was
charged with illegal fishing because of a Scottish by-law in a prohibited area (although
it was in international waters, i.e. outside the limit of Scottish waters recognised in
international law). His defence was that the Act was ‘unconstitutional’ because it
breached accepted international law standards and therefore had no legal effect. The
court dismissed this argument and thus demonstrated that the courts will recognise
and enforce Acts of Parliament that apply outside the territory of the UK.
This principle – that Parliament’s supremacy is unlimited geographically – can

be illustrated by Jennings’ now extremely well-known example, namely that
‘Parliamentary supremacy means…that Parliament can legislate for all persons and
all places. If it enacts that smoking in the streets of Paris is an offence, then it is an
offence.’ (The law and constitution (1959), pp. 170 and 171). This, of course, also reminds
us that the legal theory of parliamentary sovereignty does not always reflect political
reality.
It is also true that ‘Parliamentary sovereignty means that Parliament can, if it chooses,
legislate contrary to fundamental principles of human rights’ (as per Lord Hoffmann in
R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115).
While these are all examples of Parliament’s ability to make any law, it is equally
empowered to unmake any law through the repeal of any previous Act of Parliament
or by legislating to reverse or abolish any rule of common law or, indeed, any
constitutional convention.
2. No one can challenge the validity of an Act of Parliament
The ‘enrolled Bill rule’

This relates primarily to the relationship between the courts and Parliament. Historically,
it was apparently thought that the courts could set aside Parliament’s enactments. For
example, in Dr Bonham’s Case (1610) Chief Justice Coke opined that the courts could
intervene if Parliament enacted outrageous legislation. Since the latter part of the 17th
century, however, the traditional view described by Dicey has prevailed. Essentially, once
the courts have determined that a Bill has become an Act of Parliament, they have no
jurisdiction to override it or set it aside. This is described as the ‘enrolled Bill’ rule which
makes clear that the courts will not ‘look behind’ Acts of Parliament but rather will simply
apply any legislation which has passed both Houses and received Royal Assent, regardless
of whether proper parliamentary procedure was followed.
We look to the words of Lord Campbell in Edinburgh and Dalkeith Railway Company v
Wauchope (1842):
[A]ll that a court of justice can look to is the parliamentary roll;† they see that an Act †
Each Act of Parliament is
passed both Houses of Parliament, and that it has received Royal Assent, and no court of printed on a ‘roll’ of vellum
justice can inquire into the manner in which it was introduced into Parliament, what was (calfskin). An interesting
done previously to its being introduced, or what passed in Parliament during the various debate has arisen recently
stages of its progress through both Houses of Parliament. with regards to the continued
printing of Acts of Parliament
This approach was affirmed by Lord Reid in British Railways Board v Pickin [1974] AC 765. on vellum.
3. Parliament cannot bind its successors nor be bound by its predecessors

It is often said that the one thing Parliament cannot do is bind future Parliaments. In
order to preserve the sovereignty of Parliament, its freedom to legislate must not be
limited or hampered by anything previous Parliaments have done. This means that any
legislative provision or statute may be expressly repealed by Parliament – remember
in the UK ‘entrenchment’ is legally (but not necessarily politically) impossible.
Doctrine of implied repeal

On occasion, despite the best efforts on the part of the Parliamentary Counsel who
draft the legislation, although there has been no express repeal (by Parliament), the
provisions of two Acts of Parliament conflict, thus raising the question of which Act
should take precedence. In accordance with the principle that Parliament cannot
bind its successors (the third limb of Dicey’s definition of parliamentary supremacy,
discussed below) and since parliamentary sovereignty is upheld by the judges, the
courts have decided that the provisions of the later Act prevail and thus ‘impliedly
repeal’ the earlier Act to the extent of the conflict. This is known as the doctrine of
implied repeal through which the courts give effect to the most recent expression of
Parliament’s will. Two classic cases are Vauxhall Estates Ltd and Ellen Street Estates.
In Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 there was a conflict between
a provision in a 1919 Act of Parliament and a 1925 Act. The court ruled that the later Act
applied, and thereby impliedly repealed the conflicting earlier statutory provision.
A similar approach was taken in Ellen Street Estates v Minister of Health [1934] 1 KB 590,
which was about the amount of compensation to be paid on the compulsory purchase
of land. In the words of Lord Justice Maugham:
The Legislature cannot, according to our constitution, bind itself as to the form of
subsequent legislation, and it is impossible for Parliament to enact that in a subsequent
statute dealing with the same subject-matter there can be no implied repeal. If in a
subsequent Act Parliament chooses to make it plain that the earlier statute is being to
some extent repealed, effect must be given to that intention just because it is the will of
the Legislature.
‘Constitutional’ statutes
The obiter dicta of Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)
– often referred to as the ‘metric martyrs’ case – gave voice to the idea of a distinction
between ‘ordinary’ and ‘constitutional’ statutes. Not a legal distinction, but in practical
terms he indicated that the (judge-made) doctrine of implied repeal would not apply
to certain statutes of constitutional importance. Although these pieces of legislation
could be repealed, it would be for Parliament to do so expressly.
Lord Wilberforce many years earlier had made a similar point:
In strict law there may be no difference in status…as between one Act of Parliament and
another, but I confess to some reluctance in holding that an Act of such constitutional
significance as the Union with Ireland Act is subject to the doctrine of implied repeal.
There is an additional factor to be considered in terms of who it is that decides

whether a particular statute is a ‘constitutional’ statute – should this be the courts
or Parliament? Often, as with the examples cited by Laws LJ – which included the
Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform Acts, the European
Communities Act 1972, the Scotland Act 1998, the Government of Wales Act 1998
and the Human Rights Act 1998 – there is little doubt that these will be universally
considered to be of constitutional significance. But what of legislation which is less
obviously ‘constitutional’ in nature but might have significant impact?
The treatment of legislation of ‘first class constitutional importance’ during its

parliamentary passage is explained in Chapter 8.
Although Laws LJ’s ‘constitutional’ and ‘ordinary’ statutes have not been explicitly
approved by a higher court, a recent reference was made by the UK Supreme Court to
‘constitutional instruments’ in the HS2 case – R (HS2 Action Alliance Ltd) v Secretary of
State for Transport [2014] UKSC 3 (para.207).
For further discussion on this, see Elliott, M. ‘Reflections on the HS2 case: a hierarchy of
domestic constitutional norms and the qualified primacy of EU law’ (UK Constitutional
Law blog, 23 January 2014): https://ukconstitutionallaw.org/2014/01/23/mark-elliott-
reflections-on-the-hs2-case-a-hierarchy-of-domestic-constitutional-norms-and-the-
qualified-primacy-of-eu-law/
4.1.8 Questioning the traditional view of parliamentary sovereignty

In more recent decades, there have been challenges posed to the traditional doctrine
as espoused by Dicey; these have arisen primarily as a result of developments such as
membership of the European Union, the enactment of the Human Rights Act 1998 and
devolution.
4.1.9 The Human Rights Act 1998 and parliamentary sovereignty

The Human Rights Act 1998, along with civil liberties and human rights more generally,
is covered in detail in Chapter 11. For now, in this chapter, we will focus exclusively on
its impact on the legislative supremacy of Parliament.
The Human Rights Act 1998 was intended ‘to give further effect to the rights and
freedoms guaranteed under the European Convention on Human Rights’. What this
means in practical terms is that it domesticates the (majority of) the rights in the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR). This means that the Convention rights may now be enforced in the domestic
(i.e. national) courts rather than only at the European Court of Human Rights in
Strasbourg.
As with all other statutes, the Human Rights Act 1998 is not ‘entrenched’ (at least not
legally) and it aims to strike a balance between preserving the legislative supremacy
of Parliament and the protection of fundamental rights. Indeed, the Human Rights Act
1998 was deliberately drafted in such a manner as to not impinge upon the important
doctrine of parliamentary sovereignty. As Judge LJ explained, ‘The Act is carefully
drafted to ensure that the court cannot and must not strike down or dispense with any
single item of primary legislation’ (Re K (a child) [2001] Fam 377 (para.121)).
In this sense, it differs from the practice in many other countries where courts
do have power to strike down legislation which is found to be incompatible with
fundamental rights. Thus, the challenges posed to parliamentary sovereignty by the
Human Rights Act 1998 are more nuanced. There are two particularly relevant clauses
in the Act which we will now move on to consider. These are s.3 – which places a new
interpretative obligation on the courts – and s.4 – which enables the court to make a
declaration of incompatibility.
Section 3 places an obligation on the courts to read and give effect to all legislation
(both primary and secondary) ‘in so far as it is possible to do so…in a way which is
compatible with the Convention rights’. This provision has been used in some cases
to ‘read in’ words to statutes and to creatively construe legislation so as to ensure it is
compatible with the Convention rights.
In situations where it is simply not possible to interpret legislation in a manner which

is compatible with Convention rights, the High Court and superior courts may take the
‘exceptional course’ (Lord Steyn’s words) of resorting to s.4 and making a declaration
of incompatibility. A declaration of incompatibility is just that, a declaration, that the
domestic legislation is incompatible with Convention rights. As is made clear in s.4(6),
such a declaration does not affect the ‘validity, continuing operation or enforcement
of the provision in respect of which it is given; and…is not binding on the parties to
the proceedings in which it is made’. Rather it is, in the words of Lady Hale, to ‘warn
government and Parliament that [in the view of the courts] the United Kingdom is in
breach of its international obligations. It is then for them to decide what, if anything,
to do about it’ (Baroness Hale in R (Animal Defenders International) v Secretary of State
for Culture, Media and Sport [2008] UKHL 15).
Thus, the ultimate decision whether or not to rectify the incompatibility by amending
or repealing the primary legislation rests with Parliament and the government rather
than with the courts. Such a declaration thus places political rather than legal pressure
on the government and Parliament. So, while it is perhaps less likely that Parliament
will deliberately or consciously enact legislation that is incompatible with the
Convention rights, it remains open to them to do so. Thus, the legislative supremacy of
Parliament is left largely intact by the Human Rights Act 1998.
4.1.10 The impact of European Union membership on parliamentary

sovereignty
Following Brexit, much of this will ultimately be consigned to the history books but it
remains crucial to understand the exceptional and unique impact that membership of
the EEC/EU had on the legislative supremacy of Parliament. The sharing of sovereignty
which membership of this supranational organisation entails has posed particular
difficulties for the UK.
In relation to the status of international law within the UK, the fundamental rule
remains that it cannot take legal effect within the law of the UK unless it is brought
into domestic law by an act of the sovereign (Westminster) Parliament. This is why,
in order to give full effect to the law of the European Community (now Union), it was
necessary to enact primary legislation. Signing a treaty would not in itself be sufficient,
hence the enactment of the European Communities Act 1972.
What is the European Union (or EU)?

The EU is a unique international organisation with 28 Member States (27 after Brexit).
The economic and political union between these countries created by the EU includes,
at its core, an internal market to ensure free movement of goods, people, services and
capital, which are known as the ‘four fundamental freedoms’.
The primacy of EU law

The primacy or supremacy of European Union law was not expressly set out in the
original 1957 Treaty (the Treaty of Rome) but was made clear by the European Court of
Justice (the ECJ) through its jurisprudence in the early 1960s.
The approach adopted by the ECJ has been that by becoming signatories to the Treaties
and joining the Community (later Union) the Member States had created a ‘new legal
order’ and limited their own legislative competence (or sovereign powers) in EU
matters by conferring power to the Union to legislate on their behalf in these matters.
It is thus important to understand also that the EU (through its institutions) exercises
conferred powers and competences – that is, powers and competences which have
been transferred to the EU by the Member States via the Treaties.
In the seminal case of Van Gend en Loos in 1963 the ECJ stated that:
…the Community constitutes a new legal order of international law for the benefit of
which the states have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only Member States but also their nationals.
This principle – the supremacy or primacy of EC/EU law – was reaffirmed in Costa v ENEL
the following year. The ECJ made clear that by virtue of accession to the Community
this ‘new legal order’ became integral to the legal systems of the Member States. In
joining the Community the Member States had limited their sovereignty in that their
national (or domestic courts) were now bound to apply EC/EU law in preference to
domestic legislation where there was a conflict between the two.
In 1970 in Internationale Handelsgesellschaft the ECJ went even further and stated that:
…the law stemming from the Treaty, an independent source of law, cannot because of its
very nature be overridden by rules of national law, however framed…without the legal
basis of the Community itself being called into question. (para.1134)
Now it was clear that the supremacy of EC/EU law meant it would also take priority
over fundamental constitutional national law. Not only that but even secondary EU law
(in this case a regulation) was deemed to be a higher form of law than the constitution
of a Member State.
A few years later, in Simmenthal, the Court of Justice stated that Member States were
not free to enact future measures which were inconsistent with their EU obligations.
UK membership of the EU
The key piece of legislation was the European Communities Act 1972 (ECA 1972). It was
by virtue of this domestic statute that the UK became a Member State of the EU) in
1973. It was during the now infamous Factortame litigation (discussed below) that the
impact became explicitly clear. The constitutional significance of this legislation has
been explicitly acknowledged by the courts: in Thoburn it was referred to as one of
the ‘constitutional’ statutes that would not be subject to implied repeal. In the more
recent HS2 case it was described as a ‘constitutional instrument’ and in Miller as having
a ‘constitutional character’.
As mentioned earlier, the UK has a ‘dualist’ legal system which means that treaties
entered into do not automatically become part of domestic law. So when the UK
joined the European Economic Community (EEC), as it then was, it was not sufficient
for the government to accede to the Treaties. In order for the Treaties to take effect in
the UK they had to be brought into domestic law.
This was achieved by the enactment of the ECA 1972, which makes provision for the
legal effect of the UK’s obligations under the EU Treaties in domestic law.
Essentially, the ECA 1972 gave effect, within domestic law, to those provisions of EC/EU
law which were intended to have direct effect within Member States. By virtue of s.2(4)
of the ECA 1972 this applied to both existing and future legislation.
This means that through membership of the European Union the Westminster
Parliament was no longer the only body with the ability to make law for the UK.
Key provisions
Section 2(1) ECA 1972
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;
and the expression and similar expressions shall be read as referring to one to which this
subsection applies.
Section 2 of the ECA 1972 provides that European Community (now European Union)
law shall have direct applicability in the United Kingdom. It makes provision for the
legal effect of obligations arising by or under the Treaties in UK law.
Section 2(4) ECA 1972
…any enactment passed or to be passed, other than one contained in this part of this Act,
shall be construed and have effect subject to the foregoing provisions of this section.
Section 2(4) provides for the primacy of Community (Union) law, without expressly
stating that the law of the European Union is supreme. It requires future parliamentary
enactments to be construed and have effect subject to ECA 1972 (including s.2(1)).
So, essentially, substantive EU rights prevail over the express terms of any domestic
law, including primary legislation, made or passed after the coming into force of ECA
1972, even in the face of plain inconsistency between them.
The approach of the UK courts

What happens when even a purposive or teleological interpretation of the (domestic)
legislation cannot avoid a clear conflict with European Union law? What should the
courts do?
This issue arose for the first time in the now infamous series of litigation in Factortame.
In this instance there was an unavoidable inconsistency, an irreconcilable difference
between a domestic statute and provisions of Community law, which no creative
judicial interpretation could resolve.
The conflict was between the Merchant Shipping Act 1988 (an Act of the Westminster
Parliament) and provisions of the EEC Treaty.
The facts were as follows: Factortame was a British company owned and managed
by Spanish nationals; it owned fishing vessels which were registered as British under
the Merchant Shipping Act 1984 for the purposes of fishing under the UK’s quota
of the EC Common Fisheries Policy. In order to keep the British quota for genuinely
British fishermen, and to prevent so-called ‘quota hopping’, Parliament passed the
Merchant Shipping Act 1988 (and the Merchant Shipping (Registration of Fishing
Vessels Regulations)). These defined the term ‘British fishing vessels’ in a restrictive
manner requiring ships fishing under the quota to be British owned and controlled
and required that fishing vessels be re-registered. Factortame could no longer comply
with the new requirement of predominantly British ownership and so sought a judicial
review of the Act and related regulations as contrary to the EEC Treaty.
The Divisional Court made a reference (Factortame (No 1)) to the ECJ for a preliminary
ruling on the issues of substantive Community law raised by the proceedings and
ordered as interim relief that the application, as regards the applicants, of the
Merchant Shipping Act 1984 and Regulations should be suspended (or disapplied).
This order was set aside by the Court of Appeal on the grounds that the Divisional
Court did not have the power to suspend an Act of Parliament.
Upon appeal to the House of Lords it was held that under national law, the courts had
no jurisdiction to grant interim relief disapplying the Act in such a case. The House of
Lords sought a preliminary ruling from the ECJ on the question of whether, as a matter
of Community law, the interim relief could indeed be granted.
The ECJ ruled that a national court must be able to grant interim relief even if this
involved setting aside a rule of national law (in this instance it was s.21 of the Crown
Proceedings Act 1947, which said that no injunctions could be granted against the
Crown). The ECJ said that:
Community law must be interpreted as meaning that a national court which, in a case
before it concerning Community law, considers that the sole obstacle which precludes it
from granting interim relief is a rule of national law must set aside that rule.
In R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603
the House of Lords granted the interim relief and suspended the operation of the
Merchant Shipping Act 1984.
Thus, the case of Factortame required the ‘setting aside’ or disapplication of national
law which was found to be inconsistent with directly applicable Community law. When
this happens the statute is rendered ‘inoperative’ in the particular circumstances of
the case – not null, void or repealed.
Lord Bridge addressed the question of supremacy in Factortame, stating that:
If the supremacy […] of [EU] law over the national law of Member States was not always
inherent in the [EU Treaties] it was certainly well established in the jurisprudence of the
European Court of Justice long before the United Kingdom joined the [EU]. […] Under the
terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom
court, when delivering final judgment, to override any rule of national law found to be in
conflict with any directly enforceable rule of [EU] law.
Although some, most notably Sir William Wade, suggest that Factortame brought about
‘a constitutional revolution’ as it conflicts with the orthodox view of the legislative
supremacy of Parliament, in that the 1972 Parliament (which passed the ECA 1972)
did bind a successor Parliament (i.e. that of 1988), it can equally be argued that the
‘disapplication’ approach adopted can be reconciled with parliamentary supremacy
because it does not involve the court in any validation of Acts of Parliament.
Another perspective can be taken from the extrajudicial writings of Sir John
Laws, which is to recognise that the ECA 1972 (specifically s.2(4)) created a ‘rule of
construction for later statutes, so that any such statute has to be read (whatever its
words) as compatible with rights accorded by European law’.
In 2016, this was referred to by the High Court in Miller:
There is no superior form of law than primary legislation, save only where Parliament has
itself made provision to allow that to happen. The ECA 1972, which confers precedence on
EU law, is the sole example of this. (para.20)
Also, the Supreme Court in Miller v Secretary of State for Exiting the European Union
[2017] UKSC 5 held that nothing in EU law altered the ultimate supremacy of Parliament
which could still repeal (albeit expressly not impliedly) the ECA 1972. In the words of
the Court:
…consistently with the principle of Parliamentary sovereignty, this unprecedented state

of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like
any other statute. For that reason, we would not accept that the so-called fundamental
rule of recognition (ie the fundamental rule by reference to which all other rules are
validated) underlying UK laws has been varied by the 1972 Act or would be varied by
its repeal. (para.60)
One other piece of legislation worth a brief mention is the European Union Act 2011,
in particular s.18, which was described as a declaratory provision (in the explanatory
notes to the Act):
[D]irectly applicable or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in the United
Kingdom only by virtue of that Act or where it is required to be recognised and available in
law by virtue of any other Act. This is a declaratory provision.
This confirmed the (already firmly established) principle that, because of the dualist
system, the law of the EU has effect in the United Kingdom only by virtue of the ECA
1972 or any other UK Act.
As explained in a House of Commons Library Note (on retained EU Law):
The (then) Government’s intention was to affirm what was said in Thoburn: that an Act of
Parliament using express words can repeal the European Communities Act. If a statute did
so and to the extent that it did so, domestic courts would be obliged neither to enforce EU
law nor to give it primacy over other sources of UK law.
With the advent of Brexit the European Union Act 2011 will be repealed in its entirety.
4.1.11 Practical and political (i.e. non-legal) constraints on parliamentary

sovereignty
In Blackburn v Attorney General [1971] EWCA Civ 7 Lord Denning said:
…in legal theory, one Parliament cannot bind another and…no Act is irreversible. But legal
theory does not always march alongside political reality…Freedom once given cannot be
taken away. Legal theory must give way to practical politics.
In order to develop an understanding of how this principle operates in a practical as

well as theoretical sense, we need to recognise a distinction between the legal and
political or practical constraints on Parliament’s ability to legislate. It is important
to appreciate that there is a significant difference between what Parliament can do
legally and what it can actually do in practice.
Consider the granting of independence to former Commonwealth countries – the

Dominions of Canada, Australia, New Zealand and South Africa and others – via the
Statute of Westminster 1931, which released the Parliaments of those countries from
being subject to British laws by giving them their own sovereignty. It also provided
in s.4 that no Act of the Westminster Parliament should extend to the Dominion
unless the Dominion so requested. In strict legal theory the Westminster Parliament
could repeal s.4 of this statute – or attempt to impliedly repeal it by legislating, for
instance, for Canada without the Dominion’s consent – but such a course of action
would be impossible due to both practical and political constraints. Canada and other
Commonwealth countries view this Act which granted their independence as binding
and irreversible. These political constraints were recognised by Lord Sankey in British
Coal Corporation v The King [1935] AC 500 where he explained that ‘…the Imperial
Parliament could, as matter of abstract law, repeal or disregard Section 4 of the Statute
of Westminster. But that is theory and has no relation to reality.’
More recently, Baroness Hale explained, in Jackson v Attorney General, that ‘[I]n
general…the constraints upon what Parliament can do are political and diplomatic
rather than constitutional’.
4.2 The rule of law

At the heart of the concept of the rule of law is the idea that society is governed by law.
(Lord Reed, R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, para.68)
[T]he rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based (Lord Hope in Jackson).
The concept of the rule of law is not a uniquely British principle (although due to
our uncodified constitution it is of particular importance). On the contrary, it is of
great importance in other democratic states (where it is often explicitly referred to
in codified constitutions and accompanying bills of rights) and internationally. For
example, it is referred to in the preambles to the European Convention on Human
Rights (ECHR), which makes reference to the rule of law being part of the common
heritage of the signatory states; the Universal Declaration of Human Rights, which
pronounces that human rights should be protected by the rule of law; and the Treaty
on the European Union (TEU).
In this section we will look at attempts to define the rule of law and, in particular, the
formal and substantive conceptions of the principle. Later, in Chapter 10 on judicial
review, we shall see more on the rule of law operating in a practical rather than
theoretical sense.
Further reading
¢ Bingham, The rule of law.
¢ Craig, P. ‘Constitutional foundations, the rule of law and supremacy’ (2003)

Public Law 92–111.
¢ Jowell, J. ‘The rule of law’ in Jowell, J. and C. O’Cinneide The changing constitution.
(Oxford: Oxford University Press) 9th edition [ISBN 9780198806363].
¢ Raz, J. ‘The rule of law and its virtue’ (1977) 93 LQR 195.
¢ Sedley, S. Lions under the throne: essays on the history of English public law.
(Cambridge: Cambridge University Press, 2015) [ISBN 9781107122284] Chapter 14
‘The rule of law’.
¢ Lord Woolf ‘The rule of law and a change in the constitution’ (2004) 64 CLJ 317.
¢ R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
4.2.1 Overview of the rule of law

The rule of law is a somewhat abstract concept, which is capable of interpretation
in many different ways. The essential idea is the notion of limited government and
government according to the law, that is, government action must be subject to
limitation in order to avoid abuse of power. The rationale behind this is to ensure that
public power exercised by the state is strictly within legal limits.
This is then upheld in a practical sense by an independent judiciary through the

mechanism of judicial review (discussed in Chapter 10). Also, in a practical sense, the
rule of law indicates that society lives under a system of rules and principles in which
everyone (including government) operates within the law. Society is governed by law
rather than anarchy, and disputes are resolved by law not by violence.
It is generally accepted that the rule of law also includes certain features of the law
itself, for example, that it must be reasonably certain and predictable and must be
equally enforced.
4.2.2 Parliament, the courts and the rule of law

There is a strong presumption that Parliament will not pass legislation which is
contrary to the rule of law (although, of course, it may do, because of parliamentary
sovereignty). This is recognised by the judges through statutory interpretation. For
example, as per Lord Steyn in R v Secretary of State for the Home Department, ex parte
Pierson [1998] AC 539: ‘Unless there is the clearest provision to the contrary, Parliament
must be presumed not to legislate contrary to the rule of law.’
4.2.3 The Lord Chancellor and the rule of law

The Constitutional Reform Act 2005 (CRA 2005) is still the only statute to explicitly
refer to the rule of law. This provision was added to the Bill via a government
amendment during the final stages of its passage in the House of Lords. The CRA
2005 does not attempt to define it but does elucidate that the Lord Chancellor (and
Secretary of State for Justice) has a special responsibility for upholding and ensuring
the rule of law.
Section 1, CRA 2005:
This Act does not adversely affect—
• the existing constitutional principle of the rule of law, or
• the Lord Chancellor’s existing constitutional role in relation to that principle.
Section 17 of the CRA 2005 sets out the oath to be taken by the Lord Chancellor to:
respect the rule of law, defend the independence of the judiciary and discharge my duty
to ensure the provision of resources for the efficient and effective support of the courts
for which I am responsible.
Activity 4.2
Read pp.113–23 of Le Sueur, Sunkin and Murkens and think about whether you think
the Lord Chancellor should be a Parliamentarian with a legal background (even
though this is no longer a requirement since the CRA 2005). Consider in particular
the view of the House of Lords Constitution Committee, in a 2014 Report, which,
while not arguing that it was ‘essential’, nonetheless recognised ‘the advantages to
appointing a Lord Chancellor with a legal or constitutional background…given the
importance of the Lord Chancellor’s duties to the rule of law, these benefits should
be given due consideration’.
Activity 4.3
Research and make a list of all those who have held the position of Lord Chancellor
since 2005. How many of them have been lawyers?
4.2.4 The rule of law and judicial independence

Judicial independence is key to upholding the rule of law. An independent judiciary
is required for effective judicial control of executive power. This is predominately
imposed via the mechanism of judicial review which operates as a ‘check’ on the
executive by ensuring that government/state officials are accountable to the law and
act within their legal powers (intra vires).
In the words of Lord Woolf:
One of the most important of the judiciary’s responsibilities is to uphold the rule of law,
since it is the rule of law which prevents the Government of the day from abusing its
powers.
A similar sentiment was expressed by the Lord Chief Justice in evidence to the House
of Lords Constitution Committee:
On the question of who is responsible for upholding the rule of law, the Lord Chief
Justice told us that: ‘…it is the role of the judiciary, in practice, to uphold the rule of
law, to apply the rule of law, to enforce the rule of law, and to do that they have to be
independent of outside influence. Insofar as it is the Lord Chancellor’s job to uphold the
rule of law, this must be very largely a job of ensuring that our independence is observed’.
(HL Constitution Committee: 6th Report of Session 2006–07)
4.2.5 Defining the rule of law

Everybody believes in the rule of law, but few people could tell you what it means, and for
everyone who could tell you, there would be two others to say they were wrong. (Sedley)
It is more important for you, as students of public law, to understand how the rule of
law operates to ensure limited governmental power and thereby protect individual
rights than to provide a single definitive exposition of the principle. As indicated
above, there are a range of views as to what the rule of law includes and it is to some of
these which we now turn.
Albert Venn Dicey

Dicey’s definition of the rule of law had three elements: first, that no punishment
may be inflicted other than for a breach of the law; second, that irrespective of rank
or status all are equal under the law; and, third, that rights and freedoms are best
protected under the common law. Although Dicey’s exposition has been criticised
over the years (in particular by Jennings), it remains an important view of the rule of
law within the British constitution.
The influence of Lord Bingham

More recently (the late) Lord Bingham defined the ‘core of the existing principle [of
the rule of law]’ as being:
…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.
Lord Bingham’s definition was recently adopted by the European Commission on

Democracy through Law (‘the Venice Commission’).
Bingham also set out eight sub-rules, first in a lecture in 2006 and subsequently in his
book of 2010. These were as follows:
(1) The law must be accessible and so far as possible intelligible, clear and predictable.
(2) Questions of legal right and liability should ordinarily be resolved by application of the
law and not the exercise of discretion.
(3) The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation.
(4) My sixth sub-rule expresses what many would, with reason, regard as the core of
the rule of law principle. Ministers and public officers at all levels must exercise the
powers conferred on them reasonably, in good faith, fairly, for the purpose for which
the powers were conferred, without exceeding the limits of such powers and not
unreasonably.
(5) The law must afford adequate protection of fundamental human rights. (This would
not be universally accepted as embraced within the rule of law.)
(6) Means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide civil disputes which the parties themselves are unable to resolve.
(7) Adjudicative procedures provided by the state should be fair.
(8) The rule of law requires compliance by the state with its obligations in international
law as in national law.
4.2.6 The principle of legality

The principle of legality is the base element of the rule of law, the core and central
tenet and it essentially means that individual rights can only be interfered with if this
is provided for by lawful authority. This could be a statutory or common law power
but the key is that the state/executive has legal authority before it acts. As explained
by Paul Craig, in evidence to the House of Lords Constitution Committee, ‘a core idea
of the rule of law...is that the government must be able to point to some basis for its
actions that is regarded as valid by the relevant legal system’.
The classic rule of law case of Entick v Carrington (1765) 19 St Tr 1029 illustrates the
principle of legality and the willingness of the courts to protect individual rights. By
stating that ‘If [the power alleged by the Secretary of State and his messengers] is
law, it will be found in our books. If it is not to be found there, it is not law’, Camden CJ
made clear that the interference with rights of an individual (in this case of property)
can only be justified on the basis of some lawful authority (whether it be in the form
of a statutory or a common law power), that is, the power needs to have a clear
foundation in law (see Le Sueur, Sunkin and Murkens, pp.100 and 101).
However, as noted by Bradley and Ewing:
The requirement that government be conducted according to law (the principle of

legality) is a necessary condition for the rule of law; but insistence on legality alone does
not ensure that the state’s powers are consistent with values such as liberty and due
process.
4.2.7 Formal conception of the rule of law

Also described as the ‘content-free’ or ‘rule-book’ (by Dworkin) definition of the rule
of law, those, most notably Joseph Raz, who espouse this view suggest that the rule
of law should relate to the manner in which the law was made and the form it takes
rather than passing judgement on the content or substance of the law itself.
This version of the rule of law requires that legal rules should be capable of guiding
one’s conduct in order that one can plan one’s life (i.e. legal rules should meet a
variety of criteria, including that they should be prospective, not retrospective; that
they should be relatively stable; and that there should be an independent judiciary).
As Craig explained:
The formal conception addresses the manner in which the law was promulgated, its
clarity and temporal dimension. It does not…pass judgment upon the content of the
law…provided that the formal precepts of the rule of law are met.
It also focuses on formal rather than substantive equality.
Thus, reliance upon the formal conception of the rule of law, as with the principle of
legality, would not necessarily prevent a government passing ‘bad’ or ‘immoral’ laws
which interfere with individual rights. Such laws could fulfil the criteria of being ‘open,
prospective and clear’.
Activity 4.4
Identify which of Lord Bingham’s ‘sub-rules’ would fit into a formal definition of the
rule of law.
4.2.8 Substantive conception of the rule of law

The ‘content-rich’ or ‘rights-based’ conception of the rule of law includes the formal
aspects discussed above, but takes this further and argues that in order to comply with
the rule of law there must be adherence to and protection of human or fundamental
rights.
Craig explained that:
Certain substantive rights are derived from the rule of law. The concept provides the
foundation for these rights, which are used to distinguish between ‘good’ laws, which
comply with such rights, and ‘bad’ laws that do not.
Jeffrey Jowell and Ronald Dworkin were notable proponents of a substantive

conception of the rule of law.
Activity 4.5
Identify which of Lord Bingham’s ‘sub-rules’ would fit into a substantive definition
of the rule of law.
Activity 4.6
What are the potential difficulties or problems with both the formal and
substantive conceptions of the rule of law?
4.2.9 The practical operation of the rule of law

The importance of access to justice as a component part of the rule of law was
highlighted in the judicial review case R (on the application of UNISON) v Lord Chancellor
[2017] UKSC 51 where the Supreme Court held that the fees imposed by the Lord
Chancellor in employment tribunal and employment appeal tribunal cases were
unlawful.
4.3 Separation of powers in the UK constitution

According to Eric Barendt, ‘the separation of powers has been a central concept in
modern constitutionalism’ and its ‘primary purpose…is the prevention of arbitrary
government, or tyranny, which may arise from the concentration of power’. The
concept of separation of powers was popularised in modern-day constitutionalism
through the writings of the French philosopher Baron de Montesquieu, although the
idea itself dates back as far as Aristotle. Conventionally it refers to a tripartite structure
of government – the three branches being the legislature (Parliament), the executive
(government) and the judiciary – with three key functions: making law, applying (or
executing) law and enforcing law.
At the heart of the idea is the notion that these different types of public or
governmental function ought to be both distinguished from each other and exercised
by different institutions in order to avoid an over-concentration of power in the
hands of one person or institution. This is because it is thought that concentration of
power could lead to abuse of power and tyranny. Note Lord Acton’s famous phrase
that ‘Power tends to corrupt, and absolute power corrupts absolutely. Great men
are almost always bad men.’ Dispersing or ‘balancing’ powers across the branches of
government is thus one means of avoiding potential abuse of power or tyranny. In this
sense the concept of separation of powers might be properly viewed as a means to an
end rather than an end in itself.
In addition to the main rationale for separation of powers there are other functions
which have been suggested. Barber argued that ‘it is efficiency, not liberty, which
is at the heart of separation of powers’ – the idea being that if powers are allocated
to the most appropriate institution with the requisite expertise it is more likely
to be exercised efficiently. Separation of powers also often acts as a ‘template’ for
constitutional design or a starting point for planning governmental structure (an
obvious example is that of the American constitution).
Further reading
¢ Barber, N.W. ‘Self-defence for institutions’ (2013) 72(3) Cambridge Law Journal 558.
¢ Barendt, E. ‘Separation of powers and constitutional government’ (1995) Public

Law 599.
¢ Sedley, S. ‘Does the separation of powers still work’ in Galligan, D.J. (ed.)
Constitution in crisis: the new Putney debates. (London: I.B. Tauris, 2017)
[ISBN 9781788310727].
¢ Young, A. ‘The relationship between Parliament, the executive and the judiciary’
in Jowell, J. and C. O’Cinneide The changing constitution. (Oxford: Oxford
University Press) 9th edition [ISBN 9780198806363].
4.3.1 Complete (pure) or partial separation of powers

Constructive relationships between the three arms of government – the executive,
the legislature and the judiciary – are essential to the effective maintenance of the
constitution and the rule of law. (HL Constitution Committee, Sixth Report of Session
2006–07)
According to Bradley and Ewing, ‘Complete separation of powers is possible neither

in theory nor in practice’ and indeed a complete separation could result in legal and
constitutional deadlock. Rather more important is a balancing of powers and the
existence of effective checks between the branches or organs of government. This
is essentially the system which exists in the UK constitutional and governmental
structure.
Activity 4.7
In the following example about taxation (adapted from Bradley and Ewing), in
relation to the three ‘functions’, identify which type of ‘function’ is exercised by
which branch of government.
a. Enacting a law authorising a new tax.
b. Operating the machinery for assessing and collecting the tax payable by each
taxpayer.
c. Determining disputes between the taxpayer and the tax collector as to the tax
in a particular case.
4.3.2 Separation of powers and the ‘Westminster model’

In a parliamentary democracy such as the UK there is no separation between
Parliament and government. Rather the opposite; government ministers are required
to be Members of Parliament (one House or the other) to ensure that they are
adequately held to account. It is likely that operation of the UK constitution, with a
structure closer to a fusion of powers than a separation (at least, between executive
and legislature), owes as much to the history of the UK than to a conscious decision.
As the constitution of the UK has developed in a piecemeal and pragmatic manner it
is therefore unlikely to conform to any theoretical model. Further, the constitutional
settlement of the late 17th century was firmly established before the popular ‘modern’
thinking on separation of powers (i.e. Montesquieu’s version of the doctrine) was
developed a century later.
Within the UK’s constitution there is one branch of government which has always
been more independent of (rather than dependent upon) the others, namely the
judiciary. This judicial independence was significantly enhanced in a structural sense
by the CRA 2005.
Position of the Lord Chancellor (before the CRA 2005)

The Lord Chancellor held a position in all three branches of government (this
epitomised the absence of a separation of powers):
1. Speaker of House of Lords (legislature).
2. Head of judiciary and member of the House of Lords Appellate Committee

(although there was a convention restricting the Lord Chancellor’s role in
particular cases); central role in appointment of judges (judiciary).
3. Senior Cabinet minister – past Lord Chancellors had claimed that this enabled them
to defend the independence of the judiciary (executive).
Position of Lord Chancellor (after the CRA 2005)

1. No longer Speaker of the House of Lords (the House now selects its own ‘Lord
Speaker’).
2. Judicial office was removed from the role of Lord Chancellor – and the Lord
Chancellor is no longer a judge. The functions relating to the courts and judiciary
(judicial deployment, complaints and discipline functions) are now shared

between the Lord Chief Justice (now head of the judiciary) and the Lord Chancellor;
establishment of Judicial Appointments Commission (JAC).
3. The Lord Chancellor is still a senior Cabinet minister and the role is now combined
with that of Secretary of State for Justice.
4.3.3 The Constitutional Reform Act 2005

There were some triggers which brought about this reform, in particular the
enactment of the Human Rights Act 1998, Article 6 ECHR and the related case law,
which in effect made it illegal for the fusion of the legislature and judiciary (via the
House of Lords as the highest court) to continue. For example, in McGonnell v UK (2000)
the European Court of Human Rights held that the overlapping judicial, executive and
legislative roles of the Bailiff of Guernsey breached Article 6, necessitating reform.
The CRA 2005 significantly enhanced the separation of powers in the UK by removing the
judicial role from the Lord Chancellor (now also the Secretary of State for Justice) and
allowing for the creation of a new, structurally and physically separate, Supreme Court to
replace the Judicial Committee of the House of Lords as the highest court in the UK.
The next step is to look a little more at where the branches of government interact,
whether via overlap of personnel or function, or where they provide checks upon each
other.
4.3.4 Legislature and judiciary
Judicial law-making
Judicial ‘law-making’ or innovation perhaps remains one of the more controversial
overlaps in the context of the British constitution. Although the common law is
without doubt secondary to the statutory law, through the mechanisms of statutory
interpretation and the development of the common law the judges retain the
ability to ‘discover’ new laws. For example, R (Evans) v Attorney General [2015] UKSC
21 concerned the interpretation of s.53 of the Freedom of Information Act 2000 in
relation to whether correspondence between the Prince of Wales and government
ministers should be disclosed. In this case, the court interpreted a statute in a manner
which protected fundamental common law rights and in so doing restricted the
powers of the executive (here specifically the Attorney General).
Remember also, that until 2009 the most senior judges – the Lords of Appeal in
Ordinary – were entitled to sit and vote on new legislation in the House of Lords,
although they rarely did so in practice. The reasons for this are evident when we
consider that in Jackson, in which the Hunting Bill was considered, Lords Scott and
Hoffmann were unable to act as judges because they had voted in favour of the
Bill during its legislative passage in the House of Lords and therefore the requisite
impartiality could not be demonstrated.
Statutory restrictions
There are statutory restrictions on the holding of positions in more than one branch
of government, for example, Schedule 1 to the House of Commons Disqualification Act
1975 and s.137 of the CRA 2005 provide that full-time members of the judiciary are not
eligible to serve as MPs or peers; similarly MPs and peers are not able to act as full-time
judges. As noted above, the Lord Chancellor used to preside over the House of Lords
when it sat in its legislative capacity, but this is now undertaken by the Lord Speaker.
Activity 4.8
Look up who currently holds the position of Lord Speaker in the House of Lords.
The sub judice rule

The sub judice rule requires that MPs should not discuss current or pending cases in
Parliament. The mechanism for enforcing this rule is the House of Commons Standing
Order 42A which states: ‘The Speaker, or the chair, may direct any Member who
breaches the terms of the sub judice resolution of the House to resume his seat.’
Activity 4.9
Think about why this rule exists. Can you find out if the rule can ever be waived?
4.3.5 Executive and judiciary

As discussed elsewhere in this guide, there is a statutory duty on ministers to uphold
judicial independence; in particular, s.3 of the CRA 2005 imposes a specific duty on the
Lord Chancellor to ‘uphold the continued independence of the judiciary’.
By constitutional convention, judges must not play an active part in party politics and
judges should not be criticised by members of the executive.
The judiciary provides a check on the executive in terms of the legal accountability
imposed via judicial review.
4.3.6 Executive and legislative overlap – the ‘Westminster model’

Even after the CRA 2005, the UK retains the system of a parliamentary executive
through which the executive (the elected government of the day) is accountable to
the legislature. This political accountability is provided through a series of scrutiny
mechanisms such as ministerial question time, debates and committees. In addition,
the executive ultimately depends on the support of legislature as it could be ousted
via a motion of no confidence.
Activity 4.10
Drawing upon your knowledge and understanding of both the overlaps and the
checks and balances within the UK’s governmental structure, think about the
following descriptions and choose which you think is most accurate.
a. The ‘efficient secret’ of the British constitution is the ‘close union, the nearly
complete fusion of the executive and legislative powers’ (Bagehot, W. The
English constitution. Oxford World Classics (Oxford: Oxford University Press, 2001;
first published 1867) [ISBN 9780192839756]).
b. The ‘elective dictatorship’ described by Lord Hailsham QC (former Lord

Chancellor, 1978).

Before moving on it is important to ensure that you have begun to develop a solid
understanding of the fundamental principles to which you have been introduced in
this chapter.
u successfully completed the formative assessment on the VLE?

This chapter brings together the underpinning principles of the British constitution
and you will need a solid level of understanding of all of these in order to succeed
in any assessment. The principles of parliamentary sovereignty, the rule of law and a
partial separation of powers could be assessed in a combined manner – for example,
the relationship between the rule of law and an independent judiciary is an obvious
one – or separately.
Questions around the extent to which Dicey’s description of parliamentary

sovereignty hold true today are also typical. This will be particularly interesting now
that Brexit has occurred and the repeal of the European Communities Act 1972 is no
longer in the realm of hypothesis.
Notes
Part II Institutions of government – powers and
functions
Introduction
As explained in The Cabinet manual:
The UK is a Parliamentary democracy which has a constitutional sovereign as Head of

State; a sovereign Parliament, which is supreme to all other government institutions,
consisting of the Sovereign, the House of Commons and the House of Lords; an Executive
drawn from and accountable to Parliament; and an independent judiciary.
The Westminster model of a parliamentary executive or parliamentary government is

a defining characteristic of the UK. The overlap or ‘close union’ between the executive
and the legislature has been variously described as the ‘efficient secret’ of the British
constitution (see Bagehot) and as an ‘elective dictatorship’ (Lord Hailsham). This is
accompanied by an impartial and (largely) independent judiciary. Thus, as mentioned
in Chapter 4, the UK possess a partial separation of powers.
This part of the module guide will introduce the three main or ‘core’ institutions
(or organs) of government in the UK, namely the executive, the legislature and the
judiciary. Throughout the following chapters we will learn about the composition,
powers and functions of these institutions. One thing that you should keep in mind as
you read around this is the underlying theme of power and accountability.
5 The Crown, monarch and the royal prerogative
powers
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.1 Defining the royal prerogative/prerogative powers . . . . . . . . . . . . 53
5.2 Constitutional/personal prerogative powers of the monarch . . . . . . . 54
5.3 Continued justification for prerogative powers . . . . . . . . . . . . . . 55
5.4 Parliamentary control of prerogative powers . . . . . . . . . . . . . . . 56
5.5 Judicial control of prerogative powers . . . . . . . . . . . . . . . . . . 57
5.6 Reform of the prerogative . . . . . . . . . . . . . . . . . . . . . . . . 58

Introduction
The United Kingdom is a constitutional monarchy. This was established in the 17th
century following the so-called ‘glorious revolution’ and the conditions subsequently
set out in the Bill of Rights 1689. As indicated above, this means that the constitutional
role of the hereditary monarch as Head of State in the UK today has become one
which remains important but is now largely ceremonial. The monarch’s role and
powers are tightly constrained by rules and constitutional conventions. In the words
of Bradley and Ewing, ‘the Queen may reign but it is the PM and other ministers who
rule’. This was made clear as long ago as the early 17th century by Lord Coke in the
Case of Proclamations (1611) 12 Co Rep 74 which held that ‘the King hath no prerogative,
but that which the law of the land allows him’. This meant that the Crown had no
prerogative powers to change the common law or statute, or to create new offences.
It is important to understand that the Bill of Rights 1689 is not a human rights
Act or what we might understand by this title in a more contemporary sense
but rather an Act which established the principles of frequent parliaments, free
elections and freedom of speech within Parliament (referred to as parliamentary
privilege) and also includes no right of taxation without Parliament’s agreement.
For further detail see the relevant House of Commons Library Note referred to in
this chapter’s Further reading.
The monarch is also Head of State for 15 other Commonwealth realms. This was
important in relation to the relatively recent legislation on succession – see the
Succession to the Crown Act 2013 and explanatory notes.
The monarch is also Head of State for 15 other Commonwealth realms. This was
important in relation to the relatively recent legislation on succession – see the
Succession to the Crown Act 2013 and explanatory notes.
As Bagehot explained in 1867, the monarch has ‘the right to be consulted, the right
to encourage and the right to warn’. However, although the present-day monarch
has a weekly audience with the Prime Minister and receives copies of Cabinet papers
and other documents, her practical influence is very limited. It is also of particular
importance that the monarch is above party politics and immune from party political
influences. Finally, please note that although the notion of ‘the Crown’ is complex and
multifaceted, in the context of this module when we refer to ‘the Crown’, in practical
terms we tend to mean the monarch (or sovereign).
Task
Remember that as you work through the module guide you should find appropriate
definitions for new terms/concepts and add these to your personal glossary – this will
both deepen your understanding and assist your revision later.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 10 ‘Prerogative powers’ and Chapter 11
‘Case study: deployment of British armed forces abroad’.
Essential reading
¢ Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller No.
1). Both the full Supreme Court judgment and a press summary can be found
here: www.supremecourt.uk/cases/uksc-2016-0196.html
Further reading
¢ House of Commons Library Briefing Paper ‘The royal prerogative’ (No. 03861,
17 August 2017): https://researchbriefings.parliament.uk/ResearchBriefing/
Summary/SN03861
Public law 5 The Crown, monarch and the royal prerogative powers page 53
¢ House of Commons Library Note ‘The Bill of Rights 1689’ (SB/PC/0293, 5 October
2009): https://researchbriefings.parliament.uk/ResearchBriefing/Summary/
SN00293
¢ Public Administration Select Committee ‘Taming the prerogative: strengthening

ministerial accountability to Parliament’ (Fourth Report of Session 2003–04, HC
422).
¢ Blackburn, R. ‘Monarchy and the personal prerogatives’ (2004) Public Law 546.
¢ Brazier, R. ‘“Monarchy and the personal prerogatives”: A personal response to

Professor Blackburn’ (2005) Public Law 45.
¢ Endicott, T. ‘Parliament and the prerogative: from the Case of Proclamations to

Miller’ (Judicial Power Project, 1 December 2016): http://judicialpowerproject.
org.uk/wp-content/uploads/2016/12/Endicott-2016-Parliament-and-the-
Prerogative.pdf
5.1 Defining the royal prerogative/prerogative powers

The royal prerogative remains an important source of power within the UK. In Miller v
Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller No. 1) the Supreme
Court defined the royal prerogative as encompassing the:
residue of powers which remain vested in the Crown…[which] are exercisable by

ministers, provided that the exercise is consistent with Parliamentary legislation.
This contemporary definition can now be added to the two classic definitions of the
prerogative:
...the residue of discretionary or arbitrary authority, which at any 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. (Dicey, 424)
…that special pre-eminence, which the King hath, over and above all other persons and
out of the ordinary course of the common law, in right of his regal dignity. (Blackstone, W.
Commentaries on the Laws of England. 4 volumes (London: Cavendish, 2001; first published
1765–1767) [ISBN 9781859414828])
In order to draw out the central aspects of the royal prerogative it needs to be
recognised that the power is legal in nature and unique to the Crown. It stems from
a time when the monarch’s personal power was much greater than it is today: aside
from a few personal prerogative powers (such as the granting of particular honours),
now prerogative power is exercised either by or on the advice of the government of
the day.
The House of Commons Library Briefing Paper on the royal prerogative (see Further
reading) indicates that there are three fundamental principles of the prerogative.
These are:
1. The supremacy of statute law. Where there is a conflict between the prerogative
and statute, statute prevails. Statute law cannot be altered by use of the
prerogative.
2. Use of the prerogative remains subject to the common law duties of fairness
and reason. It is therefore possible to challenge use of the prerogative by judicial
review in most cases.
3. While the prerogative can be abolished or abrogated by statute, it can never be

broadened. However, Parliament could create powers by statute that are similar to
prerogative powers in their nature.
You will learn more about these as you work through the various readings and case law.
First we will turn to examples of the prerogative powers which are still exercised by
the monarch (rather than the government of the day) and the limitations and controls
upon the exercise of these powers.
In recent years, there have been a number of inquiries and reports into various
aspects of prerogative powers by parliamentary committees (including the House of
Lords’ Constitution Committee, the House of Commons’ Public Administration Select
Committee and Political and Constitutional Reform Committee). Also, in 2009, a fairly
comprehensive (albeit not exhaustive) list of the prerogative powers identified at
that time was included in an annex to a government report – The Governance of Britain,
Review of the Prerogative Powers: Final Report.
In 2004, a report (Taming the Prerogative: Strengthening Ministerial Accountability to

Parliament) by the House of Commons’ Public Administration Select Committee
identified three categories of prerogative powers, namely: the sovereign’s
constitutional prerogatives (which are also sometimes referred to as the personal
prerogative powers of the monarch); the legal prerogatives of the Crown (such as
the legal principle that the Crown can do no wrong, and that the Crown is not bound
by statute save where by express words or necessary implication); and prerogative
executive powers (such as the conduct of diplomacy, the governance of overseas
territories and the deployment of the armed forces).
5.2 Constitutional/personal prerogative powers of the monarch

The monarch’s constitutional prerogatives or personal prerogative powers include the
following:
u the granting (or withholding) of Royal Assent to legislation
u the appointment of the Prime Minister and appointment of other ministers
u the prorogation and summoning of Parliament.
In relation to how these powers are exercised in practice, the importance of

constitutional conventions (which were discussed in Chapter 2) in the UK constitution
becomes clear. The exercise of each of these (legal) prerogative powers is firmly
governed (or controlled) by constitutional convention.
5.2.1 Royal Assent to legislation

Royal Assent signals the final stage in draft legislation (a Bill) becoming law (an Act).
Although the monarch has a legal power to grant (or withhold) Royal Assent to
legislation, constitutional convention dictates that Royal Assent will always be granted
if the legislation has passed Parliament. The last sovereign to refuse Royal Assent to a
Bill passed by Parliament was Queen Anne in 1708. This also serves as an example of
a very firmly embedded constitutional convention with over 300 years of unbroken
observance.
5.2.2 Appointment of Prime Minister

Although the monarch has a legal power to appoint the Prime Minister it is, again,
constitutional convention which governs how this power is exercised. The sovereign
will appoint as Prime Minister the person who is best able to ‘command a majority’ in
the House of Commons. This is normally taken to mean the leader of the political party
with the largest number of seats.
In the unusual situation of a ‘hung Parliament’ – where no party has a majority of seats
– the decision as to who should be Prime Minister rests upon conventions and political
discussions in which the monarch would not be expected to become involved.
5.2.3 Prorogation and summoning of Parliament

Until the enactment of the Fixed-term Parliaments Act in 2011 (which introduced
five-year fixed parliamentary terms) the monarch could, in theory, dissolve Parliament
through the prerogative. In practice though, the monarch acted on the advice of the
Prime Minister and would grant a dissolution upon their request. The dissolution of
Parliament has now been placed on a statutory basis.
The prorogation and summoning of Parliament remains a prerogative power of the

Crown. These formal powers, however, will also be exercised upon the advice of the
Prime Minister – this was confirmed by the Deputy Private Secretary to HM The Queen
in a letter to the Chair of the Political and Constitutional Reform Committee, which
specifically stated that the Queen would ‘always act on the advice of the Government
of the day’ as to setting the first meeting of a Parliament.
In their election manifestos for the 2019 General Election, both the main political
parties expressed an intention to repeal the Fixed-term Parliaments Act:
u ‘We will get rid of the Fixed-term Parliaments Act – it has led to paralysis at a time
the country needed decisive action’ – Conservative Party Manifesto 2019;
u ‘A Labour government will repeal the Fixed-term Parliaments Act 2011, which has
stifled democracy and propped up weak governments’ – Labour Party Manifesto,
2019.
In December 2020, the Government published a Draft Fixed-term Parliaments Act

2011 (Repeal) Bill that provides for repeal of the 2011 statute. This draft Bill contains
provisions to fix the maximum length of a Parliament at five years and expressly to
revive the prerogative power to dissolve Parliament
You can read the draft Bill here: https://assets.publishing.service.gov.uk/government/

uploads/system/uploads/attachment_data/file/940027/Draft-Fixed-term-Parliaments-
Act-Repeal-Bill.pdf
The Government also published, alongside the draft Bill, a ‘draft statement of the
non-legislative constitutional principles that apply to dissolution’, which can be read
here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/940028/Dissolution-Principles.pdf
For some early academic commentary, see: https://publiclawforeveryone.

com/2020/12/02/repealing-the-fixed-term-parliaments-act/ and https://
ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-
act-2011-repeal-bill-turning-back-the-clock/
The Crown also still has some powers to legislate under the prerogative by Order in
Council.
Activity 5.1
Use the UK Parliament Website Glossary to find a definition of ‘Orders in Council’.
How do these differ from ‘Orders of Council’?
Activity 5.2
Read the overview and extract from R (on the application of Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61 (see pp.325 and
326 of Le Sueur, Sunkin and Murkens) and reflect on how this other type of primary
legislation differs from an Act of Parliament.
Activity 5.3
Please read the following section of the UK Parliament website to understand what
is meant by ‘prorogation’: www.parliament.uk/about/how/occasions/prorogation/
(You will need to understand this before reading R (Miller) v The Prime Minister and
Cherry v Advocate General for Scotland [2019] UKSC 41.)
5.3 Continued justification for prerogative powers

Most states possess some type of ‘reserve power’ which may be exercised by the
executive and in many senses that is the role of the remaining prerogative powers in
the UK constitution.
In Miller it was explained as follows:

There are important areas of government activity which, today as in the past, are
essential to the effective operation of the state and which are not covered, or at least not
completely covered, by statute. Some of them, such as the conduct of diplomacy and
war, are by their very nature at least normally best reserved to ministers just as much as in
modern times as in the past.
5.4 Parliamentary control of prerogative powers
5.4.1 Statute law versus prerogative power

Parliament can abolish the prerogative and introduce statutory powers instead. In the
UK, Acts of Parliament are the highest form of law, thus where a conflict arises between
a statute and a prerogative power, the statute prevails.
This is often described as the ‘De Keyser principle’ owing to the decision in Attorney-
General v De Keyser’s Royal Hotel Ltd [1920] AC 508. In this case Parliament had not
expressly abolished the prerogative power, but had merely created a statutory scheme
dealing with the same subject. A general rule emerged that, in these circumstances,
the Crown may not rely upon the prerogative.
Activity 5.4
Try to find out what happened in 2010 in relation to the executive power to ratify
treaties. Which statute affected the prerogative power?
5.4.2 Parliamentary scrutiny of prerogative powers

The exercise of prerogative power by government can be scrutinised by Parliament
through its normal scrutiny mechanisms, such as questions, debates and committees
(discussed later in relation to political accountability). However, there are, by
convention, certain matters that are immune from parliamentary questions.
Activity 5.5
Prerogative powers: Case study – Parliament’s role in conflict decisions
Read the following materials on Parliament’s role in the use by government of the
prerogative power to engage in armed conflict (i.e. to wage war) and think about
your answers to the questions which follow.
u Chapters 1 and 3 of the House of Lords Constitution Committee ‘Constitutional
arrangements for the use of armed force’ (Second Report of Session 2013–14, HL
Paper 46): www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.
pdf
a. Do you agree with the House of Lords Constitution Committee’s conclusions?
u Institute for Government blog post ‘Parliament, the royal prerogative and
decisions to go to war’ (6 September 2013): www.instituteforgovernment.org.uk/
blog/6589/parliament-the-royal-prerogative-and-decisions-to-go-to-war/
More recent developments are helpfully summarised in the next few items:
u Institute for Government blog post on the House of Commons
vote on Syria: www.instituteforgovernment.org.uk/blog/12834/
commons-vote-on-syria-four-questions-answered/
u ‘Syria crisis: Cameron loses Commons vote on Syria action’ (August 2013):
www.bbc.co.uk/news/uk-politics-23892783
u Syria air strikes approved in Commons (December 2015):

www.bbc.co.uk/news/uk-politics-34989302
2018 events:
u ‘Theresa May wins second vote on Syria action as Jeremy Corbyn demands
new war powers law’ www.independent.co.uk/news/uk/politics/syria-vote-
airstrikes-parliament-theresa-may-corbyn-douma-russia-a8309321.html
u ‘Syria air strikes: Theresa May says action “moral and legal”’ www.bbc.co.uk/
news/uk-politics-43775728
b. Do you consider it appropriate that Parliament’s role (in scrutinising the use
of this prerogative power) is governed by constitutional convention? Explain
your answer.
c. Do the following statements change or reinforce your answer to the earlier

questions?
The first edition of The Cabinet manual summarises previous parliamentary

involvement in relation to military action and states that:
In 2011, the Government acknowledged that a convention had developed in Parliament
that before troops were committed the House of Commons should have an opportunity
to debate the matter and said that it proposed to observe that convention except when
there was an emergency and such action would not be appropriate. (para.5.38)
The inclusion of this stemmed from a Select Committee recommendation which called
for The Cabinet manual to be amended to include the convention that Parliament
should have the opportunity to debate decisions to commit troops to armed conflict,
and that the debate should take place before the troops are committed, except in
emergency situations.
Also in January 2013, the Foreign Secretary, the Rt Hon William Hague MP, stated:
My view remains, as I set out in my statement to the House on 21 March 2011: wherever
possible, Parliament should have the opportunity to debate, in advance, the commitment
of UK forces to military action overseas, unless there is an emergency where such action
would not be appropriate. Since my statement, we have declared and formalised this
understanding within the Cabinet Manual.
5.5 Judicial control of prerogative powers

The courts have had the power to determine the existence and extent of prerogative
powers for a long time, but it was not until the seminal ‘GCHQ’ case (Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374) that prerogative powers were
deemed to be subject to judicial review.
This case also established that, although as a matter of principle actions under the
prerogative were subject to judicial review, there were some questions of prerogative
power which were non-justiciable. In this instance the decision by the minister for
the Civil Service (usually the the Prime Minister) preventing staff at Government
Communications’ Headquarters (GCHQ) from being trade union members on the
grounds of national security was considered to be non-justiciable.
The general rule is that the courts will not recognise the existence of new prerogative
powers. Authority for this can be derived from the classic rule of law case of Entick v
Carrington (1765) 19 St Tr 1029 and the frequently cited words of Lord Diplock in BBC v
Johns [1965] Ch 32 that ‘[I]t is 350 years and a civil war too late for the Queen’s courts to
broaden the prerogative’.
Sometimes, however, it is difficult to distinguish between the creation of a new

prerogative and applying an old prerogative to new circumstances (which could, in
some circumstances, constitute a reinterpretation of a power). For examples see R v
Home Secretary, ex parte Northumbria Police Authority [1989] QB 26.
In the more recent case of R (Bancoult) v Foreign Secretary (No. 2) [2008] UKHL 61 the
House of Lords held that the making of an Order in Council could also be reviewed
(rather than merely the manner in which the power it conferred was exercised).
5.5.1 Ouster clauses

It will be interesting to watch the progress of the Draft Fixed-term Parliaments Act 2011
(Repeal) Bill that contains a wide ‘ouster clause’, namely:
(3) Non-justiciability of revived prerogative powers A court of law may not question—
(a) the exercise or purported exercise of the powers referred to in section 2,
(b) any decision or purported decision relating to those powers, or
(c) the limits or extent of those powers.
An ‘ouster clause’ is an attempt in legislation to exclude the jurisdiction of the court, i.e.
words in a statute intended to ‘oust’ the jurisdiction of the courts. In other words, to
prevent the powers of a public authority as provided for in an Act of Parliament being
subject to judicial review.
For a short commentary on ouster clauses see: https://publiclawforeveryone.

com/2017/02/10/distinguishing-anisminic-ouster-clauses-parliamentary-sovereignty-
and-the-privacy-international-case/
Activity 5.6
Place the following prerogative powers into categories.
a. Appointment of a Prime Minister.
b. The right to sturgeon.
c. Deployment of the armed forces.
In relation to this activity, you might find the following helpful:

House of Commons Library Briefing Paper ‘The royal prerogative’ (No. 03861, 17
August 2017): https://commonslibrary.parliament.uk/research-briefings/sn03861/
5.6 Reform of the prerogative

Although in recent decades the prerogative powers have been placed under
increasing scrutiny – both judicial and parliamentary – there is still discussion as to
whether further reforms are necessary or, indeed, desirable.
A brief but interesting discussion on this can be found in the following book chapter.
¢ Young, A. ‘Are prerogative powers necessary in the twenty-first century?’ in

Galligan, D.J. (ed.) Constitution in crisis: the new Putney debates. (London: I.B.
Tauris, 2017) [ISBN 9781788310727].
Activity 5.7
Read this chapter and, drawing upon this and other authority and examples you
have encountered during your reading, try to draw up a list of arguments, first,
in favour of and, then, opposed to reform. In particular, think about what would
potentially change if all prerogative powers were replaced by statute.

have been introduced in this chapter.
u compiled a glossary of new terms and phrases (for example, ‘prorogation’, ‘Order in
Council’, etc.)?


The topic of prerogative powers links with and relates to many other topics on the
Public law syllabus. Reading about and around this topic will provide you with a solid
understanding of the importance of constitutional conventions in aspects of the UK
constitution and some good examples to draw upon, both in terms of very firmly
embedded conventions, in relation to, for example, the granting of Royal Assent and
other more recently established and arguably less clearly defined conventions, such as
the role of the House of Commons in debating (or possibly approving) military action.
In terms of specific questions on the prerogative, these often focus on the adequacy
of control and scrutiny and the corresponding need (or not) for further reform. A few
examples of these kinds of examination questions are included below.
Sample examination questions

Question 1
Discuss the legal and political controls over ministers’ exercise of royal
prerogative executive powers of state.
Question 2
Discuss calls to reform the prerogative powers of the Crown, and the legal and
political mechanisms that already limit their exercise.
Question 3
‘The Monarchy is the one part of our constitutional machinery which is working
more or less as it was designed to do’ (Lord Hailsham QC, former Lord Chancellor,
1978). Discuss.
Notes
6 The executive
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.1 The Prime Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 The Cabinet and other ministers . . . . . . . . . . . . . . . . . . . . . 63
6.3 The civil service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.4 Political accountability via ministerial responsibility . . . . . . . . . . . 64

Introduction
Although sometimes rather difficult to clearly define, the executive, in the context of
the Public law module, is generally used to refer to the central government, of which
the sovereign is the nominal head. It includes the Prime Minister, the Cabinet, junior
ministers and the civil service. More widely, the executive extends to include local
authorities, the police and armed forces. The executive is the branch of government
which formulates policy and is responsible for its implementation.
It is interesting to observe that although we perceive the existence of a Prime Minister

(PM) and the Cabinet as a fundamental component of the state, these are very much
creatures of convention. In relation to the Prime Minister, in particular, the role has
evolved over time to the central position which exists today. It is also interesting to
note that there are still few specific references in statute to the Prime Minister. The
powers of the PM and Cabinet do not derive from statute nor from common law,
despite the central role the holders of these positions perform at the heart of the
governmental structure and their constitutional significance.
Walter Bagehot famously distinguished between the ‘dignified’ and ‘efficient’ parts
of the constitution and this distinction will help us to see the differences between
the government of the day (an ‘efficient’ part) and the role of the Crown (a ‘dignified’
part) which was considered in Chapter 5 above. As the importance of the monarch has
diminished, the role of the Prime Minister and other ministers has correspondingly
increased. Today, most functions are carried out by the government of the day in the
name of the Crown.
This chapter will also consider accountability through the important convention of
ministerial responsibility.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 8 ‘Introduction to executive functions’
and Chapter 9 ‘Government and accountability’.
Essential reading
¢ Ministerial Code (current edition August 2019): www.gov.uk/government/
publications/ministerial-code
¢ Section 2 House of Commons Disqualification Act 1975.
Further reading
¢ House of Commons Library Briefing Paper ‘Collective responsibility’ (No. 7755,
14 November 2016): https://researchbriefings.parliament.uk/ResearchBriefing/
Summary/CBP-7755
¢ House of Commons Library Note ‘Individual ministerial accountability’

(SN/PC/06467, 8 November 2012): https://researchbriefings.parliament.uk/
ResearchBriefing/Summary/SN06467
¢ House of Commons Library Briefing Paper ‘The Ministerial Code and the
Independent Adviser on Ministers’ Interests’ (No. 03750, 17 January 2018): https://
researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03750
Public law 6 The executive page 63
6.1 The Prime Minister

During the Parliament of 2010–15 one of the many constitutional matters that was
examined by Select Committees was that of the role and powers of the Prime Minister.
During this inquiry by the Political and Constitutional Reform Select Committee, the
following statement was received in evidence:
There is no constitutional definition of the British Prime Minister’s role or any authoritative
specification of the office’s functions, powers and responsibilities. They are a matter of
convention and usage, not statute, and are thus to a large degree flexible and subject to
variation and change over time.
As with many aspects of the British constitution, the office of Prime Minister has
developed over time by convention rather than by law. As you have read in earlier
chapters, constitutional conventions govern the appointment of the Prime Minister
and also the fact that today they will invariably be a member of the House of Commons
rather than the House of Lords. Although the Queen retains a prerogative power to
appoint whomsoever she wishes as Prime Minister, constitutional convention dictates
that she appoint the person who is best able to command a majority in the House of
Commons. In practical terms, this means the leader of the largest political party in the
House.
The last Prime Minister to lead a government from the House of Lords was the
Marquess of Salisbury who retired in 1902. For more detail see: https://history.blog.
gov.uk/2013/04/24/prime-ministers-in-the-house-of-lords/
6.1.1 Powers
The Prime Minister (PM) is the head of government in the United Kingdom. They are
sometimes described as being primus inter pares (first among equals) in the Cabinet. It
is customary for the Prime Minister to also be the minister for the Civil Service.
The PM has some significant powers, in particular the so-called power of patronage,
which means they effectively appoint (and dismiss) all ministers. This can enable the
building of alliances and relationships with other senior MPs but also the demise of
these alliances when ministers are demoted as well as promoted. The PM also can
make decisions about creating new government departments or merging or renaming
those which already exist. For example, in June 2020, the Prime Minister, Boris
Johnson, announced a merger of two government departments: the Department for
International Development (DFID) and the Foreign and Commonwealth Office (FCO),
which have become a new department known as the Foreign, Commonwealth and
Development Office. See: www.gov.uk/government/news/prime-minister-announces-
merger-of-department-for-international-development-and-foreign-office
Cabinet is composed of the most senior government ministers (essentially the

Secretaries of State of key government departments).
Activity 6.1
Look for a definition of the Prime Minister’s role in The Cabinet manual.
6.2 The Cabinet and other ministers

As mentioned above, like the PM, the Cabinet may also be accurately described as ‘a
creature of convention’. Constitutionally, the appointment of all ministers is a decision
for the monarch but in practice the PM determines who shall be appointed.
The PM decides which government departments shall be represented at Cabinet

meetings, although by convention certain departments, for example, the Home Office
and Foreign Office, are always represented. The most politically important and senior
ministers (from both Chambers) are those which form the Cabinet. It is during weekly
meetings of Cabinet and in Cabinet committees that important decisions on policy

and future legislation are taken.
The Prime Minister and Cabinet are supported by the Cabinet Office (a civil service
department): www.gov.uk/government/organisations/cabinet-office
Activity 6.2
Look up the definition of Cabinet in the glossary on the UK Parliament website.
Activity 6.3
Look up the current members of Cabinet. Which government departments are
represented? How many members of Cabinet are members of the House of Lords?
Do you think the balance is appropriate?
Other ministers include the government’s law officers – the Attorney General and
Solicitor General, and the Chief Whip (officially known as the Parliamentary Secretary
to the Treasury).
The number of ministers in the House of Commons is limited by statute (s.2 House
of Commons Disqualification Act 1975) to 95. There are also ministers in the House of
Lords.
One final category which requires brief explanation is that of the parliamentary private
secretaries (PPS). They are not ministers but are expected to vote with the government
in divisions in the House and, despite being unsalaried (or, rather, not drawing a salary
in addition to their MPs’ salary), tend to form part of the so-called ‘payroll vote’. Being
appointed as a PPS is seen as the first ‘unofficial’ step on the ministerial ladder. A useful
summary of the role of a PPS can be found here: www.instituteforgovernment.org.uk/
explainers/parliamentary-private-secretaries
6.3 The civil service

...a servant of the Crown, other than holders of political or judicial officers, who is
employed in a civil capacity and whose remuneration is paid wholly and directly out of
monies voted by Parliament. (Report of the Committee on the Civil Service 1966–68)
The civil service works for the government of the day and provides permanence and
consistency where a government can change overnight after a general election.
It might be helpful to think of the civil service as the engine room of government,
working largely behind the scenes to help ‘the government of the day develop
and implement its policies as effectively as possible’ (www.gov.uk/government/
organisations/civil-service/about). It is often said that key constitutional features of the
civil service are permanence, political neutrality and anonymity, and it is in this regard
that a clear distinction may be observed between government ministers and the civil
servants who work for them.
The Civil Service Code sets out the standards of behaviour expected of all civil servants
to uphold the civil service’s core values, which are integrity, honesty, objectivity and
impartiality. It was only with the enactment of the Constitutional Reform and Governance
Act 2010 that the regulation of the civil service was placed on a statutory footing for the
first time – until this point it had been managed under prerogative powers.
6.4 Political accountability via ministerial responsibility

¢ First watch this short video clip: www.instituteforgovernment.org.uk/
publications/accountability-modern-government-issues
¢ Then read this summary: www.instituteforgovernment.org.uk/

summary-accountability-modern-government-recommendations
These will provide a brief insight into what we mean by accountability, in particular,
political accountability, which lies at the core of this section.
6.4.1 The constitutional conventions of ministerial responsibility

In a parliamentary executive, where each and every member of government is
drawn from the members of the legislature and thus has a seat in one or other of
the chambers of Parliament, the conventions of ministerial responsibility play, a
crucial part in ensuring the accountability of government. They serve to ensure that
government is responsible to the Parliament and thus plays a central role in the
constitution. The Westminster model of governance has received both criticism and
acclaim over the years, with Bagehot referring to the overlap between the legislative
and executive branches as ‘the efficient secret’ of the British constitution, which
can be contrasted with Lord Hailsham’s description of such a system as an ‘elective
dictatorship’. The reality, however, lies somewhere in between. There is indeed a risk
of the executive dominating the Parliament but (as was briefly discussed in relation to
separation of powers) this is limited by both statute and constitutional convention. It
is due, at least in large part, to the relatively successful operation of the constitutional
conventions of ministerial responsibility that the concept of the ‘parliamentary
executive’ within the Westminster model works as well as it does.
As is increasingly the case, these conventions are no longer unwritten but rather
are easily accessible through a reading of the Ministerial Code, which is a document
setting out the standards and conduct expected of ministers (essentially a ‘code
of conduct’ for ministers). It was first published as ‘Questions of Procedure for
Ministers’ in May 1992 and renamed the Ministerial Code in 1997, although its existence,
as a confidential internal circular, had been well known unofficially for the half century
before. The Ministerial Code is reissued with each new administration (that is, change
of government) but modifications are rarely extensive; instead they tend to reflect any
specific circumstances of the time – such as the 2010 version which acknowledged the
constraints of coalition government – and occasionally they incorporate a new phrase
or form of wording which appears to respond to a recent past event. For example,
several of the changes in the 2015 version of the Ministerial Code reflected the fact that
the UK was no longer governed by a coalition. See extracts below for comparison.
Ministerial Code 2010 para.2.1 Ministerial Code 2015 para.2.1

The principle of collective responsibility, The principle of collective responsibility
save where it is explicitly set aside, requires that Ministers should be able
requires that Ministers should be able to express their views frankly in the
to express their views frankly in the expectation that they can argue freely in
expectation that they can argue freely in private while maintaining a united front
private while maintaining a united front when decisions have been reached. This in
when decisions have been reached. This in turn requires that the privacy of opinions
turn requires that the privacy of opinions expressed in Cabinet and Ministerial
expressed in Cabinet and Ministerial Committees, including in correspondence,
Committees, including in correspondence, should be maintained.
should be maintained.
It is important to remember that the Ministerial Code applies to all government

ministers (not just those in Cabinet) and that some parts also apply to parliamentary
private secretaries (non-salaried backbench MPs, discussed above) and to special
advisers.
There are different codes for ministers for the devolved administrations in
Scotland, Wales and Northern Ireland.
It is ultimately the Prime Minster who ‘polices’ the operation of and compliance with
the code and, as with all conventions, the consequences which follow a breach are
political rather than legal. It is sensible to approach your reading of these examples
with the knowledge that resignation (or dismissal) from one’s ministerial positions
is the ultimate sanction rather than necessarily the likely outcome. To help illustrate
the fluidity (or, arguably, the inconsistency) in the operation of these important
conventions, you will need to read and think about a few examples which will be
provided a little later. First, we shall distinguish between collective ministerial
responsibility and individual ministerial responsibility.
6.4.2 Collective ministerial responsibility

There are three related but distinct elements of collective responsibility – these are
summarised in the diagram below.
X
Collective Ministerial
CONFIDENCE
Responsibility
Agreements to differ
(e.g. 1975, 2016)
UNANIMITY Free votes
Coalition Government
CONFIDENTIALITY
Attorney General v. Jonathan Cape Ltd [1976] 1 QB 752
Figure 6.1 Collective ministerial responsibility
Confidence
The government must resign or advise a dissolution of Parliament if the confidence of
the House of Commons is lost. Historically, a defeat in the House of Commons on an
issue of principle or key aspect of policy would be treated as a vote of no confidence
but in recent decades resignation will only be expected following a defeat on a specific
motion of confidence. Such motions are rarely successful; the most recent example in
January 2019 saw the then PM, Theresa May, win a vote of confidence by 325 to 306. For
further detail see: www.bbc.co.uk/news/uk-politics-46899466
Unanimity
The government is united and speaks with one voice on government policy – this
is seen as important as divisions indicate potential weaknesses in a government. It
is important to remember that although most significant decisions will be taken in
Cabinet (or in Cabinet committees) and therefore more junior ministers will not have
been involved in these decisions nor even had an opportunity to disagree, nonetheless
all ministers are still expected to agree with and defend government decisions in
public.
Confidentiality
There is a general principle that discussions (and disagreements) within Cabinet
should remain secret.
The seminal case in this context is Attorney General v Jonathan Cape Ltd [1976] 1 QB 752.
Aside from the different operation of the convention under coalition government it
is occasionally deemed prudent by the Prime Minister of a single-party government
to temporarily suspend the convention. This is described as an ‘agreement to differ’
and enables ministers to speak relatively freely, outside Parliament, on a particular
issue for a strictly limited period of time. The two best examples of this both relate
to referendums on membership of the European Union (in 2016) and the (then)
European Economic Community (in 1975). To allow different views to be aired in
limited situations where it would be particularly difficult to maintain a single united
view demonstrates both a pragmatic approach by the PM but also the flexibility of the
convention.
Free votes
There are also times when MPs are not in any way instructed by their political party
as to how they should vote in a division (i.e. they are not whipped). These tend to
be on what we might describe as matters of conscience, such as abortion.
6.4.3 Individual ministerial responsibility

There are two strands of individual ministerial responsibility. First, a minister’s personal
(or private) conduct and, second, and more important from a broader constitutional
perspective, a minister’s official conduct in the form of their responsibility for a
government department. Individual ministerial responsibility requires ministers to be
constitutionally responsible to Parliament for their department and its decisions and
actions. As explained earlier, again the ultimate sanction or most severe consequence
of a failing in this regard (whether it be an action or inaction by the government
department) would be that a minister is required to resign. More usually they will
be expected (or required) to respond to parliament in a manner which falls short of
resignation. For example, they may ‘inform and explain’, apologise or take remedial
action (to redress the failing).
Distinction between operational and policy matters

In more recent years, and arguably owing to the increased complexity of modern
government, ministers have sought to draw a distinction between operational issues,
which have been largely delegated to officials (especially in the context of quangos
or next steps agencies), and policy matters, for which the minster remains directly
responsible.
The Carltona principle – civil servants and government ministers

The Carltona principle or doctrine, which is very important in recognising how
modern-day government operates, is derived from Carltona Ltd v Commissioners of
Works [1943] 2 All ER 560 (see Le Sueur, Sunkin and Murkens, p.641).


Examination questions in this area often relate to the accountability of the executive
and the mechanisms by which Parliament can scrutinise the policy and actions of
the executive. Any discussion of constitutional conventions in the UK would also
expect you to draw heavily upon ministerial responsibility, as the accountability of
the executive to Parliament is a fundamental part of the UK constitution. An example
might be a question such as ‘Discuss the nature and effectiveness of conventions as a

species of constitutional regulation’. A few examples of recent examination questions
which directly address the conventions of ministerial responsibility are included
below.

Question 1
Discuss the range of individual and collective responsibilities of government
ministers, together with the means by which they are established and enforced.
Question 2
Discuss the view that ‘collective ministerial responsibility’ today means
collective ministerial obedience to the Prime Minister.
Question 3
Discuss the significance of the convention of collective and individual ministerial
responsibility.
7 Parliament
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.1 The House of Commons – composition . . . . . . . . . . . . . . . . . 71
7.2. Key positions in the House of Commons . . . . . . . . . . . . . . . . . 72
7.3 The House of Lords – composition . . . . . . . . . . . . . . . . . . . 73
7.4 House of Lords reform . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.5 Relationship between the House of Commons and the House of Lords . . 75

Introduction
The Queen-in-Parliament is the sovereign law-making body within the United
Kingdom. Formally expressed, the Westminster Parliament thus comprises the
monarch, the House of Lords and the House of Commons. This is a bicameral system,
which means simply that there are two chambers, the Commons and the Lords, and
that generally the decisions in one chamber have to be approved by the other. Thus
the two-chamber system operates as a check and balance within the legislature itself.
The legislatures of most states have two chambers, although the composition and
means of election and/or appointment can vary significantly from one to another.
New Zealand is an example of a single House or chamber legislature: the New Zealand
House of Representatives.
Although we often think first of Parliament as predominately a legislature (or law-

making body), it is important to recognise that it is multi-functional. Both chambers
do have a legislative role (although not equal powers) and each plays a part in
ensuring accountability of the government through scrutiny. Both chambers also
discuss and debate current issues affecting the nation and it is in this context that
Parliament is sometimes described as a forum for debate.
As explained earlier, the nature of a parliamentary executive is that the members of

government (the Prime Minister and other ministers) also hold a seat in one or other
of the Houses of Parliament. This links back to an earlier discussion of separation of
powers in the UK in Chapter 4.
In this chapter we will look at the composition of Parliament and, in particular, issues
around House of Lords reform.
Essential reading
¢ The ‘Parliament Explained’ series of podcasts provides a useful
introduction to various aspects of the workings of Parliament
in a straightforward and engaging manner. This is a good
starting point, especially for those unfamiliar with Westminster:
www.parliament.uk/about/podcasts/parliament-explained-podcast/
Further reading
¢ Brazier, R. ‘A small piece of constitutional history’ (2012) 128(Jul) LQR 315–19.
¢ Beamish, D. ‘No end to hereditary peer by-elections in the House of

Lords?’ (Constitution Unit blog): https://constitution-unit.com/2018/07/24/
no-end-to-hereditary-peer-by-elections-in-the-house-of-lords/#more-6859
¢ Democratic Audit ‘How undemocratic is the House of Lords?’

(2 October 2018): www.democraticaudit.com/2018/10/02/
audit2018-how-undemocratic-is-the-house-of-lords/
¢ House of Lords Constitution Committee ‘Constitutional aspects of the challenge

to the Hunting Act 2004’ (HL Paper 141, 2005–06): www.publications.parliament.
uk/pa/ld200506/ldselect/ldconst/141/141.pdf In reading this, focus on Appendix
3 – provided by Professor Anthony Bradley regarding the judicial decision in
Jackson.
¢ House of Lords Library Briefing ‘House of Lords Act 1999: twenty years on’ (Lords
Library notes LLN-2019-0151, 5 November 2019): https://researchbriefings.
parliament.uk/ResearchBriefing/Summary/LLN-2019-0151
¢ Norton, P. ‘Parliament: the best of times, the worst of times?’ in Jowell, J. and
C. O’Cinneide The changing constitution. (Oxford: Oxford University Press) 9th
edition [ISBN 9780198806363].
¢ Political and Constitutional Reform Committee ‘House of Lords reform:

what next?’ (Ninth Report 2013–14, HC 251, Vols I and II): https://publications.
parliament.uk/pa/cm201314/cmselect/cmpolcon/251/251.pdf
Public law 7 Parliament page 71
¢ R (on the application of Jackson) v Attorney General [2005] UKHL 56.
¢ Sumption, J. Trials of the state. (London: Profile Books, 2019) Chapter II ‘In praise
of politics’.
Key legislation
¢ Parliament Acts 1911 and 1949.
¢ Fixed-term Parliaments Act 2011.
¢ Parliamentary Voting and Constituencies Act 2011.
¢ Early Parliamentary General Election Act 2019.
7.1 The House of Commons – composition

The House Commons is the ‘lower’ but more
powerful chamber in the Westminster Parliament.
It is composed of 650 Members of Parliament
(MPs) who each represent a single constituency – a
X geographically defined electoral area.
MPs are directly elected by the ‘first past the post’† (or †
‘First past the post’: the
simple majority) system every five years on the first simple majority system
Thursday in May according to the provisions of the means that an MP is elected
Fixed-term Parliaments Act 2011. if they have more votes
than any other candidate
The first election under the Fixed-term Parliaments (not more than all others
Act 2011 was on 7 May 2015 and the next was, under combined).
the terms of the legislation, scheduled to be in 2020
but there have been two ‘early’ elections in the
interim. In 2017 one of the exceptions in the Fixed-term Parliaments Act 2011 – that
an early election could be held if ‘two thirds of the whole House’ vote in favour of
a dissolution – was definitively met (with 522 votes for and only 13 against) and an
election was held on 8 June 2017.
Another ‘early’ election was held on 12 December 2019 under rather different
†
circumstances. On this occasion, there were several divisions† in the Commons on Divisions: in the Houses
holding an early election and, under the terms of the Fixed-term Parliaments Act 2011, of Parliament, members’
an insufficient number of MPs voted in favour of this. The general election of December votes (in favour or against a
2019 was brought about instead by the enactment of the Early Parliamentary General motion) are counted during
Election Act 2019. This short statute simply allowed for a general election to be held ‘divisions’. During a division,
on 12 December 2019 and, as with any other Act of Parliament, required only a simple members of the Houses
majority (51 per cent) in the Commons rather than the two-thirds majority required to literally divide into two
separate areas. These are
hold an early election under the provisions of the Fixed-term Parliaments Act 2011.
called the Aye and No lobbies
At the end of each session of Parliament the House is prorogued which means it is in the Commons and the
formally adjourned. Contents and Not Contents
lobbies in the Lords. As they
Referendums are examples of direct democracy. This is rarely practised in modern pass through the lobbies,
day states for predominately practical reasons. Instead, we have adopted a system the members have their
of representative democracy in which the electorate (in the UK there is universal names recorded by clerks
adult suffrage with a few limited exceptions) votes for representatives, in the form and are counted by tellers.
of MPs, to make decisions on its behalf. Once the lobbies are empty
the Speaker (Commons) or
the Lord Speaker (Lords)
Activity 7.1 announces the result of the
Use www.legislation.gov.uk to look up and read the Fixed-term Parliaments Act 2011 division.
and the explanatory notes and then consider the following question. For further detail see: www.
parliament.uk/about/how/
a. What changes were brought about by the enactment of the Fixed-term
business/divisions/
Parliaments Act 2011 and how might these be viewed as significant, both
practically and constitutionally?
The Fixed-term Parliaments Act 2011 contains a requirement that:
The Prime Minister must make arrangements—
(a) for a committee to carry out a review of the operation of this Act and, if
appropriate in consequence of its findings, to make recommendations for the
repeal or amendment of this Act, and
(b) for the publication of the committee’s findings and recommendations (if any).
This Committee had to be established no later than 30 November 2020 and, in line
with these provisions, a joint committee composed of 14 MPs and six members of the
House of Lords was appointed in November 2020 and was due to report on 26 February
2021. You can read more about this committee and its work here: https://committees.
parliament.uk/committee/491/joint-committee-on-the-fixedterm-parliaments-act/
Activity 7.2
Find out (a) which Act of Parliament allowed for the referendum on the alternative
vote electoral system (the result of which was legally binding and thus differs
from the more usual – in the UK – ‘advisory’ referendums), and (b) the result of the
referendum.
7.2. Key positions in the House of Commons

The House of Commons is made up of the governing party, which is the political party
(or, in the case of a coalition government, the political parties) that secures the highest
number of seats at the election, and the opposition parties.
During your reading and studies you will encounter some terms that are likely to
be new to you, for example, in relation to parliamentarians you will hear frequent
references to ‘backbenchers’ and ‘frontbenchers’. The way in which both the
chambers are designed is such that there are rows of benches on each side facing
one another (in an adversarial manner) – on one side sits the government and on the
other (opposite) sit the opposition parties. At the front of these rows of benches sit
the government ministers (on one side) and ‘Her Majesty’s official opposition’, some of
whom are also referred to as the ‘shadow cabinet’ (on the opposite side). Behind these
‘frontbenchers’ sit all the other MPs (known as the ‘backbenchers’).
Note that the House of Commons Disqualification Act 1975 limits the number of
salaried government ministers in the House of Commons to 95 (but this does not
include parliamentary private secretaries).
Activity 7.3
Look up the following positions on either the Parliament website (www.parliament.
uk) or the government website (www.gov.uk) and find out what their roles involve,
whether or not they are a member of government and who the current post
holder is:
a. Leader of the House of Commons
b. Speaker of the House of Commons
c. Chief Whip.
7.3 The House of Lords – composition

The House of Lords is the
‘upper’ or ‘second’ chamber
in the bicameral system of
the Westminster Parliament.
It is the older of the two
chambers of Parliament and
historically membership
was limited to hereditary
peers and representatives of
the Church of England (the
bishops).
Members of the House of Lords are known as peers. The members of this chamber
are not elected by the public – the House of Lords is composed entirely of appointed
members, both hereditary peers and life peers. Most are appointed by the Queen
on the advice of the Prime Minister. Some, however, are non-party political members
recommended by the House of Lords Appointments Commission which is an
independent body established in 2000 ‘to make nominations for membership of
the House of Lords to the independent cross benches and is also responsible for the
vetting for propriety of all nominations to the House, including candidates for party
political membership’.
For further detail on the Commission see: https://lordsappointments.independent.gov.uk/
Unlike the House of Commons, the membership numbers of the House of Lords are not
fixed. There are approximately 800 members. In January 2017 the total membership of
the House was 839. At the time of writing there are 793.
Activity 7.4
Before reading on, look at the composition of the House of Lords and
compare the membership by political party with that of the Commons:
https://members.parliament.uk/parties/Lords
You will have noticed two of the most important differences between the Houses:
the governing party does not usually have a majority in the Lords and, even more
significantly, there is a sizeable group of peers referred to as ‘crossbenchers’, who
do not support any particular political party. These factors combined can be viewed
as enhancing the contribution to independent thought and experience in the
Lords which is viewed as one of its major strengths when contrasted with the more
adversarial and party political focus in the Commons.
Figure 7.1 Composition of the House of Lords

(Image sourced from Parliament website – figures relate to the House of Lords Library
Briefing, ‘House of Lords: Statistics on Size and Composition — November 2019’. For further
detail see: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2019-0161)
7.4 House of Lords reform

Reform of the upper Chamber is often discussed as if it began with the House of Lords
Act 1999, which did indeed bring about a major change as a part of the wide-ranging
constitutional reform programme under the ‘New Labour’ government of 1997 to
2010). In reality, the House has experienced numerous and varied reforms over its long
history.
What follows in this section is a summary of some important reforms brought about
via legislation.
7.4.1 History of Lords reform: summary of key legislation

u Appellate Jurisdiction Act 1876 – allowed for the appointment of Judges of the
House of Lords (known as the Law Lords).
u Parliament Acts 1911 and 1949 – removed the House of Lords legislative veto and
replaced with one of delay. Consolidated the primacy of the House of Commons.
u Life Peerages Act 1958 – allowed for the creation of life peers (both men and, for
the first time, women) who would be entitled to sit and vote in the House of Lords
and whose peerages would expire on their death and not pass on to their heirs or
successors.
u Peerage Act 1963 – enabled hereditary peers to disclaim their peerage for life. Also
permitted peeresses to sit in the House in their own right.
u House of Lords Act 1999 – removed most of the hereditary peers. The ‘Weatherill
amendment’ allowed for two office-holders (the Earl Marshal and the Lord Great
Chamberlain) and 90 elected hereditary peers to continue as members of the
House.
u Constitutional Reform Act 2005 – after the Supreme Court was established in
October 2009, members of the House of Lords Appellate Committee (the Law
Lords) were no longer entitled to sit in the legislature.
u House of Lords Reform Act 2014 – this was a Private Members’ Bill (which had the
benefit of government support). It allows members of the House of Lords to retire
or resign permanently. It also provides that members who did not attend and
those convicted of serious offences should cease to be members of the House of
Lords.
7.4.2 Future reforms?

Following the obvious lack of consensus on the extensive reform proposed in the draft
House of Lords Reform Bill in 2012–13, which was intended to introduce a much larger
elected element into the House of Lords by 2025, the Bill was subsequently withdrawn.
The Joint Committee, which was created to scrutinise this Draft Bill, also failed to reach
agreement. The appetite for further large-scale reform of the Lords subsequently
waned and there was recognition that little consensus could be found.
Instead, more modest reforms came about both via the House of Lords Reform
Act 2014 and, more recently, through proposals stemming from the Lord Speaker’s
Committee on the size of the House. These reforms comprised an attempt to reduce
the size of the Chamber and have had some success in achieving this in a more
pragmatic and incremental manner.
Further information about the reform proposals and various reports published by
the Lord Speaker’s Committee can be found here: www.parliament.uk/business/
committees/committees-a-z/other-committees/size-of-house-committee/
Activity 7.5
Think about what advantages an unelected chamber adds to scrutiny of
government.
7.5 Relationship between the House of Commons and the

House of Lords
It is interesting, and indeed reflects the nature of the UK’s constitution more generally,
that the relationship between the two Houses in the bicameral Westminster
Parliament is governed by both law and convention.
7.5.1 Parliament Acts 1911 and 1949

The Parliament Act of 1911 was passed via the usual parliamentary procedure (although
the consent of the House of Lords to this legislation was neither a simple matter nor
without controversy). The most important effect of this statute was that it removed
the House of Lords power of veto over primary legislation and replaced it with one of
delay. Under the terms of the Parliament Act 1911, any other Public Bill, except those
extending the life of a Parliament, could become an Act of Parliament without the
consent of the Lords if passed by the Commons in three successive sessions with two
years between first, second reading and final passing in the Commons, and if sent up
to the Lords at least one month before the end of each of the three sessions.
This meant that in certain (limited) circumstances the House of Lords could delay
legislation for two years but after this it could be sent for Royal Assent without the
agreement of the Lords.
The maximum duration of a Parliament was also reduced from seven years to five (but
this has subsequently been superseded by the effect of the Fixed-term Parliaments Act
2011).
The Parliament Act of 1949 amended the 1911 Act and further reduced the Lords’
ability to delay legislation in respect of Public Bills, other than money bills, from
three sessions to two, and reduced the period of time between the first, second
reading and final passing in the Commons from two years to one. This was particularly
controversial as after the Lords rejected the Parliament Bill at second reading, it
subsequently became law in 1949 under the terms of the Parliament Act 1911. This was
only the third Bill to be passed in this way and, given its constitutional significance, led
to much consternation. Any questions, however, regarding the validity or position of
the Parliament Act 1949 as primary legislation were laid to rest by the House of Lords in
Jackson v Attorney General [2005] UKHL 56.
Activity 7.6
After doing some research (via the Parliament website), make a list of the
legislation which has been passed under the Parliament Act 1949 procedure.
For further detail see: House of Commons Library Briefing Paper ‘The Parliament
Acts’ (No. 00675, 25 February 2016): https://researchbriefings.parliament.uk/
7.5.2 Salisbury-Addison Convention

The Salisbury-Addison Doctrine or Convention was established through an agreement
in 1945 between Viscount Addison, the Leader of the House of Lords, and Viscount
Cranborne (the fifth Marquess of Salisbury from 1947), Leader of the Conservative
Opposition in the Lords. It was of particular importance during the welfare reforms of
the post-war Labour government of 1945–51.
This Convention means that, in practice, the House of Lords does not try to vote down
at second or third reading, a government Bill mentioned in an election manifesto†. †
A manifesto is a publication
issued by a political party
For further detail see: House of Commons Library Briefing Paper ‘Conventions on
before a general election.
relationship between the House of Commons and the House of Lords’ (No. 5996, 7
It contains the set of policies
January 2016): https://researchbriefings.parliament.uk/ResearchBriefing/Summary/
that the party stands
SN05996 for and would wish to
implement if elected to govern
(source: www.parliament.uk).


In terms of specific questions in relation to Parliament, you will often see overlap
with the matters discussed in other chapters, including, in particular, the scrutiny by
Parliament of the executive (see Chapter 6) and the legislative process (Chapter 8). A
few examples are included below.

Question 1
Discuss the various ways in which Parliament scrutinises the government, and
critically assess the effectiveness of Parliament’s role in the legislative process.
Question 2
Discuss the legislative process of the UK Parliament, comparing and
distinguishing between government Bills and Private Members’ Bills.
Question 3
‘If the House of Lords did not exist, it would have to be invented.’
Question 4
Discuss the composition and powers of the House of Lords, and make reform
proposals.
Question 5
Compare and contrast the powers and functions of the two Houses of
Parliament.
8 Legislation
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.1 Primary legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8.2 Overview of the legislative process . . . . . . . . . . . . . . . . . . . 79
8.3 Framework Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.4 Multi-topic Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.5 Delegated, secondary or subordinate legislation . . . . . . . . . . . . . 82

Introduction
In contemporary society much of our everyday conduct is regulated by law and the
majority of laws are to be found in written form. Some will be Acts of Parliament or
statutes, which are the main type of primary legislation in the UK; others will take
the form of statutory instruments (SIs) and other types of secondary legislation. On
average, between 30 and 40 new Acts of Parliament are made each year but there are
approximately a hundred times more pieces of delegated legislation passed.
Laws are drafted to fulfil a variety of purposes, including the implementation, by

government, of promised policy, such as a commitment in a political party electoral
manifesto or set out in the Queen’s Speech. Legislation will also often be needed in
order to implement external or international law commitments and sometimes it
may that a law must be drafted quickly in order to respond to a particular issue. An
interesting example of this is the Parliamentary Standards Act 2009, which arose as
a result of the MP expenses scandal. A more recent example is that of the Terrorist
Offenders (Restriction of Early Release) Act 2020 which completed its accelerated
parliamentary passage in two weeks.
Queen’s Speech: at the start of each parliamentary session at the State Opening of
Parliament, the Queen delivers a speech outlining the government’s forthcoming
legislative programme.
This chapter will introduce legislation in its different forms. We will also consider the
process by which primary legislation is drafted and the type of scrutiny (both pre-
legislative and post-legislative) to which it is subjected.
On the VLE, we look at the Succession to the Crown Act 2013 as a ‘case study’ of the
legislative process. Through a series of tasks/activities related to this you will begin to
develop an understanding of how and why legislation is made.
A few questions to keep in mind as you work through this topic are:
u What is ‘primary’ legislation?
u Who makes it and why?
u Who can have influence on the law?
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 12 ‘Introduction to legislative functions’,
Chapter 13 ‘Primary legislation’, Chapter 14 ‘Delegated legislation’ and Chapter
15 ‘Case study: constitutionally contested legislation’.
Essential reading
¢ Succession to the Crown Act 2013 and Explanatory Notes – for these, please see
the activities on the VLE.
Further reading
¢ A helpful summary of the legislative process in an interactive/slide show format
can be accessed via the parliamentary website at: www.parliament.uk/about/
how/laws/passage-bill/
¢ The Cabinet Office has produced some accessible and straightforward

summaries of the law-making process:
u www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament
u www.gov.uk/government/publications/guide-to-making-legislation
¢ Gover, D. and M. Russell ‘Parliament and legislation: perhaps Westminster is

more powerful than you think?’ (Constitution Unit blog, 15 September 2015):
http://constitution-unit.com/2015/09/15/parliament-and-legislation-perhaps-
westminster-is-more-powerful-than-you-think/
Public law 8 Legislation page 79
¢ House of Commons Library Briefing Paper ‘Statutory Instruments’ (No. 06509,

15 December 2016): https://researchbriefings.parliament.uk/ResearchBriefing/
Summary/SN06509
¢ Korris, M. ‘Standing up for scrutiny: How and why Parliament should make
better law’ (2011) 64 Parliamentary Affairs 564.
¢ The Law Commission ‘Post-legislative scrutiny’ (Law Comm No. 302, 6945, 2006).
¢ Russell, M., D. Gover and K. Wollter ‘Does the executive dominate the
Westminster legislative process?: Six reasons for doubt’ (2015) Parliamentary
Affairs 1. Note that this is a more detailed paper on the issues discussed in the
blog post by the same authors.
8.1 Primary legislation

First, a reminder that in the context of primary legislation we mean the Acts or statutes
made by the Westminster Parliament (formally ‘the Queen in Parliament’) which,
because of the principle of parliamentary supremacy, are the highest form of law
within the United Kingdom. Remember that, although Parliament is a multi-functional
body, much of its time (in both Houses) is taken up with the passage of legislation.
A useful (and brief) introduction to the legislative process can be found on the
Parliament website here: www.parliament.uk/about/podcasts/theworkofparliament/
house-of-commons-chamber-film/making-laws/
Most Bills, which are draft legislation, are introduced by the government; however,
they may be introduced by individual members of the House of Commons or House of
Lords in which case they are known as Private Members’ Bills. Exceptionally, a Bill can
be introduced by a private individual or organisation.
The government Bills are drafted by the specialist government lawyers who work in
the Office of Parliamentary Counsel. They ‘work closely with departments to translate
policy into clear, effective and readable law’. For further detail see: www.gov.uk/
government/organisations/office-of-the-parliamentary-counsel/about
There are also different categories of Bills, of which the vast majority are Public Bills,
which change the law as it applies to the general population. The others are Private
Bills, which follow a special procedure and are specific to an organisation, such as a
local authority, to change the law in its area or in a manner which affects it, or Hybrid
Bills that mix the characteristics of Public and Private Bills.
Activity 8.1
Use the Parliament website to find an explanation for and an example of a Hybrid
Bill.
Bills may be introduced into either House but the annual Finance Bill (which gives
effect to the Budget), along with most other financial legislation, always begins in the
Commons. Other high-profile and contentious legislation is usually also introduced in
the Commons.
Bills go through a number of stages in each House before passing to the other
Chamber to work through the same stages. The final stage is the Royal Assent and it is
at this point that a Bill (draft law) becomes an Act (law).
8.2 Overview of the legislative process
8.2.1 Pre-legislative scrutiny

There is wide agreement that effective pre-legislative consultation and pre-legislative
scrutiny make positive and constructive contributions to the law-making process. In
recent years, more legislation has also been published in the form of Draft Bills.
Green Papers
These are consultation documents produced by the government which contain
proposals for future government policy for the purpose of debate and discussion. The
aim is to allow people (both inside and outside Parliament) to debate the subject and
give feedback on suggestions.
White Papers
A White Paper will generally contain more in-depth proposals and will often be the
basis for a Bill to be put before Parliament. A good example is the (now infamous)
‘Rights Brought Home’ White Paper of October 1997 (Cm 3782) which preceded the
Human Rights Act 1998.
Draft Bills
Draft Bills are published by government in order to facilitate consultation and pre-
legislative scrutiny. They are usually examined by either a Select Committee or a
Joint Committee. One high-profile example was the Joint Committee established to
examine the Draft House of Lords Reform Bill 2011–12. A Joint Committee, as its name
suggests, comprises members from both the House of Commons and the House of
Lords.
Activity 8.2
Look up which Draft Bills have been published during the current parliamentary
session.
8.2.2 The passage of a Bill through Parliament

The stages which a Bill goes through in Parliament are similar in both chambers, with
one particularly noteworthy difference at committee stage.
For more information on the discussion in this section, see ‘Passage of a Bill’:
www.parliament.uk/about/how/laws/passage-bill/
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First reading
At this stage the Bill is formally presented in Parliament and the short title is read out.
There is no debate or discussion.
Second reading
The second reading is the first opportunity for debate on the main principles of the Bill
in Parliament. The second reading debate is opened by the government minister (or
MP or peer in the case of Private Members’ Bills) from the department responsible for
the Bill.
Committee stage
This where practice differs between the House of Commons and House of Lords.
Public Bill committees (House of Commons)

In the Commons a Public Bill committee (until 2006 these were called Standing
Committees) of around 20 members is set up to consider the details of a particular Bill
and only last for the duration of the Bill concerned. These committees are named after
the relevant Bill (e.g. the Health Bill Committee), and their composition reflects the
size of the political parties in the House.
All Bills, other than money Bills, are automatically sent to a Public Bill committee after
their second reading unless they are committed to a committee of the Whole House.
Committee of the Whole House

In the House of Commons, since 1945 a convention has developed that Bills which are
deemed to be of ‘first class constitutional importance’ have their committee stage
on the floor of the House. This is also known as a Committee of the Whole House as it
takes place in the main Chamber and all MPs may contribute to the debate. Examples
of legislation which has been treated in this manner are the Succession to the Crown
Act 2013 and the European Union (Withdrawal) Act 2018.
In the House of Lords, all Bills have their committee stage on the floor of the House
rather than in a committee room. This arguably allows for greater scrutiny by a wider
and more diverse group of people.
For further detail on this see the House of Commons Library Parliamentary Information
List, ‘Bills whose Commons committee stage has been taken in Committee of the
Whole House’ (SN/PC/05435, 2 July 2013): https://researchbriefings.parliament.uk/
Report stage
This stage involves detailed consideration of the Bill, as amended at the committee
stage, and discussion of further amendments. This is usually followed immediately by
debate on the Bill’s third reading.
Third reading
In the Commons this is the final chance for debate on the content of the Bill,
but amendments cannot be made at this stage. In the House of Lords, however,
amendments can be made ‘provided the issue has not been fully considered and
voted on during either committee or report stage’.
After the third reading, the Bill moves across to the other chamber and goes through
largely the same process, subject to the differences outlined above.
Finally, each House considers the other’s amendments. If both Houses agree on the
amendments and the exact wording of the Bill, it passes for Royal Assent. If not, a Bill
may go back and forth (described rather aptly as ‘ping pong’) between the Houses
until both reach agreement.
Occasionally, where agreement cannot be reached, the Bill will fall. As we have seen,
in certain circumstances the House of Commons can use the Parliament Acts 1911 and
1949 to pass the Bill without the consent of the House of Lords (as discussed in the
previous chapter).
Royal Assent
The final stage of the legislative process is the exercise of the prerogative power of the
monarch to grant Royal Assent. As has been discussed elsewhere, by constitutional
convention, Royal Assent will not be withheld if the legislation has passed both Houses
of Parliament.
8.2.3 Post-legislative scrutiny

According to the UK Parliament’s definition, post-legislative scrutiny is an inquiry by
a parliamentary select committee into how a new law has worked in practice since it
came into force.
Activity 8.3
Look at the Fixed-term Parliaments Act 2011 s.7(4) and (6). Such provisions are
referred to as ‘sunset clauses’ – research what this term means.
Activity 8.4
Read the House of Commons Library Briefing Paper ‘Post-legislative scrutiny’ (23
May 2013) at: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/
SN05232 and answer the following questions.
a. Do you think there is currently sufficient post-legislative scrutiny?
b. At what stage after enactment of legislation do you think it suitable to have

post-legislative scrutiny (i.e. how many years after an Act comes into force)?
8.3 Framework Bills

Often, statutes contain only a broad framework of their purpose and more complex
content is added later by the relevant government department through delegated
legislation.
Although practically expedient and efficient, such a method of law-making necessarily

receives significantly less scrutiny than a more detailed piece of primary legislation.
This has led to criticism, including from the House of Lords Constitution Committee. A
recent example of legislation which provided extensive delegated powers to ministers
is the European Union (Withdrawal) Act 2018.
8.4 Multi-topic Bills

Large multi-topic Bills are sometimes referred to as ‘Christmas tree’ or ‘omnibus’ Bills
as they are used by government departments to ‘hang’ or ‘attach’ a wide range of
topics or policy areas (much as one would hang baubles on a Christmas tree). One
prominent example of legislation which might be described in this manner is the
Localism Act 2011.
There are a variety of reasons why such broad-ranging legislation can prove
problematic, not least the difficulty in adequately scrutinising such a large Bill. Their
breadth can also throw up unexpected difficulties for government in that, as explained
by a former First Parliamentary Counsel, ‘the scope is broad and amendments can
come in on any subject…late in a bill’s passage and that is quite often an area where
mistakes creep in’.
8.5 Delegated, secondary or subordinate legislation

Delegated legislation, also known as subordinate or secondary legislation, is extremely
important in a practical sense. As mentioned above, there are several thousand pieces
of delegated legislation made each year compared with a relatively small number of
Acts of Parliament. It is ‘delegated’ in the sense that the power to make legislation has
been delegated by Parliament to a person or body other than Parliament, most often
to government ministers. Normally, the secondary legislation is intended to ‘flesh
out’ or fill in the detail in relation to a ‘framework’ Act. The power to make delegated
legislation is to be found in what is referred to as a ‘parent’ or ‘enabling’ Act – that is,
a statute which contains an explicit provision allowing for the making of delegated
legislation. As can be observed from the examples below, delegated legislation
enables the government to make changes to a law without passing a new Act of
Parliament. Other bodies may also make delegated legislation, for example, local
authorities have the power to make by-laws.
Activity 8.5
Use www.legislation.gov.uk to answer the following questions:
a. Look up the European Union (Withdrawal Agreement) Act 2020
(Commencement No. 1) Regulations 2020 and identify the enabling Act.
b. What did the Marriage (Same Sex Couples) and Civil Partnership (Opposite Sex
Couples) (Northern Ireland) Regulations 2019 do? What was the enabling Act?
Remedial orders, made under s.10 of the Human Rights Act 1998, are also a form of
delegated legislation.
8.5.1 Statutory instruments

Statutory instruments (SIs) are usually drafted by the legal office of the relevant
government department and often are consulted upon. SIs are the main type of
delegated legislation in the UK, with approximately 3,000 SIs being issued each year.
About two-thirds of SIs are not actively considered before Parliament and simply
become law on a specified date in the future.
8.5.2 Parliamentary scrutiny of delegated legislation

SIs are subject to either the affirmative procedure or the ‘negative procedure’. The
former refers to statutory instruments which must be approved by both the House
of Commons and the House of Lords in order to become law, whereas in the latter
procedure SIs automatically become law unless there is an objection from either
House.
One key point to be made in relation to SIs and other delegated legislation is
that, while it is absolutely necessary for the effective and efficient functioning of
government, there are potential concerns about the lack of adequate scrutiny. This is
exacerbated in the context of Henry VIII clauses, discussed below.
8.5.3 Henry VIII clauses
According to the Parliament Glossary:

‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal
provisions in an Act of Parliament using secondary legislation, which is subject
to varying degrees of parliamentary scrutiny.
The Lords Delegated Powers and Regulatory Reform Committee pays particular
attention to any proposal in a bill to use a Henry VIII clause because of the way it
shifts power to the executive.
The expression is a reference to King Henry VIII’s supposed preference for
legislating directly by proclamation rather than through Parliament.
A Henry VIII clause enables a minister to make delegated legislation to amend

provisions in an Act of Parliament in order to remove an incompatibility (s.10(2) and
s.10(3)). An example is s.10 of the Human Rights Act 1998.
Section 8 of the European Union (Withdrawal) Act 2018 grants to the executive
what might be considered very broad powers. The executive is empowered to make
regulations to deal with deficiencies in retained EU law that are likely to arise following
Brexit. This is another example of a Henry VIII clause as it empowers the minister to
make regulations which modify, amend or repeal primary legislation.

As always, before moving on to the next chapter it is important to ensure that you
have begun to develop a solid understanding of the processes to which you have
been introduced in this chapter. You will have seen how, in order to understand the
legislative process, it is crucial to have good knowledge of the composition of the
institutions to which you have been introduced in the previous chapters in this section
of the guide, most obviously Parliament itself as the primary law-making body in the
UK.

An example of a past examination question can be found below, followed by some
guidance as to what the examiners would expect to see in an answer to this.
Sample examination question

Give an account of the law-making process in the UK Parliament, distinguishing
between primary and secondary legislation and evaluate the relative functions and
powers of the two Houses.
Feedback to sample examination question

It can be seen from this question that the institution of Parliament needs to be
considered holistically in terms of composition, powers and law-making. In order to
adequately address this question, you need to understand the processes by which
both primary and secondary legislation are made. This needs to be explained and
discussed in an analytical rather than merely descriptive manner – for example,
there is no need to list the stages of the parliamentary process (although you may
choose to discuss them all). Better answers will demonstrate a good awareness of
the relationship between the two chambers and where their roles differ in respect
of law-making. In your answer to this question, you may also be able to bring in
some analysis of the adequacy of scrutiny of legislation.
9 The judiciary
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 Judicial independence . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.2 Judicial accountability . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.3 Judicial impartiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.4 Judicial appointments . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.5 Judicial diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Introduction
We now turn to examining the third branch of government, the judiciary. Where the
executive and legislature share personnel and functions, we will see that the judicial
branch is largely independent of the other organs of government. Such independence
is viewed as a crucial factor in ensuring the rule of law is upheld and public confidence
in the judiciary.
Along with this institutional or ‘structural’ independence, it is also important that the
judiciary and individual judges are impartial.
From the perspective of this module guide, it will generally be the higher or senior
courts (High Court, Court of Appeal and the UK Supreme Court) with which we are
concerned. It is most likely that judicial decisions of constitutional significance will
ultimately reach these courts. Bear in mind that, while the highest court in the United
Kingdom has, since 2009, been named the Supreme Court, it is not a constitutional
court and its powers and the power balance between the institutions of government
remain largely as they were when the highest court was the House of Lords.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 17 ‘The judiciary’.
Further reading
¢ Finnis, J. ‘Judicial power and the balance of our constitution’ (Policy Exchange,
Judicial Power Project, 2018): http://judicialpowerproject.org.uk/wp-content/
uploads/2018/01/Judicial-Power-and-the-Balance-of-Our-Constitution.pdf
¢ Jones, B.C. ‘The widely ignored and underdeveloped problem with

judicial power’ (UK Constitutional Law blog, 25 February 2020): https://
ukconstitutionallaw.org/2020/02/25/brian-christopher-jones-the-widely-
ignored-and-underdeveloped-problem-with-judicial-power/
¢ The Rt Hon Lord Judge ‘Constitutional change: unfinished business’

(4 December 2013): www.ucl.ac.uk/constitution-unit/news/2013/dec/
video-lord-judge-constitutional-change-unfinished-business
¢ Le Sueur, A. ‘Developing mechanisms for judicial accountability in the UK’ (2004)

24 Legal Studies 73.
¢ Lord Phillips ‘Judicial independence and accountability: A view from the

Supreme Court’ (8 February 2011): www.supremecourt.uk/docs/speech_110208.
pdf
Public law 9 The judiciary page 87
9.1 Judicial independence

As explained in The Cabinet manual, ‘[I]t is a long-established constitutional principle
that the judiciary is independent of both the government of the day and Parliament so
as to ensure the even-handed administration of justice’. The structural independence
of the senior judiciary in the UK is, however, a surprisingly recent development. It came
about with the enactment of the Constitutional Reform Act 2005, which significantly
reformed the position of Lord Chancellor and created a new, institutionally separate
Supreme Court to replace the Appellate Committee of the House of Lords (the Law
Lords).
Activity 9.1
Watch this short video in which Lord Mance (a Supreme Court Justice) discusses
some of the key changes outlined above: www.parliament.uk/about/living-heritage/
evolutionofparliament/houseoflords/judicialrole/interview
a. What did he say it would mean in terms of the identity of the Supreme Court?
b. What was the former name of the building in which the Supreme Court is
housed?
The Lord Chief Justice, Lord Burnett, discussed the recent controversy in which
several members of Parliament were referred to the Parliamentary Commissioner for
Standards after they had written (on House of Commons writing paper) to judges in
advance of a decision on whether to publish character references supporting a former
Parliamentary colleague who had since been jailed. In a press conference in December
2020, the Lord Chief Justice explained:
There needs to be sensitivity displayed by all branches of the constitution, so that is the
legislature, the executive and the judiciary as to the proper sphere of the others. I am
pretty confident that judges understand where the boundaries lie but I am less confident
at the moment that all parliamentarians have an instinctive understanding of where those
boundaries lie, and one of the things that I am concerned to think about at the moment is
how we, the Judiciary, can help to ensure that the understanding is deeper.
9.1.1 ‘Guarantee of continued judicial independence’

Judicial independence is now enshrined in statute, namely s.3(1) of the Constitutional
Reform Act 2005. It imposes a duty on 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’ to ‘uphold the continued independence of the judiciary’.
Similar provisions exist in relation to the judiciary in Scotland and Northern Ireland.
Activity 9.2
Read the UCL Constitution Unit Seminar Note ‘Judicial independence and the
Supreme Court’ at: www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/
seminar-note-judicial-independence-and-the-supreme-court.pdf
a. Why did the Scottish Government argue that the creation of the Supreme Court
has led to the court having greater control over the Scottish legal system?
b. What did the Scottish Government threaten to do as a response to this? Do you

think this threat was appropriate or legitimate?
9.2 Judicial accountability

A difficult question arises when we consider the manner in which judges are held
accountable. It is obvious that judges cannot be held accountable in the same manner
as elected politicians or a government. However, given their increasingly significant
role in developing the law and holding positions of power, there is a need for
accountability.
Vernon Bogdanor has attempted to address this by distinguishing between two

different types of accountability to Parliament – ‘sacrificial accountability’ (which
applies to government ministers) and ‘explanatory accountability’ (which could
apply to judges). Bogdanor suggests that the latter is not incompatible with judicial
independence. Security of tenure protects the judges from ‘sacrificial’ accountability
(bar the exceptional course of removal from office) but there is an increasingly strong
argument for greater ‘explanatory’ accountability.
In one sense, judges have to publicly provide reasons (and generally sound ones) for
the decisions they make – this much is clear from the publication of judgments, but
this is perhaps not what one thinks of when referring to ‘accountability’. There is also
(for most courts) the system of appeals whereby decisions and the judicial reasoning
is analysed by a higher court.
As explained by Jones, ‘[T]he challenge…is how to preserve judicial independence

while implementing reasonable mechanisms of accountability.’
Activity 9.3
Read about the relationship between the judges and Parliament here:
www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-
constitution/jud-acc-ind/judges-and-parliament/
a. Can a judge be removed from office by Parliament?
b. What matters are judges unable to discuss in the context of giving evidence to
parliamentary committees?
9.2.1 Criticism of judges

Despite the existence of constitutional conventions that MPs should not comment
upon the activities of particular judges, or judges generally, unless there is a debate on
a substantive motion to request the judge’s dismissal, it seems that there has been a
shift in recent decades towards increased criticism of judges and judicial decisions by
government ministers and also by the media. This has arguably occurred, in part, as a
result of the more controversial areas into which the judges have been drawn, first as
a result of decisions made in relation to the Human Rights Act 1998 and, more recently,
with the various judicial decisions around Brexit.
For further detail on this see the following:
‘Mini case study: The Miller case – independence of the judiciary; Duties of the Lord
Chancellor and freedom of the media’ in Le Sueur, Sunkin and Murkens, Chapter 17.
Heydon, J.D. ‘Does political criticism of judges damage judicial independence?’

(Policy Exchange, Judicial Power Project, February 2018): https://policyexchange.org.
uk/wp-content/uploads/2018/03/Does-Political-Criticism-of-Judges-Damage-Judicial-
Independence.pdf
9.3 Judicial impartiality

Stephen Sedley, a former senior judge, explained the difference between impartiality
and independence as follows:
Impartiality is a state of mind – in the vocabulary of the judicial oath, the absence of
affection or ill-will. Independence is a state of being – freedom from what the judicial oath
calls fear or favour.
It is said that ‘justice should not only be done, but should manifestly and undoubtedly be
seen to be done’ (Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy [1923] All ER Rep
233). This underpins the importance of ensuring judges are impartial and free from bias.
We will return to the notion of bias in Chapter 10. Two interesting examples can be
included here to illustrate the importance of demonstrable impartiality on the part of
individual judges.
Public law 9 The judiciary page 89
First, R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet
Ugarte (No. 2) [1999] 1 LRC 1 which related to the extradition of the former Chilean
dictator, Pinochet, and in which one of the sitting judges, Lord Hoffmann, had close
links to an intervening party in the case. Hoffmann was the chairman and a director
of a charity directly linked with Amnesty International and Amnesty had been an
intervening party. The case had to be re-heard by another panel of judges, as Hoffmann
had failed to disclose his links with Amnesty.
For additional reading on this see: Rozenberg, J. ‘How Pinochet tainted Hoffmann’s
brilliant career’ The Law Society Gazette (3 April 2009): www.lawgazette.co.uk/50436.
article
The second example relates to a situation that, since the creation of the Supreme
Court, will no longer arise. However, it did in 2004, only a year prior to the
Constitutional Reform Act 2005, in relation to a highly controversial and political Act
of Parliament. This was the Hunting Act 2004 and the subsequent case of Jackson, in
which Lords Scott and Hoffmann were unable to sit as judges. This was because, in
their capacity as members of the House of Lords legislative chamber (as Law Lords),
they had voted in favour of the Hunting Bill and therefore could not be considered
to be appropriately impartial in relation to the issues raised in Jackson. As can be
observed from this example, while constitutional conventions discouraged the
Law Lords from participating and voting in debates on contentious matters before
Parliament, no law precluded them from doing so.
More recently, an extrajudicial speech by Lady Hale in November 2016, preceding the
Supreme Court hearing of the case on triggering Article 50 to bring about Brexit (Miller
v Secretary of State for Exiting the European Union [2017] UKSC 5) led to controversy in
some quarters.
9.4 Judicial appointments

The Constitutional Reform Act 2005 established an independent Judicial
Appointments Commission (JAC) which is responsible for selecting candidates for high
judicial office. This was a significant change to the previous system where judges were
appointed on the recommendation of the Lord Chancellor, a government minister.
Now the JAC makes recommendations to the Lord Chancellor, who retains a limited
role in the appointments process. The justification for the retention of this limited role
is that the Secretary of State for Justice is accountable to Parliament. It also retains the
constitutional convention that the Queen (who officially makes the appointments)
acts on the advice of her ministers.
For further detail see: https://judicialappointments.gov.uk/about-the-jac/
Activity 9.4
Read the ‘Procedure for appointing a Justice of the Supreme Court of the United
Kingdom’ at: www.supremecourt.uk/about/appointments-of-justices.html
9.4.1 Judicial Appointments and Conduct Ombudsman

The Judicial Appointments and Conduct Ombudsman (JACO) works with the Ministry of
Justice and has a dual role: to investigate the handling of complaints about the judicial
appointments process and to investigate the handling of complaints involving judicial
discipline or conduct.
For further detail see: www.gov.uk/government/organisations/

judicial-appointments-and-conduct-ombudsman
9.5 Judicial diversity

The JAC has a statutory duty (under the Constitutional Reform Act 2005) to:
u select candidates solely on merit
u select only people of good character
u have regard to the need to encourage diversity in the range of persons available for
judicial selection.
Activity 9.5
Read the diversity update provided on the JAC website and identify what key
developments have recently occurred: www.judicialappointments.gov.uk/news/
jac-publishes-latest-diversity-update
Activity 9.6
Read the message from the Lord Chief Justice and the Senior President
of Tribunals on the publication of the 2019 judicial diversity statistics:
www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/
judicial-diversity-statistics-2019/
Do you think the judiciary is becoming more diverse?

understanding of the fundamental idea, principles and institutions to which you
have been introduced both in this chapter and more widely throughout this section
(‘Institutions’) of the guide.

The judiciary as an institution can arise in a number of questions, for example in
relation to the constitutional structure of the UK but particularly in relation to the
principle of the rule of law and that of a partial separation of powers. As mentioned
earlier, these could be assessed in a combined manner, for example, the relationship
between the rule of law and an independent judiciary.
Part III Administrative law (legal accountability via
judicial review)
10 Judicial review
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.1 Defining judicial review . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.2 The nature and scope of judicial review . . . . . . . . . . . . . . . . . 95
10.3 Amenability to judicial review . . . . . . . . . . . . . . . . . . . . . . 96
10.4 Procedural requirements . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.5 Grounds of review . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
10.6 Independent Review of Administrative Law . . . . . . . . . . . . . . . 106
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . 106

Introduction
The process of judicial review should be viewed in the wider context of administrative
law – it is one mechanism, albeit a very important one, which helps to ensure the
lawfulness of the decisions and actions of public bodies. In the words of De Smith,
Woolf and Jowell, ‘judicial review should be seen in the context of the general
administrative system where different mechanisms are employed to hold public
bodies accountable.’
¢ Lord Woolf, J. Jowell and A. Le Sueur De Smith, Woolf and Jowell’s

principles of judicial review. (London: Sweet & Maxwell, 2019) 8th edition
[ISBN 9780414066298].
These mechanisms include extrajudicial means such as ombudsmen and inquiries,

along with legal controls such as tribunals and judicial review. Wade and Forsyth
described administrative law as ‘the body of general principles which govern the
exercise of powers and duties by public authorities’.
¢ Wade, H.W.R. and C.E. Forsyth Administrative law. (Oxford: Oxford University
Press, 2014) 11th edition [ISBN 9780199683703] p.5.
In this section we will look at both the purpose and procedure of a claim for judicial
review (usually referred to simply as judicial review) through which the courts exercise
their supervisory jurisdiction over the executive.
Judicial review is a large and important topic in public law and this chapter will
attempt to introduce the various elements to you, including briefly examining its
constitutional role and position, the nature and scope of review and, particularly, what
are often referred to as ‘filter’ mechanisms or the procedural requirements, such as
the need for an applicant bringing a claim for judicial review to have ‘standing’. It will
also introduce the grounds for judicial review, which are illegality, irrationality and
procedural impropriety.
It is worth noting that remedies in judicial review are discretionary and therefore may
not be awarded even if a claim for judicial review is successful.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 19 ‘Judicial review’.
Further reading
¢ English, R. ‘Judicial review is not “politics by another means”’ (UK Human
Rights blog, 9 March 2019): https://ukhumanrightsblog.com/2019/03/09/
judicial-review-is-not-politics-by-another-means/#more-97623
¢ Lord Mance ‘Justiciability’ (40th Annual FA Mann Lecture at Middle Temple Hall,
London, 27 November 2017): www.supremecourt.uk/docs/speech-171127.pdf An
interesting speech by a senior judge with a focus on justiciability in the area of
foreign relations conducted under the Crown prerogative.
¢ The Policy Exchange’s Judicial Power Project is worth browsing. There are
lots of interesting contributions from scholars with a diverse range of views:
http://judicialpowerproject.org.uk/
¢ Public Law Project ‘An introduction to judicial review’ (2018): https://

publiclawproject.org.uk/wp-content/uploads/2019/02/Intro-to-JR-Guide-1.pdf
A selection of interesting case law

¢ R (Corner House Research) v Serious Fraud Office [2008] UKHL 60 [41].
¢ R (on the application of Wilson and Others) v Prime Minister [2019] EWCA Civ 304.
¢ R (on the application of Privacy International) v Investigatory Powers Tribunal and

Others [2019] UKSC 22 and related blog post: http://ukscblog.com/case-comment-
r-on-the-application-of-privacy-international-v-investigatory-powers-tribunal-
and-others-2019-uksc-22/
Public law 10 Judicial review page 95
¢ Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller No. 1).
¢ R (Miller) v Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41
(Miller No. 2).
¢ There have been a large number of academic commentaries on Miller No. 1 and
the surrounding issues, so the following resource might prove to be useful:
http://researchbriefings.files.parliament.uk/documents/CBP-7702/CBP-7702.pdf
10.1 Defining judicial review

The government have provided some helpful definitions in recent years, which have
described judicial review as:
…a process by which individuals, businesses and other affected parties can challenge
the lawfulness of decisions, actions or inactions of the Executive, including those of
Government Ministers, local authorities, other public bodies and those exercising public
functions.
(Explanatory Notes, Criminal Justice and Courts Act 2015)
…a critical check on the power of the state, providing an effective mechanism for
challenging the decisions, acts or omissions of public bodies to ensure that they are
lawful.
(Ministry of Justice, Judicial Review: Proposals for further reform, 2013, Cm 8703, para.1)
A good starting point for this topic is to think of judicial review as being the practical
application of the rule of law, for example, remember the case of Entick v Carrington
(1765) 19 St Tr 1029, discussed earlier in this guide, which demonstrates the principle
of legality. The rule of law, as discussed in Chapter 4, requires that public bodies act
within their lawful powers and behave in a manner which complies with standards
of natural justice. Through the process of judicial review the courts uphold these
standards and ensure the legal accountability of the executive and other public
bodies. As Endicott expressed it, ‘…the core task of administrative law is to impose the
rule of law on public authorities’. (Endicott, T. Administrative law. (New York: Oxford
University Press) 2nd edition [ISBN 9780199601752].)
Further reading
¢ Jeffrey Jowell, J. ‘The rule of law’s long arm: uncommunicated decisions’ [2004]
Public Law 246.
¢ Endicott, T. Administrative law (Oxford: Oxford University Press, 2018) 4th edition
[ISBN 9780198804734] p.41.
10.2 The nature and scope of judicial review

Judicial review is a form of court proceeding which reviews the lawfulness of a decision
or action made by a public body and provides legal redress (against public bodies).
This is distinct from the political accountability which is imposed predominately
through parliamentary mechanisms. Judicial review thus plays an important role in
ensuring that the improper or unlawful use of power can be checked and imposes
legal accountability upon the executive.
Judicial review is likely to prove to be a contentious process, since it allows groups and
individuals to challenge the lawfulness of decisions made by ministers, government
departments, local authorities and other public bodies. It is important to recognise
that, while often contentious, it is crucial that judicial review is not used as an attempt
to bring politically motivated challenges.
10.2.1 Distinguishing judicial review from appeal

There is clear judicial recognition of the distinction between judicial review and an
appeal.
The key point here is that review has traditionally been understood in much narrower
terms than appeal, as Justice Laws explained in R v Somerset County Council, ex parte
Fewings [1995] 1 All ER 513 at 515:
in most cases, the judicial review court is not concerned with the merits of the decision
under review. The court does not ask itself the question, ‘Is this decision right or wrong?’
Far less does the judge ask himself whether he himself would have arrived at the decision
in question…[T]he task of the court, and the judgment at which it arrives, have nothing to
do with the question, ‘Which view is the better one?’
It is thus important that the courts may not interfere with exercises of discretion
(on the part of the executive) simply because they disagree with the decision or
action in question. Instead, courts should intervene only if some specific fault can be
established, for example, if the decision was reached in a procedurally unfair manner.
The judicial review jurisdiction operates within distinct limits and accordingly the
role of the court is to supervise the exercise of discretionary power in order to ensure
it has been exercised lawfully. The court has a supervisory rather than an appellate
jurisdiction.
Unlike recourse to appeal, which is often expressly provided for in the relevant
legislation, there is no automatic or ‘unfettered’ right to judicial review. Rather, a
claimant must seek the court’s ‘leave’ or permission to apply for judicial review.
Whereas bodies with an appellate jurisdiction can make up their own mind about
the merits of the case, in judicial review cases, the focus is predominantly on the
lawfulness and process rather than the substance or merits.
Judicial review does not involve the court in deciding whether the public body has
made the ‘right’ or ‘correct’ decision, but whether the correct legal basis has been
used in reaching it. So, the court examines the legality of the decision or action, not
the merits. This was expressed clearly by Lord Bingham in R (Corner House Research) v
Director of Serious Fraud Office [2008] UKHL 60 at [41]:
The issue in these proceedings is not whether his decision was right or wrong, nor
whether the Divisional Court or the House agrees with it, but whether it was a decision
which the Director was lawfully entitled to make.
Also in judicial review cases the court cannot substitute its opinion for that of the
lawfully empowered decision-maker. This essentially means that even if the court held
that a decision had been made in an unlawful or procedurally improper manner, the
public body would be able to make the same decision again, so long as it did so in a
lawful way. In Brind v Secretary of State for the Home Department [1991] 1 All ER 720 Lord
Ackner said that to substitute the court’s own view for that of the decision-maker
would amount to ‘a wrongful usurpation of power by the judiciary’.
10.2.2 The traditional view of judicial review

The classic statement of the traditional view of judicial review comes from Lord
Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155:
Judicial review is concerned, not with the decision, but with the decision-making process.
Unless that restriction of the power of the court is observed, the court will in my view,
under the guise of preventing the abuse of power, be itself guilty of usurping power.
10.3 Amenability to judicial review
10.3.1 Actions of public bodies

It is generally the decisions or actions of governmental or public bodies which are
amenable (or subject to) judicial review. For example, the sort of public bodies whose
decisions may be challenged include government ministers and departments, local

authorities, health authorities, chief constables and prison governors.
It is worth noting that, in general, public authorities are subject to the ordinary law
of contract, tort and property. In such contexts a claim for judicial review should not
be used instead of an ordinary action simply because the situation involves a public
authority. For further discussion on the private/public law divide in this context you
might like to read O’Reilly v Mackman [1983] 2 AC 237.
10.3.2 Source of power: statute or prerogative

Both statutory powers and, since the GCHQ case in the mid-1980s, prerogative powers
are amenable to review. So, public bodies deriving power from either statute or
prerogative are amenable to judicial review. As noted in Woolf et al., p.15 ‘Judicial
Review has developed to the point where it is possible to say that no power – whether
statutory or prerogative – is any longer inherently unreviewable.’
10.3.3 Private bodies and public functions

What of public functions carried out by private (non-state) bodies? Are these
amenable to judicial review? Judicial review has been expanded to cover decisions
made by private or non-governmental bodies which are seen to be exercising de facto
public law powers, that is, exercising powers which are analogous to governmental
powers.
In R v Panel on Take-Overs and Mergers ex p. Datafin plc [1987] QB 815, the then Master
of the Rolls stated that the public element ‘may take many different forms’. In
that case, the panel on takeovers and mergers was not a governmental body nor
was it established by either statute or prerogative powers. It was a self-regulating
voluntary body which acted as a City ‘watchdog’. Datafin plc sought a judicial review
of the Panel’s actions. The court held that judicial review was adaptable and that its
jurisdiction could be extended to a body which operated as part of a system which
performed public law duties. In this instance, the Panel was treated as exercising
public functions (so, as a de facto public body). It was set up in the public interest and
was public by reason of the function or nature of its power. There was an ‘implied
devolution’ of this function by government to the Panel.
The test is the nature of power being exercised rather than the source of the power.
However, other bodies have been held to be insufficiently governmental in type.

In a later case it was explained that the amenability question requires ‘careful
consideration of the nature of the power and the function that has been exercised to
see whether the decision has a sufficient public element, flavour or character to bring
it within the purview of public law’ (Dyson LJ in R (Beer (trading as Hammer Trout Farm) v
Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233).
Purely private or contractual relationships are excluded from judicial review. A classic
case dealing with this aspect is Aga Khan (R v Disciplinary Committee of the Jockey Club,
ex p Aga Khan [1993] 2 All ER 853). In this case, although the Jockey Club performed a
regulatory role through regulating horse-racing in Britain, its relationship with its
members (racehorse owners) also involved a contractual element. The Court of Appeal
held that, notwithstanding its importance, the sport’s governing body did not exercise
powers of a governmental kind and was not public.
Remember also that purely private bodies/individuals are not subject to judicial
review.
10.4 Procedural requirements

There are a number of procedural requirements to be met in a claim for judicial
review: justiciability; the requirement to seek the permission of the court and the fact
that judicial review is a discretionary remedy; relatively strict time limits; the exclusion
of judicial review if an ‘alternative remedy’ exists; and the need to have ‘standing’.
Activity 10.1
These procedural requirements are often referred to as ‘filter mechanisms’. Look at
the following comments and put together a brief explanation as to why this is.
Lord Diplock said the purpose of the requirement of permission was ‘to prevent the
time of the court being wasted by busybodies with misguided or trivial complaints
of administrative error’ and to reduce uncertainty (IRC v Federation of Self-Employed
and Small Businesses Ltd [1982] AC 617, 643).
Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124 at 1131: ‘The public interest in
good administration requires that public authorities and third parties should not
be kept in suspense as to the legal validity of a decision…for any longer period than
is absolutely necessary in fairness to the person affected…’
10.4.1 Justiciability
An application for judicial review must concern a public law issue that is prima facie
justiciable. But what does this mean?
The term ‘non-justiciable’ is typically used to describe acts or decisions which the
courts are unable, or at least unwilling, to subject to review. Regardless (these days)
of whether the powers have a statutory or prerogative base, there are certain factors
which tend to incline towards non-justiciability, such as international relations,
national security, specialist expertise and financial matters. Thus, issues around
public policy, the allocation of economic resources, political decisions, professional
or academic judgement and suchlike were traditionally excluded from review and
treated as non-justiciable by the courts. This is because they are generally perceived to
be the correct or proper domain of the executive rather than the courts, aligning with
the partial separation of powers in the British constitution.
The notion of justiciability is one for the court to decide upon – it is for the court
to decide what is and is not ‘justiciable’. The recent high-profile Miller No. 2 case
demonstrates that it is entirely possible for senior judges to hold different views on
the matter.
In the High Court, according to a panel composed of the Lord Chief Justice of England
and Wales, the Master of the Rolls and the President of the Queen’s Bench Division,
Miller’s challenge by way of judicial review seeking a declaration that the Prime
Minister’s advice to her Majesty the Queen to prorogue Parliament for five weeks was
dismissed as it was deemed to be non-justiciable (R (Miller) v Prime Minister [2019]
EWHC 2381).
But on (a leapfrog) appeal to the Supreme Court the matter was considered by the
court and in a unanimous judgment held to be unlawful (Miller No. 2).
10.4.2 Permission requirement

The procedure for a claim for judicial review is governed by Part 54 of the Civil
Procedure Rules 1998 and s.31 of the Senior Courts Act 1981 (which was previously
known as the Supreme Court Act 1981). As mentioned above, there is no automatic or
‘unfettered’ right to review but rather the claimant must seek the court’s ‘leave’ or
permission to apply for it. This involves a two-stage process: first, the court decides
whether to permit a claim for review to proceed (the permission stage) and, if so, then
a substantive hearing of the claim will take place. Only if permission is granted will the
claim proceed to be dealt with by the court (that is, the substantive hearing).
In Sharma v Brown-Antoine [2006] UKPC 57 the Privy Council suggested that one aspect
of this process would be for the court to consider whether the case had a ‘realistic
prospect of success’.
More recently, the Criminal Justice and Courts Act 2015 introduced a new ‘materiality
threshold’. In s.84 (which amends s.31 Senior Courts Act 1981), relief can be refused ‘if it
appears to the court to be highly likely that the outcome for the applicant would not
have been substantially different if the conduct complained of had not occurred’.
Activity 10.2
Does the court have any discretion in the application of the requirements in s.84 of
the Criminal Justice and Courts Act 2015?
10.4.3 Time limits and absence of delay

Claims for judicial review must be brought ‘promptly, and in any event not later than
3 months after the grounds to make the claim first arose’ (Part 54.5(1) CPR). The period
may be shorter in some instances if legislation so provides, for example, a change was
made in 2013 to have a shorter time limit of six weeks for planning cases with the aim
of reducing challenges and increasing certainty in areas where significant sums of
money are spent.
The court does have discretion to extend the time limit in exceptional circumstances,
if there is good reason to do so (see, for example, the extension of the time limit to
some two years due to the circumstances in R v Secretary of State for Foreign Affairs ex p
World Development Movement Ltd [1995] 1 All ER 611).
Similarly, under s.31(6) of the Senior Courts Act 1981, where the court considers that
there has been ‘undue delay’ in applying for judicial review, it may refuse to grant
permission or any relief sought by the claimant: ‘…if it considers that the granting
of the relief sought would be likely to cause substantial hardship to, or substantially
prejudice the rights of, any person or would be detrimental to good administration’.
10.4.4 Exhaustion of alternative remedies

Judicial review is often described as a ‘remedy of last resort’. This means that a claim
for judicial review should not be sought unless or until any alternative remedies have
been exhausted. If there is the possibility of appeal, for example, to a tribunal with
relevant jurisdiction, this must be used instead of opting for a claim for judicial review.
In Glencore Energy UK Ltd v Revenue and Customs Commissioners [2017] EWHC 1476
(Admin) and [2017] EWHC 1587 (Admin) the High Court refused permission to apply
for judicial review of a decision to impose diverted profits tax. This was because
the statutory review and appeals process which existed provided an effective and
appropriate alternative.
10.4.5 Standing (locus standi)

Standing in this context is the entitlement to be heard. When leave (or permission)
is sought for a judicial review claim, the court must not grant this ‘unless it considers
that the applicant has a ‘sufficient interest in the matter to which the application
relates’ (s.31(3) Senior Courts Act 1981). The ‘sufficient interest’ test is derived from the
judgment in IRC v National Federation of Self-Employed and Small Businesses [1982] AC 617
and it allows the courts significant discretion.
At the permission stage the court has the discretion to turn away those claimants
not affected by the action or without a legitimate concern – often described in this
context as ‘busybodies’ – although at the substantive hearing other questions of
standing may be raised. In the majority of claims for judicial review the question of
‘sufficient interest’ does not pose problems but difficulties can arise when a claimant
is not personally affected by a decision and is acting in the public interest. However,
generally courts are reluctant to refuse permission on standing grounds where the
claim otherwise has merit.
Standing under the Human Rights Act 1998

The Human Rights Act 1998 introduced a different test of standing. Under s.7 a claim
may be brought only by a ‘victim’ of the act within the meaning of Article 34 ECHR. In
accordance with the case law of the European Court of Human Rights, this does not
allow for cases to be brought by pressure groups or representative associations unless
they are themselves ‘victims’ of a breach of the Convention rights.
Standing at common law

Traditionally, at common law, a restrictive view of standing was taken – to filter
out frivolous and unauthentic applications – and only a person who was directly
affected by an administrative action would be granted standing. These cases could
be categorised as ‘individual standing’. Over time, a more liberal or broader approach
to the question of standing has been adopted and, in practice, it is now unusual for
a claim to fail for lack of standing. There are examples of both individual standing,
where the individual bringing the claim is not directly affected but is considered to
have a genuine public or constitutional interest, and representative standing. This
representative standing can be both from the perspective of associational standing
(for example, a membership organisation bringing a claim on behalf of its members
who are individually affected) and public interest standing (where a claim is brought
on public interest grounds).
Individual standing
In relation to an individual who was directly (personally) affected, consider the case
of a prisoner who wished to challenge a decision that found him guilty of disciplinary
offences and punished him for it. He clearly had standing (R v Hull Prison Board of Visitors,
ex p St Germain (No. 2) [1979] 3 All ER 545). Or a student of Scientology who sought to
challenge the refusal of the Home Office to allow them to remain in the country. Again, a
clear example of sufficient interest was demonstrated and so there was no difficulty with
standing (Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149).
A more unusual example arose in R v Secretary of State for Foreign and Commonwealth
Affairs, ex p Rees-Mogg [1994] QB 552, in which a member of the House of Lords with a
‘sincere concern for constitutional issues’ was held to have standing to challenge the
Foreign Secretary’s decision to ratify the Maastricht Treaty. On the facts, however, the
claim failed.
Representative standing: associational

What might be described as ‘associational standing’ refers to representative groups
acting on behalf of their members where the members are directly affected, for
example, a professional body or trade union. In this context, again, there is usually no
problem regarding standing as the group is acting in relation to a decision or action
which directly affects its own interests and is essentially acting as a proxy for its
members.
In R v Liverpool Corporation ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299

a local authority had a duty to issue licences for taxis and to set the number of licences
which were being granted. It decided to increase the number of taxi licences (after
undertaking on behalf of the local authority not to do so for a specified period) but
failed to consult the Taxi Fleet Operators’ Association. The Association sought leave
to apply for a judicial review of the local authority’s decision. The court held that the
Association had standing.
Representative standing: public interest

What of situations where groups claim to be acting in the public interest? In R v
Secretary of State for the Environment ex p Rose Theatre Trust Co [1990] 2 WLR 186 a very
restrictive approach to standing was taken which can be contrasted with later cases
such as Greenpeace and World Development Movement.
In Rose Theatre the Rose Theatre Trust Company was set up to preserve the historic
remains of an old Shakespearian theatre that were found during some development
works. The group made an application to the Secretary of State for an order under
the Ancient Monuments and Archaeological Areas Act 1979 that would give the
remains protected status. The Secretary of State refused to list the theatre remains
as a scheduled monument and the group sought to challenge this decision through
judicial review.
The court held that the Trust Company (as an ad hoc group) lacked standing to
challenge the ministerial decision. The court denied them standing because a group
of people, none of whom had standing individually, could not confer standing upon
themselves merely by forming a company or trust.
There are some similarities, although a different result, with regard to standing, in the
more recent case of R (on the application of Plantagenet Alliance Ltd) v Secretary of State
for Justice [2015] 3 All ER 261.
Activity 10.3
Read the following judgment: www.judiciary.uk/wp-content/uploads/2014/07/
richard-3rd-judgment-.pdf relating to the Plantagenet Alliance’s judicial review of
the Secretary of State’s decision to rebury the remains of Richard III. Try to identify
the reason(s) why the Plantagenet Alliance was granted standing.
Evidence of a more liberal approach to standing can be observed in R v Inspectorate
of Pollution ex p. Greenpeace Ltd (No. 2) [1994] 4 All ER 329. Here, the issue was that of
Greenpeace, an NGO/pressure group, which campaigns to protect the environment,
seeking to challenge, via judicial review, a decision regarding the discharge of nuclear
waste from a reprocessing plant at Sellafield in Cumbria.
Again, the question was whether the challenger (in this instance, Greenpeace) had
standing. As explained earlier, the ‘sufficient interest’ question leaves a lot of discretion
to the court. Here, Greenpeace was granted standing to challenge the decision
(although on the facts their claim failed). The court explained that several factors
contributed to the decision on standing – Greenpeace was a well-known and respected
pressure group on environmental issues and if it were denied standing there would
probably be a less well-informed challenge. Also, some 2,500 members of Greenpeace
lived in the local area. The Rose Theatre case was distinguished on the basis that in that
case the company had been formed especially to mount a legal challenge.
The court did, however, make it clear in Greenpeace that it would not automatically be
the case that Greenpeace gained standing in future cases.
R v Secretary of State for Foreign Affairs ex p World Development Movement Ltd [1995] 1 All
ER 611 demonstrates a fairly open approach to standing in the context of a significant
matter of public concern. In this case a pressure group sought a judicial review of the
Foreign Secretary’s refusal to assure them that no further funds would be given to an
aid project in Malaysia about which serious concerns had been raised.
The court held that the group did have standing to bring the challenge. It outlined
a range of factors (including the prominent role of the Movement in the field of
development aid) which contributed to this finding.
From this case, it seems that a campaign group is likely to have standing if the issue
is important to the public, no one else could make a responsible challenge and the
claimant has a ‘prominent’ role in the field.
Activity 10.4
Consider the advantages and disadvantages of the courts adopting a more ‘open’ or
liberal approach to standing.
Before moving on to the next section, which considers the grounds for review, take
time to look over the flow chart below which is intended as a visual summary to help
you work through the procedural requirements for a claim for judicial review.
Public body? Public law issue?

Or de facto public body (i.e. (Procedural exclusivity)
exercising a public function - Which is prima facie
nature not source of power) justiciable
Procedural requirements
Standing • Permission of court
Does the applicant have
• Time limit (3 months)
‘sufficient interest’?
• Alternative remedies exhausted?
Representative Individual
Figure 10.1 A visual summary of the procedural requirements for judicial review
An interesting recent case where standing was discussed in relation to the ‘public
interest’, is that of a challenge to the ‘lockdown’ regulations introduced in March 2020
in response to the COVID-19 pandemic. See R (on the application of Dolan) v Secretary of
State for Health and Social Care [2020] EWCA 1605.
In the High Court, permission to apply for judicial review was refused – in part because
the claim for review of the original regulations was now ‘academic’ as the regulations
had since been replaced. The recent Court of Appeal ruled ‘in substance this is a
renewed application for permission to bring the underlying claim for judicial review’
(para.28). The Court of Appeal granted permission to bring the claim for judicial
review on one of the grounds raised (that the Government had no power under the
legislation they used to make the regulations, namely the Public Health (Control of
Disease) Act 1984, as amended by the Health and Social Care Act 2008) in the public
interest. However, this argument was unsuccessful on its merits as ‘the Secretary of
State did have the power to make the regulations under challenge’ (para.115, emphasis
added).
Please read this case in full, it is an accessible and interesting illustration of a judicial
review: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1605.html
10.5 Grounds of review

Most often, when we seek to outline the grounds of review today, we draw upon the
classifications provided by Lord Diplock in the GCHQ case (Council of Civil Service Unions
v Minister for the Civil Service [1985] AC 374):
Judicial review has I think developed to a state today when…one can conveniently classify
under three heads the grounds on which administrative action is subject to control by
judicial review. The first ground I would call ‘illegality,’ the second ‘irrationality’ and the
third ‘procedural impropriety’…That is not to say that further development on a case by
case basis may not…add further grounds…[e.g.] the possible adoption in the future of the
principle of ‘proportionality’…
10.5.1 Illegality
Lord Diplock in GCHQ summarised illegality in the following way:
…that the decision-maker must understand correctly the law that regulates his decision-
making power and must give effect to it. [This is]…par excellence, a justiciable question
to be decided, in the event of dispute, by those persons, the judges, by whom the judicial
power of the state is exercisable.
Under the ground of illegality there are two principal sub-categories: simple ultra
vires (acting beyond or exceeding one’s powers) and issues relating to the exercise of
discretion (this could be abuse, misuse, unlawful delegation or fettering (limiting) of
one’s discretion).
Acting ultra vires

The classic case for judicial review is that of a public body exceeding the powers which
have been given to it. For example, in Attorney-General v Fulham Corporation [1921]
1 Ch 440 it was held that a local authority’s statutory powers (under the Baths and
Washhouses Acts 1846) did not extend to running a commercial laundry business. In
R v Richmond upon Thames Council, ex p McCarthy and Stone Ltd [1992] 2 AC 48, where
a local council imposed a charge for giving (pre-application) advice in relation to
planning applications, the charge was unlawful as it was ultra vires and not ‘reasonably
incidental’ to the council’s planning powers.
Exercise of discretion
…a public officer has discretion whenever the effective limits on his power leave him free
to make a choice between possible courses of action or inaction.
(Davis, K.C. Administrative law. (St Paul: West Publishing Co., 1951))
It is generally accepted that for modern governance to function effectively, to retain

appropriate levels of flexibility and to be able to adjust to unforeseen circumstances,
public bodies and officials need to be able to exercise discretion. However, there
are many scenarios in which this discretion might not be exercised lawfully or
appropriately, some of which are as follows:
u discretion is not unlimited (the person to whom it has been delegated cannot fail
to exercise it at all)
u it must be used for the purpose for which it was granted
u it cannot be delegated (the exception is the Carltona principle which relates to

government ministers being permitted to delegate decisions to suitably senior
civil servants. This is because the minister is ultimately responsible to Parliament
for their department and the decisions of officials within it)
u it cannot be exercised so strictly as to operate as a ‘rule’.
10.5.2 Procedural impropriety

Falling within this ground of review are procedural requirements set out in statute and
the common law requirements known as the ‘rules of natural justice’.
A good example of a commonly required procedure is that of the requirement to

consult. This might be set out in statute – the most straightforward situation (see,
for example, Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280) – or
might arise through the common law because a legitimate expectation has been
created or as part of the duty to act fairly.
The rules of natural justice

These are common law rules or principles developed by the courts. If one wanted to
explain these two principles – the rule against bias and the right to a fair hearing – in
non-legal terms, the most appropriate term to use would be simply fairness.
The rule against bias (nemo judex in causa sua)

This reflects the basic principle that no one should act as a judge in their own cause to
ensure that decisions should be free from bias. This helps to ensure confidence in the
decisions made. It is seen as important that justice must not only be done but must
also be seen to be done.
This rule can be sub-divided into:
u actual bias
u presumed bias
u apparent bias.
Actual bias
Actual bias occurs if a person is ‘motivated by a desire to favour one side or disfavour
the other’ as per Lord Goff in R v Gough [1993] AC 646.
Presumed bias
This can arise where the person making the decision has a pecuniary (financial) or
otherwise direct interest in the case or the outcome of the case.
An example of this was the link between Lord Hoffmann and Amnesty International
in the Pinochet case (discussed in Chapter 9). In situations where there is presumed
bias, the decision maker is disqualified from making the decision (or judging the case)
‘without any investigation into whether there was a likelihood or suspicion of bias’
(per Lord Browne Wilkinson).
Apparent bias
In these situations (unlike where there is actual or presumed bias) the decision maker
is not automatically disqualified from making the decision but a test for apparent bias
is applied. This test was set out by the House of Lords in Porter v Magill [2002] 1 All ER
465. It involves first ascertaining all the circumstances which give rise to bias, and then
asking whether in those circumstances a ‘fair-minded and informed observer’ would
conclude that there was a ‘real possibility’ of bias.
The right to a fair hearing (audi alteram partem)

In McInnes v Onslow-Fane [1978] 3 All ER 211 (a case about an application for a boxing
manager’s licence) fairness was explained as a variable concept and the requirements
of what would be needed for a fair hearing would depend on the context of the case
and the impact or consequence of the action or decision. A distinction was drawn
between three categories: forfeiture cases (where some benefit or position is being
revoked or taken away and the requirements of fairness greatest); expectation cases
(where the individual had some expectation of receiving the benefit, position, etc.);
and application cases (where the requirements would be lowest as the individual was
merely an applicant).
One particularly interesting development in this area is the increasing expectation

of a decision maker to provide reasons for a decision or action. Lord Denning in 1971
opined that ‘giving reasons is one of the fundamentals of good administration’,
however, there is still no general duty at common law to give reasons, although the
courts clearly assign importance to the giving of reasons and are willing to make
inferences from their absence that a decision may not have had a rational basis.
10.5.3 Irrationality or ‘Wednesbury unreasonableness’

In the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] 2 All ER 680 Lord Greene MR explained it as follows: ‘if a decision on a competent
matter is so unreasonable that no reasonable authority could ever have come to
it, then the courts can interfere’, but to prove a case of that kind would require
something overwhelming.
In GCHQ, Lord Diplock suggested that:
what can by now be succinctly referred to as ‘Wednesbury unreasonableness’…applies to

a decision which is so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided could
have arrived at it.
It can be clearly ascertained from these statements that for the ground of irrationality
the courts have set a very high threshold for intervention. This is because, unlike
the grounds of illegality and procedural impropriety, which follow the classic idea
that judicial review examines lawfulness rather than merits and process rather than
substance, when it comes to determining reasonableness the court has to examine
the decision itself.
One way of addressing this has been to vary the intensity of review according to
the subject matter and context. Where actions or decisions involve complex policy,
professional judgement, economic issues or political matters an even higher threshold
of unreasonableness will be applied and the courts will adopt a light touch or ‘super
Wednesbury’ approach. At the other end of the scale, where fundamental rights are
involved, a lower level of unreasonableness will be required for the courts to be willing
to subject the action or decision to review. In Bugdaycay v Secretary of State for the
Home Department [1987] AC 514, Lord Bridge explained that ‘when an administrative
decision under challenge is said to be one which may put the applicant’s life at risk,
the basis of the decision must surely call for the most anxious scrutiny’.
Wednesbury unreasonableness has met with much criticism over the years, and
perhaps one of the clearest critiques was that of Jowell and Lester in 1987 where they
argued that it was opaque, unrealistic, tautologous and confusing (Jowell, J. and A.
Lester ‘Beyond Wednesbury: substantive principles of administrative law’ 1987 Public
law 368). Proportionality has often been proposed as an alternative test.
10.5.4 Proportionality
It was suggested by Lord Diplock in GCHQ that proportionality could provide a
potential fourth ground of review. In many ways, proportionality is a much more
straightforward concept than Wednesbury unreasonableness and one with which
the UK courts have become very familiar in recent decades. It is a commonly used
principle in European Union law and also in the jurisprudence of the European Court of
Human Rights.
In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

[1999] AC 69, Lord Clyde put forward a three-part test for proportionality. First, that the
legislative objective is sufficiently important to justify limiting a fundamental right;
second, that the measures designed to meet the legislative objectives are rationally
connected to it; and, third, that the means used to impair the right or freedom are
no more than is necessary to accomplish the objective. This test was endorsed by the
House of Lords in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26.
Since then the approach adopted by the UK courts has been a twin-track one, with
proportionality used in relation to ECHR/HRA 1998 cases but irrationality/Wednesbury
unreasonableness remaining the test at common law.
There have been frequent calls to replace Wednesbury unreasonableness with

proportionality, but Keyu v Secretary of State for Foreign and Commonwealth Affairs
[2015] UKSC 69 indicates this is not imminent.
For further discussion please read the following blog post:
Elliott, M. ‘Q: How many Supreme Court Justices does it take to perform the
Wednesbury doctrine’s burial rites? A: More than five’ (Public Law for Everyone, 27
November 2015): https://publiclawforeveryone.com/2015/11/27/q-how-many-supreme-
court-justices-does-it-take-to-perform-the-wednesbury-doctrines-burial-rites-a-more-
than-five/
10.6 Independent Review of Administrative Law

In July 2020 an Independent Review of Administrative Law (IRAL) was established to
‘consider whether the right balance is being struck between the rights of citizens to
challenge executive decisions and the need for effective and efficient government’.
After reviewing the evidence received, the Panel will suggest options for reform to be
considered by the Lord Chancellor and the Minister for the Cabinet Office.
The terms of reference for the review can be found here along with a
list of members of the review panel: www.gov.uk/government/groups/
independent-review-of-administrative-law

understanding of both the principles and process of judicial review. This is a large topic
and there is much to understand.

As mentioned above, judicial review is a complex and expansive topic which could be
examined in a variety of ways. It would be inadvisable to attempt to ‘question spot’ for
this reason. However, it is important to look over past examination papers in order to
gain an understanding of which aspects of judicial review can be examined and how.
For example, a typical question might focus on one of the following:
u the filter mechanisms or procedural requirements
u one or more of the grounds for review
u the constitutional justification or underlying purpose of judicial review.
You will have noticed that there is more case law in this topic than in some others
on the Public law syllabus. Consequently you will need a solid knowledge of relevant
authorities in the form of case law to adequately answer any question on judicial
review.
Part IV Civil liberties and human rights
11 Human rights in the UK
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
11.1 Defining human rights . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.2 Categories of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.3 The international dimension . . . . . . . . . . . . . . . . . . . . . . 112
11.4 Absolute and qualified rights . . . . . . . . . . . . . . . . . . . . . . 115
11.5 Traditional protection of civil liberties in English law . . . . . . . . . . 116
11.6 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . 116
11.7 Parliamentary and external scrutiny . . . . . . . . . . . . . . . . . . 123
11.8 Devolution and the Human Rights Act 1998 . . . . . . . . . . . . . . . 123
11.9 Proposals for reform – a British Bill of Rights? . . . . . . . . . . . . . . 123
Chapter review and self-assessment . . . . . . . . . . . . . . . . . . 125

Introduction
After the Second World War, much attention in Europe was focused on the protection
and safeguarding of fundamental rights. This gave rise to the creation of some
international documents, including the United Nations Universal Declaration of
Human Rights and the International Covenants on Civil and Political Rights and
Economic, Social and Cultural Rights which stemmed from this. The European
Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR)
was drafted by the Council of Europe and has bound the UK since 1953. It remains the
most significant international rights document for the European nations.
Traditionally referred to as ‘civil liberties’, which were protected largely through the
common law and Parliament, the domestication of most of the ‘Convention rights’
contained in the ECHR via the Human Rights Act 1998 (HRA 1998) has altered the
means of protection of rights and consequently the role of the domestic courts. This
has subsequently posed some challenges for relationships between the branches of
government. Questions have been raised as to where the final decision on matters of
human rights should lie. This tension has been heightened by the ongoing threat of
terrorism.
In more recent years, there has been some discussion about whether the HRA 1998
should be repealed and replaced with new legislation, perhaps a ‘British Bill of Rights’.
In this chapter we will look at the means through which human rights are protected
in the UK, both how this was done historically and more recently since the enactment
of the HRA in 1998. Protection of fundamental rights is not an entirely discrete topic
and you will see overlaps with previous material in a range of areas, for example, we
considered the impact of the HRA 1998 on parliamentary supremacy in Chapter 4 and
touched upon the HRA 1998 and judicial review in Chapter 10.
Unlike some of the others in this module guide, this section has an international
element, in which the ECHR is of particular importance.
There will be coverage of some particular aspects via case studies on the VLE.
Core text
¢ Le Sueur, Sunkin and Murkens, Chapter 7 ‘Protecting rights’ and Chapter 20
‘Using human rights in United Kingdom courts’.
Essential reading
¢ European Convention on Human Rights www.echr.coe.int/Pages/home.
aspx?p=basictexts&c=
¢ Universal Declaration of Human Rights www.un.org/en/

universal-declaration-human-rights/
Further reading
¢ Bogdanor, V. ‘The Human Rights Act: cornerstone of a new constitution’
(Gresham College Lecture, 25 January 2005): www.gresham.ac.uk/lectures-and-
events/the-human-rights-act-cornerstone-of-a-new-constitution (listen or read
transcript).
¢ Costigan, R. and R. Stone Civil liberties and human rights. (Oxford: Oxford
University Press, 2017) 11th edition [ISBN 9780198744276]. The first two chapters
are particularly relevant.
¢ European Convention on Human Rights: www.echr.coe.int/Pages/home.

aspx?p=basictexts&c=
¢ Ewing, K.D. Bonfire of the liberties: new labour, human rights and the rule of law.
(Oxford: Oxford University Press, 2010) [ISBN 9780199584772]. Although now
rather old, this is a very readable and comprehensive discussion of the first 10
years of the operation of the HRA 1998.
Public law 11 Human rights in the UK page 111
¢ Factsheet No. 2 of the International Bill of Human Rights: www.ohchr.org/

Documents/Publications/FactSheet2Rev.1en.pdf
¢ Fenwick, H. Fenwick on civil liberties and human rights. (Abingdon: Routledge,

2016) 5th edition [ISBN 9781138837942].
¢ Lord Hoffmann ‘The universality of human rights’ (Judicial Studies

Board Annual Lecture 2009): www.judiciary.uk/announcements/
speech-by-lord-hoffmann-the-universality-of-human-rights/
¢ House of Commons Library Briefing Paper ‘A British Bill of Rights?’ (No. 7193, 19
May 2015): https://researchbriefings.parliament.uk/ResearchBriefing/Summary/
CBP-7193
¢ House of Commons Library Research ‘From the Human Rights Act to a Bill of
Rights?: key issues for the 2010 Parliament’: www.parliament.uk/business/
publications/research/key-issues-for-the-new-parliament/security-and-liberty/
from-the-human-rights-act-to-a-bill-of-rights/
¢ Judicial Power Project ‘Human rights and political wrongs’ series (Policy
Exchange): http://judicialpowerproject.org.uk/category/posts/series/
human-rights-and-political-wrongs/
¢ Lock, T. Human rights reform and the UK’s international human rights obligations.
(London: British Academy, 2016): www.thebritishacademy.ac.uk/publications/
europe-futures-human-rights-reform-and-uk-international-human-rights-
obligations/
¢ Masterman, R. and S. Wheatle ‘A common law resurgence in rights protection?’

(2015) EHRLR 57–65.
¢ Oliver, D. ‘Functions of a public nature under the Human Rights Act’ (2004) PL 329.
¢ UK Human Rights blog: https://ukhumanrightsblog.com/ In particular the

‘Introduction to human rights’ section: https://ukhumanrightsblog.com/
introduction/
¢ Sumption, J. Trials of the state: law and the decline of politics. (London: Profile
Books, 2020) [ISBN 9781788163736].
¢ Wagner, A. and G. Barth ‘Judicial interpretation or judicial vandalism? Section 3

of the Human Rights Act 1998’ (2016) 21(2) Judicial Review 99–104.
11.1 Defining human rights

According to the Equality and Human Rights Commission:
Human rights are the basic rights and freedoms that belong to every person in the world,
from birth until death. They apply regardless of where you are from, what you believe
or how you choose to live your life…These basic rights are based on values like dignity,
fairness, equality, respect and independence. (www.equalityhumanrights.com/en/human-
rights/what-are-human-rights)
Activity 11.1
Watch this short video by the Equality and Human Rights Commission that
provides a simple overview of human rights: www.equalityhumanrights.com/en/
human-rights/what-are-human-rights
11.2 Categories of rights

Rights are generally divided into two main categories:
1. civil and political rights and
2. social and economic rights.

Civil and political rights are also referred to as ‘first-generation rights’ whereas social
and economic rights are referred to as ‘second-generation rights’. The former category
includes things such as the right to life and freedom of speech, and the latter category
describes such things as the right to work or a right to education. Traditionally,
political and civil rights were viewed as restraints on government action (i.e. to stop
them from doing something). Another distinction is that social and economic rights
usually involve state financial resources to be allocated to them directly, whereas this
is not always required (or at least not as directly) for the more widely protected civil
and political rights.
There is also a category of ‘third-generation rights’ or ‘collective rights’ which,

according to Costigan and Stone, attach ‘to groups rather than individuals, such as the
right of self-determination’. (Costigan, R. and R. Stone Civil liberties and human rights.
(Oxford: Oxford University Press, 2017) 11th edition [ISBN 9780198744276] p.7)
11.3 The international dimension

The end of the Second World War acted as a catalyst for the creation of new
international, particularly European, agreements on the protection of human rights.
Underlying this was a desire for unity and peace, and to ensure the atrocities of the
past war would not be repeated. The European nations were united in a desire to
ensure that human rights would be strongly respected and protected in the future and
recognised that such matters were no longer simply a national issue.
11.3.1 United Nations and International Bill of Human Rights

The United Nations was established, which introduced the Universal Declaration of
Human Rights (UDHR). Now, the International Bill of Human Rights consists of the
UDHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the
International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols.
For a helpful introduction to the Universal Declaration of Human Rights see: ‘The
Foundation of International Human Rights Law’ (United Nations): www.un.org/en/
sections/universal-declaration/foundation-international-human-rights-law/index.html
Activity 11.2
Please look at the following extracts and compare the wording of Article 2 of the
ICCPR and Article 2 of the ICESCR. What differences do you notice, in particular in
Article 2(1) of the Conventions?
International Covenant on Civil and Political Rights (ICCPR) Article 2
(1) Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized
in the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status.
(2) Where not already provided for by existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps, in accordance
with its constitutional processes and with the provisions of the present Covenant, to
adopt such laws or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.
(3) Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 2
(1) Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical,
to the maximum of its available resources, with a view to achieving progressively the
full realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.
(2) The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any
kind as to race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
(3) Developing countries, with due regard to human rights and their national economy,
may determine to what extent they would guarantee the economic rights recognized
in the present Covenant to non-nationals.
11.3.2 Council of Europe and ECHR

The Council of Europe had similar origins – it was established in 1949 by the Statute
of the Council of Europe (also described as the Treaty of London) and its members
drafted the Convention for the Protection of Human Rights and Fundamental
Freedoms, commonly referred to as the European Convention on Human Rights
(ECHR) in 1950. The ECHR came into force in September 1953. The Council of Europe
was initially formed as a group of 10 European states seeking to collaborate to protect
human rights, and now has 47 Member States, all of whom are signatories to the
Convention. The ECHR was largely based on the UDHR but is both less comprehensive
and less ambitious in its scope.
Activity 11.3
Read the Equality and Human Rights Commission briefing ‘What is the European
Convention on Human Rights?’: www.equalityhumanrights.com/en/what-
european-convention-human-rights and answer the following questions.
a. By whom was the Convention mainly drafted?
b. Whose human rights does the ECHR protect?
The Council of Europe operates through traditional instruments of international law

and the ECHR constitutes an international human rights regime. The European Court of
Human Rights (ECtHR), which applies and protects the rights and guarantees set out in
the ECHR, is located in Strasbourg and therefore you will often hear reference to ‘the
Strasbourg Court’.
EU or Council of Europe? CJEU or ECtHR?

There is often confusion among the public, and indeed sometimes the media, over
the relationship between the ECHR and the EU and the body’s respective courts, the
European Court of Human Rights (ECtHR) based in Strasbourg and the Court of Justice
of the European Union (CJEU) based in Luxembourg. The simple matter is that they
are separate bodies with differing memberships, remit and enforcement. It might be
helpful to think of them as ‘the two Europes’.
11.3.3 The institutions of the ECHR

Over the years there have been various institutional reforms designed to improve
efficiency and effectiveness. In 1998, with the entry into force of Protocol 11 to
the ECHR, the current structure of two institutions was established. These are the
Committee of Ministers, which is composed of the Foreign Affairs ministers of Member
States, and the European Court of Human Rights (ECtHR). The ECtHR has 47 judges – one
from each member state – divided into four sections. The judges are elected, for a non-
renewable nine-year term, by the Parliamentary Assembly of the Council of Europe,
from a list of three candidates nominated by each member state. Once elected, the
judges are independent and hear cases as individuals rather than as representatives of
that state.
Activity 11.4
Look up who the current United Kingdom ECtHR judge is.
11.3.4 Enforcement in the European Court of Human Rights
Individual petition – Article 34 ECHR

Applications to the ECtHR can be made by an individual against a state (under Article
34) where the applicant is a ‘victim’ of a violation of one or more of the Convention
rights by one of the state parties to the ECHR. This right of individual petition was
accepted by the UK in relation to its citizens in 1966.
Inter-state applications – Article 33 ECHR

Much more unusually, applications can be brought by one state against another,
in an inter-state application. This is done under Article 33, which states: ‘Any High
Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the Protocols thereto by another High Contracting Party’.
Such inter-state cases are brought very rarely and several of the applications relate to
the same situation (and between the same two states). The more usual procedure is
that of individual petition. As of January 2020 there had been only 24 inter-state cases
since the ECHR entered into force in 1953.
A complete list can be found here: www.echr.coe.int/Documents/InterState_

applications_ENG.pdf
Activity 11.5
Why do think you inter-state applications are so unusual?
After a decision is made on admissibility the ECtHR will investigate the application
with a view to ideally reaching a ‘friendly settlement’ of the dispute. If this proves
impossible to achieve, a judgment will be given by the court. Such a judgment, if it
finds that a state’s laws breach the convention rights, will impose an obligation on
the state to remedy the law. The Council of Europe’s Committee of Ministers oversees
the implementation of ECtHR judgments. However, ensuring compliance in the
international order is not always simple and the external pressure on a state to comply
is important, supported by the ultimate sanction of expulsion from the Council of
Europe.
Activity 11.6
Use this article as a starting point to explain the difference between the European
Union and the Council of Europe in terms of membership, origins and role:
https://ukandeu.ac.uk/fact-figures/whats-the-difference-between-the-european-
convention-on-human-rights-the-european-court-of-human-rights-and-the-
european-court-of-justice/
11.3.5 The ‘margin of appreciation’

This is explained in Fenwick (p.95) as follows:
The European Court of Human Rights has stated that role of the Convention in protecting
human rights is subsidiary to the role of the national legal system and that since the state
is better placed than the international judge to balance individual rights against general
societal interests, Strasbourg will operate a restrained view of the balance struck. Under
this doctrine, a degree of discretion will be allowed to Member States as to legislative,
administrative or judicial action in the area of a Convention right. However, Strasbourg
will finally determine whether such action is reconcilable with the guarantee in question.
For further detail please see: Greer, S.C. The margin of appreciation: interpretation and
discretion under the European Convention on Human Rights (Human rights files No. 17,
Council of Europe Publishing, 2000): www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-
EN-HRFILES-17(2000).pdf
You might also like to read some of the case law, for example, Handyside v UK [1976] ECHR 5.
11.4 Absolute and qualified rights

Almost all of the Convention rights, even those which are universally considered to
be fundamental, are subject to qualification or limitation in certain circumstances.
Even the use of lethal force (on the part of state authorities) can be justified in certain
circumstances.
11.4.1 Absolute rights

Perhaps the best examples of truly ‘absolute rights’ are to be found in Article 3,
which contains a prohibition on torture and inhuman or degrading treatment
and punishment, and Article 4, which prohibits slavery. Absolute rights cannot be
derogated from nor can they be lawfully interfered with in any circumstances.
An important case in relation to Article 3 was Ireland v United Kingdom (1978) 2 EHRR 25,
which you will notice was also an inter-state case before the ECtHR.
A state can also breach Article 3 by deporting a person to a country where they might
face torture or inhuman or degrading treatment and punishment. The case of Chahal
v United Kingdom (1996) 23 EHRR 413 held that in this instance, because of the risk to
Chahal, he could not be deported to India.
Arguably, it is the prohibition on deportation which has led to later difficulties for the
UK Government in relation to the treatment (detention without trial) of suspected
terrorists who are foreign nationals.
11.4.2 Qualified rights

The vast majority of rights, however, are subject to exceptions in certain
circumstances. A body of case law (both domestic and ECtHR) has developed around
the proportionality and necessity of state interference with individual rights and also,
in some instances (for example, between Article 8 – right to privacy – and Article 10 –
freedom of expression), the ‘balancing’ of competing rights.
Other Convention rights are described as ‘limited’ or ‘qualified’ rights. Those in the first
category, ‘limited’ rights, can be restricted in certain circumstances as specified in the
relevant provision of the ECHR. For example, under Article 5 the right to liberty can be
limited if a person is detained in prison following a criminal conviction.
‘Qualified’ rights can be restricted but only for the reasons explicitly set out in the
second paragraph of the ECHR provision. These rights, which are subject to express
qualifications, are in Articles 8 to 11:
u Article 8: Respect for private and family life, home and correspondence.
u Article 9: Freedom of thought, belief and religion.
u Article 10: Freedom of expression.
u Article 11: Freedom of assembly and association.
In relation to a ‘qualified right’, interference by a state can only be justified if the

following conditions are met:
1. The interference must be prescribed by (in accordance with) law.
2. The interference must serve a legitimate aim as articulated in Articles 8–11 (for
example, the protection of the rights of others, protection of health, morals and
public safety, national security).
3. The interference must be ‘necessary in a democratic society’.

11.5 Traditional protection of civil liberties in English law

Traditionally, in English law, fundamental rights, or ‘civil liberties’ as they were more
commonly described, were protected largely by the courts through the common
law. Parliament also protected various rights both specifically through statute and by
ensuring that the legislation it passed would not excessively encroach upon individual
freedoms.
The basic position was that individuals had the right (or liberty) to do anything that
was not prohibited by law. One need only look to the classic rule of law case of Entick v
Carrington (1765) 19 St Tr 1029 to see how the courts were willing to act to protect and
defend an individual against illegal or unauthorised action by the state. In many ways,
the courts were effective guardians of individual freedom. This approach also reflected
the traditional views of Dicey.
This type of protection can be referred to as ‘residual’ or ‘negative’, which were two
particular criticisms levelled at it. First, was the possibility that Parliament could
relatively easily pass legislation which limited civil liberties and that, as this could
be done in an incremental (and indeed even unintentional) manner, it might go
largely unnoticed. Second, the view that a positive statement of rights contributed
to stronger protection for citizens but would also raise awareness of such rights and
freedoms began to gain ground.
It is, however, worth bearing in mind that even aside from HRA/ECHR case law, the
courts remain protectors of rights through the common law. This is clearly illustrated
by R (UNISON) v Lord Chancellor [2017] UKSC 51 in which the Supreme Court struck down
a new system of employment tribunal fees introduced by the government because
they would limit access to justice.
11.6 The Human Rights Act 1998

The HRA 1998 has been described by Bogdanor as ‘a cornerstone of the new UK
constitutional order’.
This piece of legislation began as a Labour Party manifesto commitment ‘to introduce
legislation to incorporate the European Convention on Human Rights into United
Kingdom law’. After the general election in 1997, the introduction of a Human Rights
Bill was announced in the Queen’s Speech.
There had previously been attempts by individuals to introduce legislation

incorporating the ECHR into domestic law. In 1987 a Conservative MP, Sir Edward
Gardner QC, introduced a Private Member’s Bill into the House of Commons and
in 1994 and 1996 Bills were introduced into the House of Lords by the Liberal
Democrat Peer, Lord Lester of Herne Hill QC.
In 1997, government proposals on ‘bringing rights home’ were published, taking the
form of a White Paper. The preface to this White Paper stated that the Human Rights
Bill would:
…give people in the United Kingdom opportunities to enforce their rights under the
European Convention in British courts rather than having to incur the cost and delay of
taking a case to the European Human Rights Commission and Court in Strasbourg. It will
enhance the awareness of human rights in our society.
Activity 11.7
Read paras 1.14 to 1.19 of the White Paper ‘Rights brought home: the Human Rights
Bill’ (Cm 3782, October 1997) which can be accessed at: www.gov.uk/government/
publications/the-human-rights-bill and answer the following questions.
a. What are the practical difficulties identified with the process of taking cases to
the ECtHR?
b. What are the positive changes which it is argued will be brought about by
domestication of the Convention?
The legislation came into force on 2 October 2000. The HRA 1998 aims to ‘give further
effect’ to Convention rights by enhancing their accessibility and enforceability by
enabling these rights to be relied upon in the domestic (national) court and to provide
a ‘remedy’ for breaches of human rights.
Activity 11.8
Look up s.1 of the HRA 1998 at: www.legislation.gov.uk
a. Make a note of which provisions (Articles and Protocols) have been adopted by
the UK.
b. Complete the table below with a brief summary of the right(s) contained in these
provisions and whether or not these are qualified/limited. You will need to look at
the ECHR itself in order to complete this part of this activity.
Provision Overview of content Qualified right?
Activity 11.9
Now think about the ECHR Articles which the UK has not domesticated via the HRA
1998. What was the justification for this?
The HRA 1998 imposes several obligations on the courts. We will consider these by
looking at some of the key provisions of the legislation. Remember also that the HRA
1998 was enacted as a normal statute but because of the doctrine of parliamentary
supremacy, it is not protected, in the same manner as other statutes, from express
repeal (see Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 in relation to
implied repeal and ‘constitutional’ statutes such as the HRA 1998) or amendment.
Section 2 – taking account of Strasbourg jurisprudence

Section 2 places a duty on the national courts to have regard to or consider the
jurisprudence of the ECtHR (also often referred to as the Strasbourg Court).
Section 2(1) states:
A court or tribunal determining a question which has arisen in connection with a

Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human
Rights…
This is quite different from the obligation which the British courts had by virtue of
membership of the European Union whereby the decisions of the Court of Justice
(CJEU) were binding on the British courts on matters of EU law. In relation to the
Strasbourg Court, judgments, decisions, declarations and advisory opinions only have
to be taken into account by the UK courts.
Section 2 combined with s.6 (discussed below) which includes the courts in the
definition of ‘public authority’, thus requiring them to act in accordance with the
Convention rights. This strongly encourages the courts to develop domestic common
law following the ECtHR’s jurisprudence.
Activity 11.10
Read Lord Irvine’s lecture on the intention behind s.2 of the HRA 1998: www.biicl.
org/files/5786_lord_irvine_convention_rights.pdf
Although the domestic court has to ‘take into account’, it is not obliged to explicitly
follow the decisions of the ECtHR. In important cases such as R (Alconbury Developments
Ltd) v Secretary of State for the environment, Transport and the Regions [2003] 2 AC 295
and R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, in which Lord
Bingham laid down the so-called ‘mirror principle’, the courts have indicated that
although ‘not strictly binding’ on the domestic courts, ‘in the absence of some special
circumstances’ the courts should follow any ‘clear and constant jurisprudence’ of the
ECtHR.
The ‘mirror principle’ is the idea that pronouncements by national courts on

Convention rights should match (or ‘mirror’) those of the ECtHR.
More recently, courts have demonstrated greater willingness to depart from the
decisions of the ECtHR, as a unanimous bench of seven UK Supreme Court Justices
did in R v Horncastle [2010] 2 AC 373 (in a case relating to a criminal conviction based
on hearsay evidence). Similarly, in Manchester City Council v Pinnock [2010] UKSC 45,
Lord Neuberger suggested that if the Supreme Court were bound by every ECtHR
decision, it would be ‘impractical’ and ‘it would sometimes be inappropriate, as it
would destroy the ability of the court to engage in the constructive dialogue with the
European court which is of value to the development of Convention law’ (at para.48).
In R (Hallam) v Secretary of State for Justice [2019] UKSC 2, a majority (five-to-two) of the
UK Supreme Court chose to follow its own previous precedent (in R (Adams) v Secretary
of State for Justice [2011] UKSC 18) despite a more recent ECtHR decision (Allen v United
Kingdom (2013)).
An interesting summary of the judges’ reasoning in Hallam can be found in the

following blogpost: Graham, L. ‘Hallam v Secretary of State: under what circumstances
can the Supreme Court depart from Strasbourg authority?’ (UK Constitutional Law
blog, 4 February 2019): https://ukconstitutionallaw.org/2019/02/04/lewis-graham-
hallam-v-secretary-of-state-under-what-circumstances-can-the-supreme-court-
depart-from-strasbourg-authority/
Activity 11.11
Read Masterman, R. ‘The mirror crack’d’ (UK Constitutional Law Association blog, 13
February 2013): https://ukconstitutionallaw.org/2013/02/13/roger-masterman-the-
mirror-crackd/ and answer the following questions:
a. In which circumstances does the author suggest the national courts would be
willing to depart from the Strasbourg jurisprudence?
b. Does the recent Hallam judgment reflect the views put forward in this blog
post?
Section 3 – the ‘interpretative obligation’

The courts are obliged ‘so far as it is possible to do so’ to interpret (domestic)
legislation, both primary and subordinate, in a manner which is compatible with
Convention rights.
Section 3 HRA 1998 states:
(1) So far as it is possible to do so, primary legislation…must be read and given effect in a
way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any
incompatible subordinate legislation if (disregarding any possibility of revocation)
primary legislation prevents removal of the incompatibility.
The role of the UK courts in this regard is clearly distinct from those states, including
the obvious example of the American Supreme Court but also our European
neighbours in France and Germany, in which the (Constitutional) courts have power
to strike down legislation which is incompatible with constitutionally protected
fundamental rights. Instead, the HRA 1998 was drafted so as to specifically maintain
parliamentary sovereignty. Bogdanor explains that ‘the government adopted an
ingenious method, in the Human Rights Act, of compromising between the two
principles of the sovereignty of Parliament and the protection of human rights’.
When a statute has two (or more) potential meanings or is ambiguous, the court will
choose the meaning or interpretation which is most consistent with the Convention
rights. But what happens if there is no ambiguity in a piece of legislation?
The courts have indicated that they are empowered under s.3 to be relatively ‘creative’
in their interpretation (although it remains a core principle that they must not
adopt a meaning which is inconsistent with a fundamental feature or purpose of the
legislation). It appears from some case law that the courts have thought it acceptable
to interpret legislation contrary to its clear meaning in order to ensure compatibility
with Convention rights. In R v A (No. 2) [2001] UKHL 25 it was said by Lord Steyn that:
…in accordance with the will of Parliament as reflected in section 3 it will sometimes
be necessary to adopt an interpretation which linguistically may appear strained. The
techniques to be used [by the court] will not only involve the reading down of express
language in a statute but also the implication of provisions.
In this case the House of Lords had to interpret whether s.41 of the Youth Justice
and Criminal Evidence Act 1999 (which prohibited the giving of evidence and cross
examination about any sexual behaviour of the complainant except with leave of
the court) would allow evidence to be introduced as to the previous sexual history
between the defendant and the victim where necessary to ensure the defendant’s
right to a fair trial under Article 6 ECHR. The court chose to ‘read in’ words to the
legislation in order to interpret it compatibly with the Convention rights.
Another key case in this context was Ghaidan v Godin-Mendoza [2004] UKHL 30, which
again provides a clear example of judicial creativity in interpretation under s.3 of the
HRA 1998. Here, the House of Lords interpreted the words in the Rent Act 1977 that a
‘spouse’, someone who had lived ‘as his or her wife or husband’ could be extended to
same-sex partners. This enabled compatibility with Article 8 and Article 14 of the ECHR.
Lord Steyn said:
Nowhere in our legal system is a literalistic approach more inappropriate than when
considering whether a breach of a Convention right may be removed by interpretation
under section 3. Section 3 requires a broad approach concentrating, amongst other
things, in a purposive way on the importance of the fundamental right involved.
(para.41)
This ‘broad approach’ by the House of Lords enabled the defendant to succeed to his
deceased long-term partner’s statutory tenancy (under the Rent Act 1977). In so doing,
the court departed from an earlier, pre-HRA 1998, decision in Fitzpatrick v Sterling
Housing Association [2001] 1 AC 27.
Section 4 – ‘declaration of incompatibility’

When the courts cannot interpret legislation as compatible with the Convention rights
under s.3, a declaration of incompatibility may be made by the senior courts (High
Court and above) under s.4 of the HRA 1998. The courts tend to view the issuing of a
declaration of incompatibility as an ‘exceptional course’ (for example, see Lord Steyn’s
comments in Ghaidan v Godin-Mendoza).
If the court is satisfied that the provision is incompatible with a Convention right, it
may make a declaration of that incompatibility.
It is important to understand that in relation to primary legislation, or incompatible

secondary legislation where incompatible primary legislation prevents the removal of
the incompatibility (s4(4)), a declaration is merely that – a declaration – and it does not
have effect on the validity, operation or enforcement of the provision.
A declaration under this section (‘a declaration of incompatibility’)—
(a) does not affect the validity, continuing operation or enforcement of the provision
in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
Thus, a declaration of incompatibility does not require the government or Parliament

to amend the law but it often places political pressure for the removal of the
incompatibility. One example was Bellinger v Bellinger [2003] UKHL 21 where the
question for the court was whether s.11(c) of the Matrimonial Causes Act 1973 which
required a marriage to be between a male and a female was compatible with the
Convention rights (particularly Article 8, a right to respect for one’s private and family
life and Article 12 which includes the right to marry) of Mrs Bellinger. Mrs Bellinger was
a transsexual female who had been born and registered as male at birth. The House
of Lords issued a declaration of incompatibility with respect to s.11(c) of the Act which
did not allow persons who had undergone gender reassignment to marry. The law was
subsequently changed in the Gender Recognition Act 2004.
Activity 11.12
Look up the most recent Ministry of Justice Report to the Joint Committee on
Human Rights on the government’s response to human rights judgments and
answer the following questions.
a. How many declarations of incompatibility were made by the UK courts in the
period covered by the report?
b. How many outstanding declarations exist where the government has yet to
remedy the incompatibility?
There is also a special ‘fast-track’ or expedited procedure contained in s.10 of the HRA
1998 – ‘power to take remedial action’ – to enable government ministers to amend
the law through a ‘remedial order’. This extends to making amendments to primary
legislation (under s.3(b) if the minister ‘considers…that there are compelling reasons
for proceeding under this section’) and so provides us with an example of a ‘Henry VIII
clause’ (discussed in Chapter 8 on legislation).
It is, however, reassuring from the perspective of transparency and democratic

accountability that the vast majority of amendments which occur in response
to declarations of incompatibility are made by the enactment of new legislative
provisions by Parliament rather than by ministers via the s.10 expedited procedure.
It is also important to understand that even though in the vast majority of instances
where a declaration of incompatibility has been made in relation to primary legislation
and the statute will ultimately be amended or repealed, this does not provide a
‘remedy’ to the applicant. Thus, in order to pursue a remedy and seek redress for the
infringement of Convention rights it is necessary to proceed to the ECtHR to seek a
remedy. Note that this is only possible once domestic remedies have been exhausted –
so, for example, when the case cannot be appealed.
There are also occasions where the courts, despite having found an incompatibility,
might exercise their ‘discretion’ (under s.4(5)) not to make a declaration of it. One
example (which is also a part of the prisoner voting saga – discussed further on
the VLE) was the decision of the Supreme Court in R (on the application of Chester)
v Secretary of State for Justice; McGeoch v Lord President of the Council and Another
[2013] UKSC 63 not to issue a declaration of incompatibility in relation to s.3 of the
Representation of the People Act 1983 which disenfranchises prisoners. Prior to this
there had been ECtHR decisions which confirmed that the blanket ban on prisoner
voting was incompatible with Article of Protocol 1 and the Scottish Court of Session
had already issued a declaration of incompatibility in Smith v Scott [2007] SCC 345.
Another example was R (Nicklinson) v Ministry of Justice [2014] UKSC 38 on the highly
emotive and controversial matter of whether the law preventing assisted suicide and
the Director of Public Prosecutions’ guidelines on prosecution were compatible with
the right to life. Here, the Supreme Court was divided on whether or not a declaration
should be made and additionally several Justices suggested that it was a matter to be
more appropriately dealt with by the legislature than the judiciary.
Ultimately, after ‘exhausting’ domestic remedies, the option remains for an individual
to bring their case to the ECtHR.
Section 6 – public authorities

Section 6 makes it unlawful for ‘public authorities’, including the courts, to act in
a manner which is incompatible with Convention rights unless primary legislation
dictates otherwise. This requirement upon public authorities gives expression to
the UK’s obligation under Article 1 of the ECHR to ‘secure to everyone within their
jurisdiction the rights and freedoms defined in…this Convention’.
The definition of what constitutes a ‘public authority’ is therefore of particular

importance and, while the ‘core’ public authorities are easily identified, the definition
can also extend to some private bodies, such as care homes or hospitals, when they
are exercising functions of a public nature. The difficulties of definition came to the
fore in YL v Birmingham City Council [2007] UKHL 27. This case concerned a care home
run by a private company which had publicly funded residents (i.e. paid for under
a contract with a local authority). The House of Lords held by a majority of 3-2 that,
despite the fact that most of the residents of the care home were placed there by local
authorities, this did not make the care home a public authority for the purpose of s.6
of the HRA 1998.
Following this decision, legislation – the Health and Social Care Act 2008 – was
enacted. Via s.145, it essentially reversed the decision in YL by providing that privately
run care homes would be treated as public authorities for the purposes of the HRA
1998 where they provided care on behalf of public bodies.
Activity 11.13
Read the article ‘A difference of opinion’ in the New Law Journal:
www.newlawjournal.co.uk/content/difference-opinion
Section 6(3) ‘does not include either House of Parliament or a person exercising
functions in connection with proceedings in Parliament’. Therefore, Parliament
remains free to enact laws which infringe an individual’s rights (if it chooses to do
so) as the legislative sovereignty of Parliament is retained. As we have seen in the
discussion above, the courts do not have the power or authority to strike down or
invalidate primary legislation which infringes rights. They have two options in such
instances: first, they have the power (under s.3) to interpret laws wherever possible
to make them compliant with the Convention rights, which might mean adopting
a purposive or teleological approach to interpretation. Secondly, if this is not
possible the courts may issue a ‘declaration of incompatibility’ under s.4 of the Act.
Remember that this is merely a declaration and does not impose any legal obligation
on Parliament to amend to law although, of course, such a declaration is politically

significant. As such, it demonstrates that, while there might be no legal limits on
Parliament’s sovereignty, there are indeed practical and political constraints.
Section 7 – Standing under the Human Rights Act 1998

Who can bring an action under the HRA 1998? In other words, who has standing or a
‘sufficient interest’?
The HRA 1998 introduced a different test of standing than existed previously at
common law. Under s.7 a claim may be brought only by a ‘victim’ of the act within the
meaning of Article 34 ECHR (see below). In accordance with the case law of the ECtHR,
this does not allow for cases to be brought by pressure groups or representative
associations unless they are themselves ‘victims’ or ‘would be’ (potential) victims of a
breach of the Convention rights.
Article 34 ECHR:
The Court may receive applications from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the protocols thereto. The
High Contracting Parties undertake not to hinder in any way the effective exercise of this
right.
Note also that core public authorities cannot be victims.
Section 19 – Statements of compatibility

Section 19(1):
A Minister of the Crown in charge of a Bill in either House of Parliament must, before
Second Reading of the Bill—
(a) make a statement to the effect that in his view the provisions of the Bill are
compatible with the Convention rights (‘a statement of compatibility’); or
(b) make a statement to the effect that although he is unable to make a statement of
compatibility the government nevertheless wishes the House to proceed with the Bill.
This is largely a procedural step but one which arguably adds an extra element of
scrutiny by Parliament and requires extra consideration on the part of government.
Section 19 requires the sponsoring minister for every government Bill to make a
statement to Parliament before the Bill’s second reading about its compatibility
with the Convention rights. This statement will either be that the Bill is thought
to be compatible or that, although a statement of compatibility cannot be made,
the government nevertheless wishes the House to proceed with the Bill. The
Communications Bill, which became the Communications Act 2003, had the latter
statement attached, that is, that the minister was unable to make a statement of
compatibility but that they wished to proceed regardless. In the end, the particular
provision which was thought to be incompatible was not, according to a subsequent
case before the House of Lords (and ultimately also before the ECtHR).
There are differing views about the usefulness of these ‘statements of compatibility’
and it is certainly true that they are no guarantee that the draft law is indeed
compatible with the Convention rights. For example, the Terrorism Bill (later the
Terrorism Act 2000) had a statement of compatibility but was later found to have
incompatible provisions. Also, the Anti-terrorism, Crime and Security Act 2001,
discussed earlier in relation to the indefinite detention of foreign nationals suspected
of involvement in terrorism, also had a statement of compatibility.
As noted above, the main advantage of s.19 might be that there is an added stage in
the process. This considers the effect of the legislation on human rights, although to
what extent this makes a difference is debatable, given the examples just mentioned.
11.7 Parliamentary and external scrutiny
11.7.1 Joint Committee on Human Rights

The Joint Committee on Human Rights is composed of members from both the House
of Commons and the House of Lords, generally to examine matters relating to human
rights within the UK. The Committee’s work includes scrutinising every government
Bill for its compatibility with human rights, including: the rights under the ECHR
protected in UK law by the HRA 1998; common law fundamental rights and liberties;
and the human rights contained in other international obligations of the UK.
Activity 11.14
Please look at the webpage for the Joint Committee on Human Rights: www.
parliament.uk/business/committees/committees-a-z/joint-select/human-rights-
committee/ and answer the following questions.
a. How many members does the Committee have?
b. What is its role in relation to adverse human rights judgments in or against the UK?
11.8 Devolution and the Human Rights Act 1998

The 1998 devolution legislation – Scotland Act 1998, Northern Ireland Act 1998 and
Government of Wales Act 1998 – requires the devolved legislatures to comply with
the Convention rights. This places them in a different position to the sovereign
Westminster Parliament. By virtue of s.21 of the HRA 1998, legislation passed by the
devolved legislatures is treated as secondary legislation. For example, as a subordinate
rather than sovereign legislature, the Scottish Parliament is bound by the ECHR and
therefore if the courts rule that an Act of the Scottish Parliament conflicts with the
ECHR, it becomes void.
A further complication arises as a consequence of the commitment in the Belfast or

Good Friday Agreement to ensure compliance with the ECHR. For some discussion of
this aspect, see the following Institute of International and European Affairs blog post,
‘Brexit, the Good Friday Agreement and the European Convention on Human Rights’
(9 January 2017): www.iiea.com/brexit/brexit-the-good-friday-agreement-and-the-
european-convention-on-human-rights/ When reading through this blog, note that
other matters have changed since it was written.
11.9 Proposals for reform – a British Bill of Rights?

First, it is worth understanding that there is no requirement under the ECHR that
Member States should incorporate the ECHR into domestic law. For further discussion
on this see: Fenwick, H. ‘The Conservative stance in the 2015 election on the UK’s
relationship with the Strasbourg Court and its jurisprudence – bluff, exit strategy
or compromise on both sides? (Part I)’ (UK Constitutional Law blog, 10 March 2015):
https://ukconstitutionallaw.org/2015/03/10/helen-fenwick-the-conservative-stance-in-
the-2015-election-on-the-uks-relationship-with-the-strasbourg-court-part-i/
From the outset, there was opposition to the Human Rights Bill from various quarters.
Arguments ranged from it being unnecessary to concerns about passing excessive
power to the judiciary. Ultimately, in Parliament the Bill received cross-party support.
At various times over the past 20 years suggestions for repeal or reform have been put
forward, most often, but not exclusively, by Conservative Party politicians.
One aspect in particular, which has led to both acclaim and criticism, is the treatment
(by the courts) of the Convention as a ‘living instrument’. For some this has resulted in
unexpected and unwarranted extensions of the existing rights, but for others this has
enabled the law to evolve with changes in society.
In July 2007 (under Gordon Brown as Prime Minister), the Governance of Britain Green
Paper set out a tranche of proposals for constitutional reform. One of these was that:
A British Bill of Rights and Duties could provide explicit recognition that human rights
come with responsibilities and must be exercised in a way that respects the human
rights of others. It would build on the basic principles of the Human Rights Act, but
make explicit the way in which a democratic society’s rights have to be balanced by
obligations.
In 2010 the Conservative Party Manifesto committed to repeal of the HRA 1998. In 2011
the coalition government established a Commission on a Bill of Rights which reported
in 2012 but failed to reach consensus and the reforms were waylaid. For a brief
summary, see: ‘UK Bill of Rights Commission fails to reach consensus’ The Guardian (18
December 2012): www.theguardian.com/law/2012/dec/18/uk-bill-of-rights-commission
Again in 2015 the Conservative Party Manifesto explicitly committed to repeal of the
HRA 1998, but in 2017 these proposals were delayed pending Brexit.
11.9.1 Recent developments

In 2019 in the Joint Political Declaration the following was included:
The future relationship should incorporate the United Kingdom’s continued

commitment to respect the framework of the European Convention on Human
Rights (ECHR), while the Union and its Member States will remain bound by the Charter
of Fundamental Rights of the European Union, which reaffirms the rights as they result in
particular from the ECHR.
(‘Political Declaration setting out the framework for the future relationship between the
European Union and the United Kingdom’ (19 October 2019))
Following the most recent general election in December 2019, there has been an
announcement, in the Queen’s Speech, that ‘A Constitution, Democracy and Rights
Commission will be established.’
This will presumably take forward the commitment in the 2019 Conservative
Party Manifesto to ‘update the Human Rights Act…to ensure that there is a proper
balance between the rights of individuals, our vital national security and effective
government’.
The House of Commons Public Administration and Constitutional Affairs Committee

(PACAC) started an inquiry in the autumn of 2020 to consider ‘The Government’s
Constitution, Democracy and Rights Commission’ and has held some evidence sessions
with witnesses including the current Lord Chancellor, the Rt Hon Robert Buckland QC
MP. You might like to look at some of this: https://committees.parliament.uk/work/608/
the-governments-constitution-democracy-and-rights-commission/
It is interesting to observe that when discussions arise with regard to repeal or reform
of the HRA 1998, this is generally with a view to replacing it – usually with a ‘British
Bill of Rights and Responsibilities’ – rather than removing it. Finally, as the UK was so
heavily involved in drafting the original ECHR it is perhaps difficult to envisage how
distinct (in terms of substantive content) a ‘British Bill of Rights’ would be. The real
difference may lie in the role the judges would have under a reformed Bill of Rights.
Further reading
¢ Report of the Commission on a Bill of Rights ‘A UK Bill of Rights? The
choice before us’ (18 December 2012): www.gov.uk/government/
news/a-uk-bill-of-rights-the-choice-before-us

This is the final chapter in the module guide and as you work through the checklist
below you might also want to look back over where human rights link to other
previous sections.
Please consult the checklist below to determine if you have completed this section.
Have you:
u looked at the extra resources/case studies on the VLE?

Questions around human rights can be linked into a variety of other topics, from
judicial review to the relationship between different branches of government. It is
likely that an essay on human rights will draw heavily upon case law. You will also need
to demonstrate a solid understanding of the relevant provisions of the HRA 1998 and
the ECHR.
Notes
Feedback to activities
Contents
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Public law Feedback to activities page 129
Chapter 2
Activity 2.1
No feedback provided – the task is intended to encourage independent research skills.
Activity 2.2
No feedback provided – the task is designed to encourage early critical analysis.
Activity 2.3
The key point to convey is the likelihood of an increased role for the judiciary, not least
in terms of interpretation of the constitution. You will form your own view (informed
by readings) as to whether or not you think this would be a positive change.
Activity 2.4
No feedback provided – the task is intended to help encourage independent research
skills.
Activity 2.5
No feedback provided.
Activity 2.6
There are no strictly right or wrong answers and there are several ways in which such a
question might be approached. The key point here is to ensure that you have begun to
think about the differences and significance of a range of sources – some of the most
obviously important sources are statute and common law (legal) and conventions
(non-legal).
Chapter 3
Activity 3.1
No feedback given.
Activity 3.2
a. The turnout was 84.6 per cent of the electorate
b. The further powers to be devolved were:
u stamp duty land tax and landfill tax
u extending borrowing powers
u new capital borrowing power
u Scottish rate of income tax.
c. No feedback provided.
Activity 3.3
You will form your own views but it is likely that the prominence of the Scottish
National Party (SNP) in Scottish politics and the number of seats it won in the most
recent general election in December 2019 (47 seats compared with six for the Scottish
Conservatives, four for the Liberal Democrats and one seat for Labour) means that the
question of a second referendum will continue to be raised.
Activity 3.4
The role of the Secretary of State for Northern Ireland was slightly different, in that
it had a statutory responsibility for dealing with legislation emanating from the
Northern Ireland Assembly. The Devolution Guidance Notes viewed the role as that
of ‘an honest broker’ in relations between the Northern Ireland Executive and UK
Government.
Chapter 4
Activity 4.1
You will have been directed to Erskine May. The ‘enacting formula’ under a piece of
legislation passed under the Parliament Act procedure is as follows:
Be it enacted by the [Queen’s] most Excellent Majesty, by and with the advice and consent
of the Commons in this present Parliament assembled, in accordance with the provisions
of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows …
The difference is that the House of Lords is not mentioned as that Chamber has not
agreed to the legislation.
Activity 4.2
Activity 4.3
Those in bold had a background in law.
The Rt Hon Charlie Falconer PC, QC (2003–2007) – barrister
The Rt Hon Jack Straw (2007–2010) – barrister
The Rt Hon Kenneth Clarke QC (2010–2012) – barrister
The Rt Hon Chris Grayling MP (2012–2015)
The Rt Hon Michael Gove MP (2015–2016)
The Rt Hon Elizabeth Truss MP (2016–2017)
The Rt Hon David Lidington MP (2017–2018)
The Rt Hon David Gauke MP (2018–2019) – solicitor
The Rt Hon Robert Buckland QC MP (2019–) – barrister
Activity 4.4
Sub-rules 1, 2, 6 and 7.
1. The law must be accessible and so far as possible intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of

the law and not the exercise of discretion.
6. Means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide civil disputes which the parties themselves are unable to resolve.
7. Adjudicative procedures provided by the state should be fair.
Activity 4.5
Sub-rules 5 and 8.
5. The law must afford adequate protection of fundamental human rights.
8. The rule of law requires compliance by the state with its obligations in
international law as in national law.
Activity 4.6
As stated, the formal conception of the rule of law, as with the principle of legality,
would not necessarily prevent a government passing ‘bad’ or ‘immoral’ laws which
interfere with individual rights. Such laws could fulfil the criteria of being ‘open,
prospective and clear’. So, a state could pass laws which were vehemently opposed
to equality, went against the protection of rights and fairness, etc., but these could
still fully comply with the requirements of the formal conception of the rule of law.
The substantive conception has its own difficulties, in particular relating to the lack of
universal agreement on matters such as morality and fundamental rights – there will
always be an element of subjectivity in relation to some matters and this can give rise
to disagreement.
Activity 4.7
a. Enacting a law authorising a new tax is a legislative function.
b. Operating the machinery for assessing and collecting the tax payable by each
taxpayer is an executive (or administrative) function.
c. Determining disputes between the taxpayer and the tax collector as to the tax in a
particular case is a judical function (interpreting law and applying to the facts).
Activity 4.8
The Lord Speaker is currently The Rt Hon the Lord Fowler.
Activity 4.9
a. The answer to this can be found on the Parliament website – please see the House
of Commons Research Briefing: https://commonslibrary.parliament.uk/research-
briefings/sn01141/ in particular at p.5: ‘The sub judice rule is necessary not only
to preserve proper relations between courts and Parliament, but to ensure that
trials are not prejudiced by parliamentary comment’. There is an obvious risk that
an MP’s comments, which are likely to be reported widely in the media, might
prejudice a fair trial.
b. The application of the rule is subject to the discretion of the Speaker. The Speaker
and Lord Speaker (in the House of Lords) do have the discretion to waive this
rule in the national interest. See Erskine May: https://erskinemay.parliament.uk/
section/5176/matters%20sub%20judice/ which states:
In general, the House abstains from discussing the merits of disputes about to be tried
and decided in the courts of law. The sub judice rule is not absolute. The Lord Speaker
exercises a general power of waiver and also a power of waiver in specific circumstances…
Activity 4.10
Chapter 5
Activity 5.1
As explained on the Parliament website, Orders in Council are made by the Queen
acting on the advice of the Privy Council and are approved in person by the monarch.
Orders of Council, however, are made by the Privy Council itself, acting through its
Councillors and differ from Orders in Council as they do not require personal approval
by the monarch.
Activity 5.2
Activity 5.3
Activity 5.4
The relevant statute is the Constitutional Reform and Governance Act 2010.
The explanatory notes to this legislation explain that:
Part 2 of this Act puts Parliamentary scrutiny of treaty ratification on a statutory footing
and gives legal effect to a resolution of the House of Commons or Lords that a treaty
should not be ratified. This means that should the House of Commons take the view that
the Government should not proceed to ratify a treaty, it can resolve against ratification
and thus make it unlawful for the Government to ratify the treaty. The House of Lords
will not be able to prevent the Government from ratifying a treaty, but if they resolve
against ratification the Government will have to produce a further explanatory statement
explaining its belief that the agreement should be ratified.
You can read more about this in the House of Commons Library Briefing Paper, ‘The
Royal Prerogative’ (No. 03861, 17 August 2017).
Activity 5.5
This activity was designed to encourage you to read and think critically about more
complex issues. There are a range of legitimate views but whichever one is adopted in
your answer, it is crucial that this is supported (by authority) and explained.
Activity 5.6
a. Appointment of a Prime Minister (sovereign’s constitutional prerogatives).
b. The right to sturgeon (legal prerogatives of the Crown).
c. Deployment of the armed forces (prerogative executive powers).
Activity 5.7
Chapter 6
Activity 6.1
An appropriate answer might be one of the following:
‘The Prime Minister is the Sovereign’s principal adviser, chairs Cabinet and has overall
responsibility for the organisation of government.’ (Introduction, p.3, para.13, The
Cabinet manual, HMG)
‘The Prime Minister is head of the Government by virtue of his or her ability to
command the confidence of the House of Commons. He or she is appointed by the
Sovereign and in turn recommends to the Sovereign the appointment of ministers to
the Government.’ (Introduction to Chapter 3, The Cabinet manual, HMG, p.20)
Activity 6.2
‘The Cabinet is the team of 20 or so most senior ministers in the Government who are
chosen by the Prime Minister to lead on specific policy areas such as Health, Transport,
Foreign Affairs or Defence.’ See: www.parliament.uk/site-information/glossary/cabinet/
Activity 6.3
Answers will depend on the current composition of government. The majority of
cabinet ministers have seats in the Commons (an obvious exception is the Leader of
the House of Lords).
Chapter 7
Activity 7.1
Feedback to this activity will be made available on the VLE.
Activity 7.2
a. Parliamentary Voting and Constituencies Act 2011 (specifically s.1).
b. The result of the referendum was that 67.9 per cent of voters opposed changing
the electoral system to the alternative vote.
For further detail see: www.bbc.co.uk/news/uk-politics-13297573 and https://

researchbriefings.parliament.uk/ResearchBriefing/Summary/RP11-44
Activity 7.3
a. Leader of the House of Commons (from government)
u Government minister whose main role is organising government business in

the Commons.
u Does this by working closely with the government’s Chief Whip.
b. Speaker of the House of Commons (elected by House) and assisted by Deputy

Speakers
u Regulates the proceedings of the Commons.
u Representative of the Commons in relations with the Crown, the House of

Lords and other bodies outside Parliament.
u The Speaker must act with political impartiality.
c. Chief Whip
u Official title is Parliamentary Secretary to the Treasury.
u Member of Government responsible for administering the whipping system

that ensures that members of the party attend and vote in Parliament
as the party leadership desires. See: www.gov.uk/government/ministers/
parliamentary-secretary-to-the-treasury-and-chief-whip
The Leader of the House of Commons and the Chief Whip are both members of the
government but the Speaker of the House of Commons is not.
Activity 7.4
No specific feedback but discussed later in the chapter.
Activity 7.5
Expected answers would include reference to the fact that the existence of the cross-
benchers and lack of government majority in the House of Lords tends to lead to less
partisan and more independent thinking and debate.
Activity 7.6
Government of Ireland Act 1914; Welsh Church Act 1914; Parliament Act 1949 (under
1911 Act). A further four acts have been passed since the 1949 Act – War Crimes Act 1991;
European Parliamentary Elections Act 1999; Sexual Offences (Amendment) Act 2000;
and Hunting Act 2004.
Chapter 8
Activity 8.1
Your answer will depend on the research and reading you have done, but examples are
likely to include the High Speed Rail (HS2) Bills or Crossrail Bills.
Activity 8.2
Your answer will depend on the session of Parliament but the answer can be found
here: www.parliament.uk/business/bills-and-legislation/draft-bills/
Activity 8.3
The UK Parliament glossary describes a sunset clause as:
A provision in a Bill that gives it an expiry date once it is passed into law. Sunset clauses are
included in legislation when it is felt that Parliament should have the chance to decide on
its merits again after a fixed period.
Activity 8.4
Activity 8.5
a. The enabling Act is the European Union (Withdrawal Agreement) Act 2020 (as per
the introductory text: ‘The Secretary of State, in exercise of the power conferred by
section 42(7) of the European Union (Withdrawal Agreement) Act 2020(1)’).
b. According to the SI’s Explanatory Memorandum:
The purpose of this instrument is to allow same-sex couples in Northern Ireland and under
Northern Ireland law to form a civil marriage and opposite-sex couples to register a civil
partnership. It provides such couples with a range of associated rights and entitlements,
ensuring that these relationships are recognised throughout the Northern Ireland statute
book, in particular in relation to pensions and social security, but also in relation to
children and families, and gender recognition. It also provides for how equivalent overseas
relationships should be treated in Northern Ireland.
The enabling Act was the Northern Ireland (Executive Formation etc) Act 2019 (‘The
Secretary of State makes these regulations in exercise of the powers conferred by
sections 8 and 11 of the Northern Ireland (Executive Formation etc) Act 2019’).
Chapter 9
Activity 9.1
a. It will make the Supreme Court visible and separately identifiable. Confusion
between the House of Lords in its legislative capacity and in its judicial capacity
should no longer exist.
b. Middlesex Guildhall.
Activity 9.2
a. There was particular concern over the Nat Fraser case, as well as an increase in the
number of Scottish cases reaching the Supreme Court.
b. The (Scottish) Justice Secretary threatened to cut Scottish funding of the

Supreme Court. Clearly the threat was made in response to political pressures and
arguments over Scottish independence. However, it is surely improper to threaten
judges with a loss of funding rather than attempt to win the political argument for
independence.
Activity 9.3
a. ‘Both Houses of Parliament have the power to petition The Queen for the removal
of a judge of the High Court or the Court of Appeal. This power originates in the
1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court
Act 1981. It has never had to be exercised in England and Wales.’
b. ‘The prohibited matters include: the merits of government policy (save where the
policy in question affects the administration of justice within a judge’s particular
area of judicial responsibility); the merits of individual cases or decisions (although
particular trials may be used as examples of practice when discussing general
policy issues) or of particular serving judicial officers, politicians and other public
figures, and the merits, meaning or likely effect of provisions in prospective
legislation (in such a way as could be seen to call into question his or her judicial
impartiality); and the administration of justice which falls outside his or her area of
judicial responsibility or previous responsibility.’
Activity 9.4
Activity 9.5
Your answer will depend on which update has been read. For example, in the January
2020 update the following were highlighted: equal merit provisions extended to the
shortlisting stages of selection exercises; the extension of name-blind shortlisting;
and almost 200 lawyers from underrepresented groups allocated places on the pre-
application judicial education (PAJE) programme.
Activity 9.6
Chapter 10
Activity 10.1
The need to seek the permission of the court to bring a claim for judicial review acts
as a filter to weed out vexatious claims with no foundation, thus helping to protect
public bodies and facilitate good administration as well as saving court time. Time
limits are also important to protect the administration and enable reliance upon
decisions.
Activity 10.2
In s.84(1)(2B) the court ‘may disregard’ these ‘requirements…if it considers that it is
appropriate to do so for reasons of exceptional public interest’.
Activity 10.3
See in particular paras 80 to 82 of the judgment below.
80. We must first consider the question of standing to bring to this claim. The Defendants
insist that the Claimant lacks a sufficient interest in the subject matter and therefore has
no standing (locus standi).
81. A claimant in an application by way of judicial review must have ‘sufficient interest in
the matter to which the application relates’ (section 31(3) of the Senior Courts Act 1981).
The phrase ‘sufficient interest’ has traditionally been given a wide meaning. The direction
of travel of the authorities since the landmark case of Turner v Secretary of State of the
Environment (1973) 28 P & CR 123 (Ackner J) has been an increasingly catholic view of locus
standi (see e.g. R (Residents Against Waste Site Ltd) v Lancashire County Council [2007] EWHC
2558 (Admin)).
82. It is fair to say that the relationship of Mr Nicolay and the other collateral relatives to
their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage. The
Claimant’s interest – indeed, that of the 16th, 17th and 18th generation descendants – may
not suffice for personal standing. However, the points raised have a broader public
interest sufficient for the Claimant to have standing in this case as a public interest
litigant.
Further reading
Related news reports and blog posts (which might be helpful to furthering your
understanding of the judgments):
u www.bbc.co.uk/news/uk-england-23726011
u www.bbc.co.uk/news/uk-england-24578625
u http://ukhumanrightsblog.com/2013/08/22/
they-paved-plantagenet-n-put-up-a-parking-lot/
u http://ukhumanrightsblog.com/2013/10/23/
richard-iii-on-the-move-again-pitched-into-the-current-judicial-review-debate/
u https://ukconstitutionallaw.org/2013/08/29/
tom-hickman-the-high-court-rides-to-the-aid-of-richard-iii/
Activity 10.4
There is a delicate balance to be struck between adopting a liberal approach to
standing with a view to ensuring that the rule of law is upheld and that serious
illegalities do not go unchallenged and having an overly ‘open’ approach to standing
which runs the risk of enabling ‘political’ challenges. This was discussed in some detail
in a blog post in English, R. ‘Judicial review is not “politics by another means”’ (UK
Human Rights blog, 9 March 2019): https://ukhumanrightsblog.com/?s=%E2%80%98Ju
dicial+review+is+not+%E2%80%9Cpolitics+by+another+means%E2%80%9D%E2%80%99
in which R (on the application of Wilson and Others) v Prime Minister [2019] EWCA Civ 304
was analysed.
Chapter 11
Activity 11.1
Activity 11.2
If you look at how the two covenants are worded, you can see differences in the
obligations that they create and a different emphasis. Under the ICCPR, each state
undertakes to respect and to ensure the rights. However, under the ICESCR, each state
undertakes to take steps, to the maximum of its available resources, with a view to
achieving progressively the full realisation of the rights.
Activity 11.3
a. The Convention was originally proposed by Winston Churchill and drafted mainly
by British lawyers.
b. It protects the human rights of people in countries that belong to the Council of
Europe.
Activity 11.4
Tim Eicke.
Activity 11.5
Activity 11.6
The Council of Europe has 47 members (or high contracting parties) which include all
of the EU Member States but also many more countries. This is the body which drafted
the European Convention for the Protection of Human Rights and Fundamental
Freedoms (the ECHR) and the relevant court is the European Court of Human Rights
(ECtHR) in Strasbourg.
The European Union, on the other hand, is a supranational organisation with 27

Member States (28 before the UK’s Brexit in 2020) and its origins are predominately
economic. The CJEU (Court of Justice of the European Union) is based in Luxembourg.
Activity 11.7
a. Key difficulties were the length of time (on average five years) and cost (at that
time an average of £30,000).
b. It was argued that:

people will be able to argue for their rights in the British courts – without this
inordinate delay and cost. It will also mean that the rights will be brought much
more fully into the jurisprudence of the courts throughout the United Kingdom, and
their interpretation will thus be far more subtly and powerfully woven into our law.
And there will be another distinct beneﬁt. British judges will be enabled to make a
distinctively British contribution to the development of the jurisprudence of human
rights in Europe. (See para.1.14)
Activity 11.8
Activity 11.9
Articles 1 and 13 of the ECHR are not included in the HRA 1998. This is because by
introducing the HRA 1998 the UK has fulfilled these rights. Article 1 says that states
must secure the rights of the Convention in their own jurisdiction and the HRA 1998 is
the main way of doing this for the UK. Article 13 makes sure that if people’s rights are
violated, they are able to access effective remedy. This means they can take their case
to court to seek a judgment. The HRA 1998 is designed to make sure this happens.
See: www.equalityhumanrights.com/en/human-rights/human-rights-act
Activity 11.10
No feedback provided. This reading task is intended to deepen your understanding of
the issues.
Activity 11.11
a. It is suggested that:
…in HRA adjudication relevant and applicable Strasbourg jurisprudence should be

presumptively followed unless:
1. Its application would compel a conclusion which would be ‘fundamentally at

odds’ with the United Kingdom’s separation of powers…
2. ‘Special circumstances’…justify a departure…
3. The court can think of a ‘good reason’ that the Strasbourg jurisprudence not be
applied…
4. It is ‘reasonably foreseeable’ that the European Court of Human Rights would now
come to a different conclusion than in the available authorities…
5. The question to be resolved is one for domestic authorities to ‘decide for

themselves’…
6. The area is governed by common law and the court is minded to exercise its
discretion to depart from the Strasbourg line…
7. The court attaches ‘great weight’ to a legislative decision which determines

the balance to be struck between rights and interests in a way which might be
interpreted as being inconsistent with Strasbourg authority…
8. The Strasbourg case-law is past its use-by date…
9. The domestic court prefers to follow non-Strasbourg authority…
10. The judge/court regards the Strasbourg jurisprudence as being not ‘particularly
helpful’…
11. The Strasbourg authority is wrong (or…‘inconsistent with some fundamental

substantive or procedural aspect of our law’)…
12. The Convention case-law is badly-informed (or…‘appear[s] to overlook or

misunderstand some argument or point of principle’)…
13. The court wishes enter into a ‘dialogue’ with the European Court of Human Rights
(on the basis that the applicable case law may be wrong or badly-informed or
both)…
b. Note that in Hallam the UK Supreme Court chose to follow its own previous
decision, despite a more recent ECtHR decision.
Activity 11.12
a. The domestic courts made two declarations of incompatibility under s.4 of the HRA
1998 during this period.
b. Since the HRA came into force in October 2000, a total of 42 declarations of
incompatibility have been made. Of these 42, 10 have been overturned on appeal
(and there is no scope for further appeal); five related to provisions that had
already been amended by primary legislation at the time of the declaration; two
are currently subject to appeal; six have been addressed by Remedial Order; 11 have
been addressed by later primary or secondary legislation (other than by Remedial
Order); one has been addressed by various measures; the government has notified
Parliament that it is proposing to address two by Remedial Order; and five are
under consideration.
Activity 11.13
No feedback provided. This reading task is intended to deepen your understanding of
the issues.
Activity 11.14
a. Currently, there are 12 Committee members.
b. The Committee’s work includes scrutinising the government’s response to court

judgments concerning human rights, and the UK’s compliance with its human
rights obligations contained in a range of international treaties.
University of London page 139
Notes
Notes
University of London page 141
Notes

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Public law

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

Published by: University of London

Part I The UK constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 Introducing public law . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2 The UK constitution: introduction . . . . . . . . . . . . . . . . . . . . 9

3 Multi-layered government: devolution in the UK . . . . . . . . . . . . 17

Part II Institutions of government – powers and functions . . . . . . . . . 49

5 The Crown, monarch and the royal prerogative powers . . . . . . . . . 51

Part III Administrative law (legal accountability via judicial review) . . . . 91

Part IV Civil liberties and human rights . . . . . . . . . . . . . . . . . . 107

11 Human rights in the UK . . . . . . . . . . . . . . . . . . . . . . . . . 109

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

4. Evaluate suggestions for constitutional reform in the United Kingdom.

LEARNING OUTCOMES: SKILLS

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

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

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

BENCHMARK FOR LEARNING OUTCOMES

c. Multi-layered governance. UK constitutional law. Devolution.

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

e. Human rights. Human rights protection. HRA jurisprudence.

LEARNING AND TEACHING

The Laws Virtual Learning Environment

u a module page with news and updates;

u a complete version of the module guides;

u online audio presentations;

u past examination papers and reports;

The Online Library

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u links to important websites.

Summative assessment is through a three hour and 15 minute unseen examination.

1.1 What is public law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.2 Overview of the module . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.3 Study materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4 Hints and tips for studying public law . . . . . . . . . . . . . . . . . . . 7

1.5 Preparing for the examination . . . . . . . . . . . . . . . . . . . . . . 7

1.1 What is public law?

It is important, at the outset, to recognise and, throughout your studies, to remember

1.2 Overview of the module

u the United Kingdom constitution: sources, principles and structure

u institutions of government: powers, functions and accountability

u administrative law and judicial review

u civil liberties and human rights.

1.3 Study materials

How to use the module guide

¢ Loveland, I. Constitutional law, administrative law, and human rights: a critical

¢ Parpworth, N. Constitutional and administrative law. (Oxford: Oxford University

¢ Jowell, J. and C. O’Cinneide The changing constitution. (Oxford: Oxford University

¢ King, A. The British constitution. (Oxford: Oxford University Press, 2010)

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

1.4 Hints and tips for studying public law

1.5 Preparing for the examination

2.1 Defining constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . 11