Constitutional Law


Parliamentary Sovereignty - Model 1 - Wade

1. No entrenchment - Courts must enact mst recent legislation (cf Thoburn [2002] "metric martyrs" 

2. Continuing Sovereignty (cannot be pure, as parl. cannot entrench, thus there is something parl. cannot do) 

3. Almost exclusivly histroical explanation

4. Doesn't fit with parl. limiting itself through ECA 72 and HRA 98

5. Hunting Act 2004 contravenes Wades Rule of Recognition as no HoL approval

6. Factortame had domestic law disapplied, doesn't fit - Wade claims "judicial revolution" even though court technically followed UK Law (ECA 72: section 2(2) for Government ministers to lay regulations before Parliament to implement required changes to UK law (for example, Decisions of the European Court of Justice andEU Directives). It also provides in section 2(4) that all UK legislation, including primary legislation (Acts of Parliament) shall have effect "subject to" directly applicable EC Law)

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PS - Model 2 - "New View"

1. Contingent Entrenchment - "acts can be made harder to repeal or amend" 

2. Allows hierachy, and constitutional safeguards

3.  Courts have followed latest act wehther or not it has been enacted according to previous act (Vauxhall Estates Ltd [1932] per Maugham and Thoburn per Laws) 

4. Hale ("redefines downwards") and Steyn in Jackson [2004] suggested it could be made harder to amend/repeal legislation 

5. Argues EU law would be circumvented with express language - supported by Denning in McCarthys v Smith [1961] but not by the EU Costa v Enel [1964]

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PS - Model 3 - Allan (RoL > PS)

1. Highlights importance of real world compliance

2. Lord Phillips says courts will protect citizens ("Inconcievable" interview) 

3. Supported by HRA 98, ECA 72, Factortame [2001] and Ansiminic [1968]

4. Most comfortable with EU Law - especially S3 of HRA

5. PS is dead but not buried: ECA can still be repealed to restore sovereignty 

6. Lord Hope in Jackson: no parliament can bind its successors 

7. Courts tend to support Rule of Law when interpreting statutes - Pierson [1998] where Steyn said parliament does not legislate in a vacuum, so courts approch legislation with a presumptiuon parliaments intends it to be morally acceptable 

8. Steyn in argued PS relies on judicial recognition of it (Jackson) - said some constitu. fundamentals cannot be abolished. Argued Pure PS is out of place with modern britain.

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Legislative Scrutiny

Limitations: Whips, Executive Majority in Parliament (Elective Dictatorship?), Limited Time to do So (especially, time wasting tactics and point scoring in Question Time), Secondary Legislation, Committee recomendations not binding 


1. Pre-Legislative Scrutinty - anciallary docs, internal legal scrutiny, draft bills 

2. First Reading - mere formality 

3. Second Reading - vote, debate, nearly all pass

3. Public Bill Committee Stage - debate, amendments, subject to whips 

4. Report Stage - debate, amendments

5. Third reading - pat on back session

6. HoL debate, discussion, amendments 

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House of Lords Reform

However, it is worth noting that the HoL can no longer veto money bills (just a one month delay) or any other bill (a one year delay). Parliamentary Act Procedure Exceptions: Private, delegated legislation, public bills which confirm provisional orders, bills to prolong life of parliament, legislation that originated in the HoL.

Therefore whilst the HoL can suggest revisions, it cannot enforce them. It also has very little power in itself. 

Reasons for Reform:  Socially unrepresentative (very few female peers, and those from BEM’s), conservative (so not politically neutral), undemocratic (they are unelected) and a poor attendance record. However reforms bring a lot of questions because of the difficulties in choosing the HoL: Theories of Reform

1.      A HoL selected only by appointment – Advantages: reward for loyal service, chosen by an independent committee for your expertise, quotas for certain groups (allowing representatives of various religious faiths, ethnicities). Disadvantages:  undemocratic, allegations of PM input, who will appoint them and how long for, similar to current system.

2.      A 100% elected Lords – Advantages: democratic, raises profile of HL, could lead to government being held to account. Disadvantages: Could lead to conflict with the Commons (they are the upper house and with democratic legitimacy are surely more powerful), how and when would there be elections? Would elected peers demand more powers? Does it just become a second Hoc?

3.      A mixed chamber – what percentage of appointments and elections? Does we need democratic legitimacy when the HoC is superior? 

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HRA S3 and S4

-          The power of interpretation given by Section 3 does not allow Courts to legislate compatible legislation, just interpret it in a way (if possible) with the convention rights.

-          The declaration of incompatibility can be ignored by the government, as it has no legal effect.

-          Lord Irvine noted that by stretching the concept of possibility in order to fit them within section 3 would be constitutionally inappropriate, as judges would be “taking it upon themselves to rewrite legislation in order to render it consistent with the constitution, thereby excluding parliament and the executive from the human rights enterprise” Activism and Restraint: Human Rights and the Interpretive Process” 1999, EHRLR 350, 367

-          In Ghaidan Lord Nicholls suggested that the Section 3 obligation was so strong it might require the court to depart “from the intention of the Parliament which enacted the legislation” (at 30). Nicholls did note it would be inappropriate for the courts to disregard the fundamental feature of the legislation however, thus limiting the section three powers. (“Underlying thrust of the legislation being construed” Ghadian at 33). Lord Rodger said that the interpretation must “go with the grain of the legislation”. Lord Millett dissented in this case, saying the language in the Rent Act 1977 was too specific to be interpreted to apply to same sex couples as it did heterosexual couples. 

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Limiting Factors on Section Three

1.       The courts will not adopt an interpretation that conflicts with the fundamental feature of the legislation concerned.

§  This was illustrated in (R) Anderson v Secretary of State for the Home Department[1]. Lord Bingham stated that it would not be “Judicial interpretation but judicial vandalism”.

2.       If the decision would involve making significant policy choices, the court is likely to conclude a compatible interpretation is not possible.

3.       A situation where the practical consequences of adopting an ECHR-compliant interpretation of the relevant provision would be so far reaching that it would be inappropriate for the court to adopt such an interpretation. As set out in Re S (Minors) (Care Order: Implementation of Care Plan)[2]. As the decision fashioned by the Court of Appeal (later overturned by the HoL because) “would not come free from additional administrative work and expense that would potentially compromise local authorities’ capacity to discharge their responsibilities to other children”.  Lord Nicholls noted it was a decision for Parliament and not the court.

[1] 2002, UKHL 46, 2003 1 AC 83

[2] 2001 

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Section Four – Declarations of Incompatibility

-          Only issued when the court is satisfied “that the provision is incompatible with a convention right”. It also does not have to be exercised, it only may be. It also has no legal effect (subject to one exception) and so remains a fully operative part of the law.

-          Only certain courts (High Court and above) can issue them.

Remedial Action: Either passing an act of parliament which repeals the incompatible section, or through section 10 issuing a remedial order, which allows the executive through secondary legislation to amend primary legislation (a Henry VIII power.)

-          Pre-HRA provisions are not repealed by the HRA. This is because the HRA does not expressly say a person has rights, it merely requires certain bodies to do certain things in relation to the ECHR.

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What is the Constitutional Significance of the Hum

Section 2(1): Domestic Courts “must take into account” Strasbourg jurisprudence.

-          R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837: ): “the House will not without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand Chamber.” (Lord Bingham, para. 18) – The presumption is domestic courts will follow the ECtHR. They can deviate but only with good reason.

-           R (Ullah) v Special Adjudicator [2004] UKHL 26: “a national court subject to a duty such as that imposed by s 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. . . . It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be a product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” (Lord Bingham, para 20)

-          R (S) v Chief Constable of South Yorkshire; R (Marper) v Chief Constable of South Yorkshire [2004] UKHL 39: “we must interpret the Convention rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence as it evolves over time.” (Baroness Hale, para 78) – Courts appear to be limiting themselves. 

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Parliamentary Sovereignty: Brazier’s “Triple Lock"

-          Continuing view of PS despite Devolution. He expressed three guarantees that made sure PS was not affected.

1.       The continuing view of PS – it would be impossible to give away PS, as no parliament can bind a future parliament (The Scotland Act can be repealed)

2.       The specific provision is Section 28(7) of the Scotland Act “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”

3.       Expressed limitations on powers of devolved bodies – reserved matters are kept to Westminster, and they include things such as the constitution and the union between England and Scotland.

-          However we should note the Sewel Convention, which suggests Westminster will not legislate on a devolved matter without the consent of the SP.

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Should the UK have a codified constitution?


1. Entrench certain rights into UK Law (thus introducing supreme law) 2. More concise, accessible single document so more people would understand and know their rights. Greater certainty the rules would then be enforced 3. Sets out exactly what the Government can and cannot do, including the checks and balances required, enabling the public & politicians to be more confident in each other and themselves. Restricts Parliamentary Sovereignty 4. Less room for interpretation by judges, so the law explains itself more rather than needing someone to translate it into practical applications 5. Clearer separation of powers

-    No:

-    1. Reduces flexibility, as society evolves the constitution would become out of date (US gun laws, suggest the right to bear arms to form a militia which is no longer needed, yet they still have guns) 2. In an emergency situation, the rules could limit the action and resolution of the problem by the government 3. Who would write it? What rights would it protect? How would its contents be decided? (If it were decided by judges, they are not representative of the people) 4.  Financial cost of reform, and there is no real public desire for it to be codified.5. Would undermine Parliamentary Sovereignty, a key traditional part of UK democratic principles 6. Could lead to Judicial Tyranny, as they are unelected and not representative of the public, they should not have all the power 7. Could be used to restrict freedom, if there was no bill of rights for example

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Statutory Instruments

Statutory Powers to make Delegated Legislation - Delegated Legislation is legislation that has been made and implemented by the Executive under the authorisation of a parent act without the involvement of Parliament.

The Use of Delegated Legislation - Whilst clearly inconsistent with the separation of powers, few people would suggest DL’s are not vital, the sheer quantity of legislation which needs to be enacted a year means parliament cannot be expected to deal with all of it. The focus of concerns in this area of law lie on the checks and balances in place to act as a safeguard against the abuse of power.

Henry VIII Powers - A type of law making power that allows ministers through secondary legislation to repeal or amend primary legislation, clearly this is so the secretary of state is not hampered by existing legislation and so, one example of its uses, are that in an emergency it would not take long for appropriate rules to be put into place. The worry is the breadth of some of these powers, for example the Civil Contingencies Act 2004 allows the implementation of legislation calling for, in an emergency, destruction of property and livestock, curfews, the movement of people and a variety of government actions, without the consent of parliament. Barber and Young have argued all legislation enacted under these power is wildly unconstitutional and that the risk of abuse of power is too high with Parliament trusting the entirety of its powers to a single minister.

The Legal Effect of Delegated Legislation - Measures which have no legal relevance to the parent act, when brought into force by delegated legislation, may be ruled as not being legal by judges however it is not always the case and each decision is very complicated.

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Types of EU Law

The two principle types of legislation are regulations and directives, TFEU Art 288 states “a regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states”. It goes on to state “a directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods”. All regulations have direct effect, as shown by Art 288, however a treaty provision itself is not directly effective, merely in principle, and will only be enforceable in member states courts if they meet certain circumstances (unconditional provision, unequivocal provision and is it clear and complete enough to be capable of being applied as a legal rule?)

Directives are when a member state is required to take all necessary steps to comply with a directive within a given time. Whether directives have direct effect is of great discussion, Art 288 suggests they are not but the CJEU has stated they think they are subject to conditions (unconditional provision, unequivocal provision, the implementation period must have expired and it is only capable of vertical and not horizontal effect). The vert/hori effect distinction comes down to the estoppel principle in that the state would be trying to profit from its unlawful actions (not implementing the directive) whereas a citizen would have had no legal duty to implement a directive not part of domestic law. 

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Other Types of EU Law

The EU has developed other types of law to try and fill the gaps left by direct effect concerns:

1.       Indirect Effect – the directive principle, but it is said the directive will apply to the courts who have a duty to implement the EU law whether or not it has been added to domestic law once the implementation period has expired, however if the court cannot find an interpretation in line with the directive, the claim will fail. Pfeiffer v Deutsches Rotes Kreuz [2005]

2.       Incident Horizontal Effect – when a directive is sufficiently clear and precise, it will render conflicting domestic law unenforceable. CIA Security SA v Signalson SA

3.       State Liability – if there is no way of ensuring the directive is taken note of in the courts, the state may have to pay comepsnation to the victim as seen in Francovich. The conditons for this are 1. The directive intended to confer rights on individuals 2. The states breach of EU law is sufficiently serious and 3. There is a direct causal link between the breach and the damage sustained by the injured party. In terms of stage two, if a directive is clear and left unimplemented, this will count as a sufficiently serious breach.

In directives that reflect general principles of EU law there is horizontal effect – Mangold v Helm [2005] . This has been subject to criticisms, for example Advocate-General Mazák has stated it is contract to Art 288, but as Albors-Llorens put it “the mangold principle is very much alive”

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Courts and DL

When it comes to SL, the courts have three options (although it is not as if the courts can pick and choose between them): 1.   The courts must interpret SL in line with the convention rights, so far as is possible. 2.  SL, if incompatible, may be quashed. This is because the Parent Act often will not allow the passing of incompatible SL’s. 3.  A declaration of incompatibility can be made.

We should note, that for the purposes of the HRA, S21(1) states that “Orders in Council enacted under the royal prerogative are to be treated as primary not Subordinate legislation”. Thus such prerogative legislation cannot be quashed. However, Judicial Review does allow the courts to strike down such legislation if it is unlawful, see Bancoult (no.2). This because it is an act of the crown alone, and so is not cloaked in Parliamentary Sovereignty.

Secondly the enactment of SL is purely a form of administrative action, and any aa that is inconsistent with the convention rights can be quashed unless the Parent Act unequivocally outlaws such an action.

Thirdly all legislation enacted by the devolved legislatures for HRA purposes is subordinate legislation.

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Who can enforce Human Rights Claims?

Article 34 of the ECHR says that “only a victim may bring a claim” before the ECtHR, similarly S 7(1) of the HRA provides only a “victim” can bring a domestic claim. The Victim Test has since been satisfied by someone who is an indirect victim (Kent v Turkey[1]). The person can also be a “potential Victim” in that they haven’t been affected by incompatible legislation yet (Norris v Ireland 1991).

[1] 1999, 27 EHRR 373

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Devolution Legislative Powers

Whilst the Scottish Parliament and Northern Ireland Assembly possess general legislative competence (they are authorised to enact legislation on any issue, subject to certain exceptions and reserved matters, such as the HRA, EU Law, international relations, defence and the ECHR). We should note the suggestion the courts can intervene if these parliaments exceed their powers.

The same cannot be said for Wales, who are only empowered to enact legislation on certain areas, and only then if it has secured permission from the UK parliament.

Type of Legislative Power

Scotland and NI have Primary Law Making Powers, and so are capable of (subject to the restrictions) capable of amaneding, repealing anmd replacting Acts of Parliament in terms of their effects on their respective countries. In Wales however it is an administrative or Executive devolution, who can only use the powers granted to them by UK ministers (similar to SIs) 

it is accepted that the UK parliament will not legislate, generally, on devolved matters without consulting said nation, this is known as the Sewel Convention

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Devolution Executive Powers

Each devolved executive body is slightly different. Following an election Scotland must put forward a First Minister for appointment by the Queen, this is highly similar to the UK “Parliamentary Government” system.

In Wales, legislative powers are conferred on the assembly, whilst executive on the Assembly Government (who hold the administrative powers, formally conceived on the assembly).

NI also has an executive drawn from an assembly, however it is different in that it was realised both nationalists and unionists would have to be represented in the government, so the first minister comes from the majority party and the deputy first minister from the second largest. There are also detailed rules restricting each party from the others jurisdictions.

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Federalism v Devolution

There are three crucial differences between federalism (as seen in the US) and devolution:

1.       The UK system is asymmetrical, different parts of the UK have different amounts and types of power, whereas in America all the states possess the same legal powers. On this same line, the UK parliament therefore exercises different powers over each part, whereas in the US congress exerts the same powers over every state.

2.       The US is a bottom up system, whereby the individual states joined together to grant powers upon a federal government, and the UK being a top down system has conferred powers from the government to smaller sections.

3.       The constitutional security in each jurisdiction is very different. The US has a set balance of power between federal government and the states (by the hard to amend constitution) whereas the UK can repeal devolution by passing an act of parliament (which is very much easier, it can therefore easily change any legislation passed by a devolved nation or remove and change its powers as much as it pleases). Devolution is therefore much less secure than federalism. 

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West Lothian Question

the West Lothian Question, which asks why can MPs representing the devolved nations, can still vote on matters which only affect England, and therefore the fact that English law can be made by those unaccountable to the English public is highly undemocratic.

Possible Ways Forward

The WL question rose again at the 2010 election where although the conservatives did not have a majority total number of seats, they had the majority of English seats. This has raised a number of possible solutions to be suggested: 1.       Devolution to English regions – dividing England into 8 regions, each with its own elected assembly, although this was resoundingly rejected in a 2004 referendum. 2.       Creation of a separate English parliament – which would move the UK towards a more federal structure, there is again no political appetite for such a change (and some fear it would cause a break-up of the union) 3.       “English votes for English laws” – the most simple idea, although it could be procedurally unwieldy, as the speaker would have to determine which MPs could vote on each part of a bill. It however, more seriously, could lead to bills which have an overall majority, but not an English majority not making it through the HoC, destroying (according to Bogdanor) the principle of collective responsibility. 

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Local Government

Why have Local Governments?

The Widdicombe Committee set out three principle factors which led to the importance of local governments:

1.       Pluralism – the existence of local governments allow the evasion of hegemony of central government

2.       Facilitates participation of the citizen in governance – it allows citizens to shape local policies thus legitimizing democracy

3.       The responsiveness of local government – much easier for a local government to make quick, correct decisions for its particular areas needs and desires (specialist knowledge).

What Should Local Governments Do?

The European Charter of Local Self Government states “public responsibilities shall gnerall be exercised, in preference, by those authorities which are closest to the citizen”. Whilst Mill argued all local business should be in the hands of local authorities.

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Local Government Questions

Local Democracy and Acountability: As elected bodies, local governments are subject to democratic control. However its effectivesness is often disputed as far fewer people tend to vote in local elections.

Organisation: People are often less conscious of its role and its decision than those of the central government, and in 2007 “unitary” authorities were introduced, however since then London has reintroduced the previous “two tier” system. The advantages of the unitary system are said to be that they enhance local democracy by showing more clearly responsibility and accountability thus voters are more likely to know who to blame or praise.

Structure: Local authorities have tended to be amorphous in that its difficult to see who is in charge of what, thus it is impossible to hold them to account, secondly many councils tend to be “hung” and thirdly th absence of formal executive boies make it much more difficult for local authorities to carry out their executive functions. 

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