Public Law

  • Created by: srht966
  • Created on: 21-05-18 14:57

Does the UK have a Constitution? What is a constit

A constitution is a set of rules which sets out how the power is held. This can be:

1) By the state divided by various parts of the state

2) How that power relations to the citizen (relationship between the state and the individual)

Constitutions usually arise after a revolution. Ours was the Glorious Revolution in the 17th century. A glorious revolution arises where citizes rise up against what they see as an oppressive state which resulted in the Bill of Rights 1689 which sets out basic civil rights and established the supremacy of Parliament over the crown.

The revolution strongly confirmed the rule of law under a limited monarchy, one of which Parliament now has the dominant power.

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What makes the UK Constitution unique? Features of

The UK is different from every other country (not including NZ Israel) in that we have a MAINLY unwritten constitution.

  • The UK has no one single document which sets out its power, therefore it is UNCODIFIED. However, a lot of our law can be seen in Acts of Parliament, conventions or court judgments (the common law)  as well as an 'abstract' set of rules/principles that we follow in theory
  • We are MONARCHICAL. Although the majority of power in the UK resides with Parliament and the government, the Queen remains head of state and has certain prerogative powers.
  • We are UNITARY in which all our power resides in the central state institutions. We have local governments but these can be altered/abolished by central governments at any time which maintains the idea of Parliamentary supremacy which is a key constitutional principle in our constitution. We have devolved powers to Scotland, Wales and NI but the UK is still unitary rather than federal.
  • We have a weak separation of powers in whcih different functions must be exercised by different institutions which has progressed over the years through the independence of the judiciary and Parliament and the judiciary holding the executive to account
  • We are RELIGIOUS - C of E as seen in spiritual peers being present in our H of L
  • As opposed to other constitutions such as the USA who has a WRITTEN, 'concrete' codified document which contains its rules. It is REPUBLICAN with the president as its head of state. It is FEDERAL where state powers are divided into those exercised by central government and those by stte or regions who have powers on a local level. 
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Advantages/Disadvantages of an Unwritten Constitut

A constitution is important as it prevents the state from ABUSING its powers and safeguards the rights of the individuals. However, with an unwritten constitution, where is the positive protection for the individual rights of the people as seen in the USA's codified document? Here we discuss the advantages/disadvantages...

Advantages of an unwritten constitution: 

  • Can be amended to reflect changes in society
  • Flexible
  • Encourages evolution of the constitution as we can see, the UK's constitution is rapidly changing
  • Leaves the state to develop the law for the benefit of the citizens

Disadvantages of an unwritten constitution:

  • Leaves the state free to abuse its powers and develop laws which act against citizens's rights as seen in the anti-terrorist laws
  • Constitution needs to be strong otherwise the government can simply change it
  • Subject to repeal
  • Gov can take away individual rights at any time
  • Can appear vague/uncertain. No single source
  • Protection of rights is vulnerable as seen in gov. being able to drastically reduce gun ownership by means of the FIrearms (Amendment) Act 1977
  • Only regular legislation and so can be amended/repealed at any time by enacting a further piece of legislation
  • No meaningful hierarchy of statutory law 
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Advantages/Disadvantages of an Written Constitutio

Advantages of Written Constitution:

  • Right to bear arms in the US constitution is enshrined and therefore virtually impossible to restrict
  • Key provisions in one single doc is a clear statement of how the state should operate and there is no uncertainty of ords
  • Protects the individual from abuse of the government
  • Provides clear protection of individual rights

Disadvantages of Written Constitution:

  • May be dififcult to amend if provisions become outdated e.g. USA and slavery
  • May be inflexible/unresponsive to change 
  • Requires one document to encompass the regulation of the entire constitution 

It can be argued our constitution appears to work reasonably well as we are a prosperous societty with relative freedom

However although an unwritten constitution has worked for us in the past, if something goes wrong there is little protection to be found in the constitution

Although the unwritten constitution does not protect rights we now have the HRA 1998 which provides greater protection for certain rights. This is more entrenched protection provided by a written document. We are leaning toward a more legl constitutionalism as opposed to political

Robert Blackburn (2015) argues that a written constitution could bring the government and the governed closer together by making rules which our political democracy operates more accessible to all

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Sources of Law - Where does the Constitution come

Argubably, the British constitution is becoming increasingly written in the course of the last few years. The UK's constituional arrangements can be seen as laid in statutes. 

However in other jurisdictions, there is a constant distinction between 1) constitutional law and 2) regular law. In the UK, there is no such distinction as even constitutonal law is subject to implied repeal. 

As A.V. Dicey describes, "Constitutional legislation is at the end of the day regular legislation that can be amended/repealed.

Laws LJ (obiter dicta) in Thoburn v Sunderland suggested that constitutional legislation should not be subject to "implied repeal" and challengs the notion that constitutional law should not be repealed. 

However, for now, as we can see our constitution comes from various sources that can be seen as regular legislation/an abstract set of rules/principles

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Sources of Constitutional Legislation - 'Ordinary

  • Acts of Parliament/statutes are forms of primary legislation in which both Houses of P take part in scrutinising which will set out specific powers of the state as seen in...(refer to JR)
  • Delegated legislation in primary law is developed by sources such as statutory instruments or bylaws which give powers to local authorities to be able to have allocated power in creating laws in their own areas.
  • The Bill of Rights 1689 / Act of Settlement 1701 can be seen as the first step to a written constitution which established Parliament rather than the monarch as the supreme law maker and set out basic individual rights. Also established principles such as the Rule of Law and Rule of Recognition which our whole constitution relies upon.
  • The Constitutional Reform Act 2005 also modified the role of the Lord Chancellor and established the Supreme Court to create a separation of powers to enable the state to be accountable to Parliament and enable the independence of the judiciary which is vital to our constitution.
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Sources of Constitutional Legislation - 'Ordinary

Another example of written sources of our constitution can be seen in judge-made/common law which establishes precedent for the future which even Parliament could not override.

  • Judges interpret statutes set out by Parliament and apply the law to the relevant deciison making. It is up to the judge to interpret the law/constitutional legislation
  • Judicial decisions impact the working of the constitution as it sets precedent for the future and uphold certain principles
  • There are constitutional issues where the court seek to restrict the power of the state as seen in Congreve v Home Office (1976) concerning the government raising the cost of TV licenses. It was struck down by the court as the action proposed by the government had not been authorised by Parliament.
  • By being able to challenge the wrongdoing of the executive, judge-made law sets out the separation of powers and holding the government to account which affects the way the government operates. JR has developed significantly overtt the years, relevant constitutional principles have been provided with more protection with the relevent case law
  • The courts will strive to interpret legislation and to develop the common law in ways that respect common law constitutional principles such as the right to a fair hearing, which although is not in one document, the body of law contains these principles and the duty of the public authorities to act reasonably as seen in Wednesbury reasonableness
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Sources of Constitutional Legislation - 'Special s

  • Origins lie not in Parliament but in the history of England
  • There remains a number of important powers within the constitution which fall under 'prerogative powers' and 'royal prerogative'
  • This allows the executive to exercise a number of powers without the consent of either Parliament or the courts e.g. granting honours/declaring war --> absence of accountability
  • The remainder of original powers of the monarch remain as historical anachronism which was reformed under the Constitutional Reform and Governance Act 2012 which can be seen as a written document setting out the now existing powers of the monarch
  • They are in practice constitutional conventions e.g. the Queen appoints the PM and has the power to give royal assent to an act of P before it can come into power. Also holds the theoretical power to dissolve Parliament. 
  • However, over time, 'special powers' have been replaced my statutory powers in order to make them more accountable to Parliament and the courts. They can be abolished by Parliament which suggests lenience towards a more written constitution where government needs to be held to account for their actions to Parliament
  • It has been established that where a prerogative power and statutory power come into conflict, the statutory (written power) will prevail e.g. Attorney General v De Keyser's Royal Hotel (1920) recludes the sovereignity of Parliament in relation to the Defence of the Realm Act 1914 which provided compensation payments were ruled as sovereign.
  • However certain prerogatie powers cannot be accountable to the courts or the government. In the GCHQ case it was held that the power vested in the Attorney Geneal was not open to the court to question in which the union sought judicial review of the policy of using prerogative powers to prohibit union membership. Nonetheless, even though the union lost their challenge to the policy, the court recognised it had the power to review at least some prerogative powers.
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Sources of Legislation - 'Special Sources' - Const

  • Non-legal rules not enforeable by the court
  • Legal freedom is restrained by political precedent
  • Accepted practices which parties implictly agree to abide
  • Convention provides the custom or rule which dictates how the power shall be exercised e.g. Ministerial Code
  • Marshall and Moodie have described them as 'rules of constitutional behaviour which are considered to be binding upon those who operate the constitution'
  • They are based on constitutional morality in which they are practical applications of underlying fundamental constitutional principles e.g. democracy
  • Conventions bridge a gap between a legal constitution which is in some respects outdated and a 'real constitution' which anachronistic laws are neutralised or otherwise rendered unacceptable through operation of convention
  • Pragmatism leads to its respect e.g. monarch needing the approval of its citizens, could be significant practical consequences
  • Although not legally enforceable, they can be factual evidence which may triger the application of legal principle such as confidentality or legitimate expectations
  • Essential to understand contemporary UK Constitution
  • Accountability, democracy, need the support of the general public
  • For example, the constitutional convention that the PM cannot remain in office without the support of a majority of votes the House of Commons is derived from an unsuccessful attempt by the ministry of Robert Peel to govern without the support of a majority in the House, in 1834-1835
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Sources of Legislation - International Law

The development of International Law can be seen as a large step in which our constitution can be seen as written, outlining positive rights in regards to privacy, family life etc.

  • This can be seen in the HRA 1998 which is a statement of basic human rights which was necessary due to the increased powers of government through Parliament e.g. enforcing anti-terrorist rules without consulting the public. It is the first time in history individuals are provided with a charter of positive rights that the state are obliged to respect and we have direct legal protection as seen in Factortame (1991) where it was held that where there was a direct conflict between EU and domestic law, the courts must give effect to EU provisions in the European Communities Act (1972) and Jackson (2005)
  • It was held that regulations are 'directly applicable' and do not require an Act of Parliament  to come into force. They are a more entrenched piece of legislation which represent important rights and uphold constitutional principles which did not previously have protection. Also important in establishing the relationship between the exec and the state.
  • In the HRA 1999 it was an established principle that even if legislation is not enaced, to any party it has a UK treaty with, it has an influence over that legislation and conformity with the law
  • S3-> Interpretation of domestic legislation--> primary and secondary legislation is to be interpreted with convention rights
  • S4-> declaration of incompatability -> it is up to the judges to use these rights and apply them to cases which reflect fundamental rights. When it is not possible to interpret a provision in primary legislation in accordance with the convention, the minister may "by order make such an amendment"
  • Two stage process in which international law is made but it does not directly come into effect until domestic law, however it is arguable it has a morally binding influence
  • Elliott and Thomas argue that the effects of the HRA have been to entrench the courts' powers to review the government power of their legality of administrative action, enabling them ot hold the government to account.
  • Althugh we have the HRA and ECA 1972, recent developments of incorporating a mere written constitution can be seen in 2012 report the commission of Bill of Rights that incorporate the ECHR/enshrinement of rights in UK Law/extend liberties but nothing as of yet.
  • It is argued this would be an enormous task from those who value the unqiue flexibility of the system/draw attention to the relationship between the UK/Brexit.
  • HRA - Parliament remain the right to legislate against it and it is not entrenched. It takes another act of parliament/amendment to create the compatability and enforce the right so at what point can it be said to be part of the constitution?
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Constitutional Principles - 1. Parliamentary Supre

This is the idea that Parliament is the supreme body within the constitution. The traditional view of sovereignty can be seen by A. V. Dicey

Parliamentary Supremacy is one of the three constitutional prinicples/foundations in the UK alongside the Rule of Law and Checks and Balances (separation of powers).

The idea that Parliament is the supreme body within the constitution that can make/unmake any law has been withstanding for several centuries since the Bill of Rights 1689 and the Rule of Law. The revoluion strongly confirmed the rule of law under a limited monarchy, one of which Parliament is now the dominant power. 

It is the premise of this which our constitution is based on, in which it is democratic and holds institutions to account where Parliamentary Supremacy comes in. However, as we have an uncodified constitution, this mens law is always subject to implied repeal by any future Parliament therefore certain rights are not protected. This is unlike constitutions such as Italy and Spain where the codified constitution overrides Parliamentary Supremacy. 

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Constitutional Principles - Definition of Parliame

Traditional view of sovereignty is that:

1. Parliament can unmake or make any law. This was seen in the Parliament Act 1911 which restricted the HOL powers in refusing to pass legislation to delay procedure. Now the House of C can legislate its own procedure and the way in which laws are made.

2. Parliament cannot bind its successors - Each successive Parliament can change the legislation passed by previous Parliament as seen in 2009 Parliament changing legislation regarding the Ireland Act 1919. 

This raises the doctrine of implied repeal meaning if an Act of P is inconsistent with an earlier statute then the later act is taken to repeal. This can be seen in Vauxhall Estates Ltd v Liverpool Corporation (1932) in which provisions of the later act of the Housing Act 1925 were taken to apply. No entrenched legislation remains Parliamentary Sovereignty. 

3. Nobody can question Parliament's laws

Under the traditional mode, the courts cannot question Parliament's laws as seen in British Railways Board v Pickin (1914) where it was held that it was not for the court to examine how an Act of P came into force or the question of correctness of procedures. The role of the court is simply to apply provisions. Exception to this can be seen in Unison etc.

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Constitutional Principles - Parliamentary Supremac

The question of repeal has become a very debated argument as to whether a sovereign Parliament should be able to bind its own laws in which case other Parliament's would not hae sovereignty. Every piece of legislation is subject to implied repeal which Laws LJ (obiter dicta) in Thoburn v Sunderland suggested that constitutional legislation should not be subject to "implied repeal" and challenges the notion that constitutional law should not be repealed.

Are there entrenched pieces of legislation in the UK framework that even Parliament cannot unwind?

Arguably, there are some principles that are "beyond the rule of law that Parliament cannot even change"

Political consitutionalism holds that there are non-legal factors which prevent absurd laws being prescribed such as conventions, constitutional principles etc.

Howver, in Makimbamuto v Lardner-Burke (1969) it was argued that: "It is often said that it would be unconstitutional for the UK Parliament to do such things but that does not mean it is beyond the power of Parliament to do such things" - political embarrassment/uproar? Fear of resignation.

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Constitutional Principles - Parliamentary Supremac

The question of repeal has become a very debated argument as to whether a sovereign Parliament should be able to bind its own laws in which case other Parliament's would not hae sovereignty. Every piece of legislation is subject to implied repeal which Laws LJ (obiter dicta) in Thoburn v Sunderland suggested that constitutional legislation should not be subject to "implied repeal" and challenges the notion that constitutional law should not be repealed.

Are there entrenched pieces of legislation in the UK framework that even Parliament cannot unwind?

Arguably, there are some principles that are "beyond the rule of law that Parliament cannot even change"

Political consitutionalism holds that there are non-legal factors which prevent absurd laws being prescribed such as conventions, constitutional principles etc.

Howver, in Makimbamuto v Lardner-Burke (1969) it was argued that: "It is often said that it would be unconstitutional for the UK Parliament to do such things but that does not mean it is beyond the power of Parliament to do such things" - political embarrassment/uproar? Fear of resignation.

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Parliamentary Supremacy - Orthodox 1: Parliamentar

Is Parliament capable of entrenching legislation that cannot be enacted or repealed at all?

  • Under the orthodox model, Wade argues that all Acts of P are legally equal and none can be made harder or impossible to repeal which upholds the rule of recognition
  • Entrenched pieces of legislation do not exist. The courts are obliged to uphold the most recent expression of Parliamentary intention
  • None can be made harder to repeal
  • How can Wade state that Parliament is sovereign but declare at the same time it cannot entrench legislation? 1) Self-embracing sovereignity - Parliament's powers include the ability to destroy its own sovereignty. Continuing sovereignity (Wade's preference) - Parliament cannot destroy its own sovereignty therefore it cannot entrench legislation due to the rule of recognition 
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Rule of Recognition?

In other countries, legislative authority can be traced to a written constitution where the limits of the legislative's authority is set out and the constitution can be amended to reduce/increase legislative's powers

If the UK does not have this, what authorises the UK to make such law?

Glorious Revolution (17th century) - The basis of Parliament's authority to make laws is a political agreement between the monarchy, Parliament and the courts which Hart refers to as the rule of recognition.

There is the argument that this gave rise to the constitutional rule that Parliament can enact any law and the court will recognise Parliamentary enactments as valid laws.

Wade argues that this is not aa legal rule but rather "the ultimate political fact upon which the whole system hangs"

However, if this was a political fact that could not be changed, the 1949 Act would not be able to be put into practice or the Hunting Act 2004 passed without it. Down to 2 years, then 1 year 1911-1949

The rule tells everyone, including the courts, what to recognise as law

Q: What if the legislation goes beyond their powers/morality, will the courts respect the rule of recognition then?

Lord Reed said in the Osborn case that:

fair decision making are one such feature that the court will make sure is enabled: "Procedural fairness requires that decision makers should listen to persons who have something relevant to say to promote congruence between the actions of decision-makers and the law which should govern their action". Procedural fairness reduces the risk of arbtirary decisions, which is the antethesis of the law. - JR

Argubably the courts can interpret the statutes which is a quasi-legislative function, making sure constitutional principles are enabled regardless of the rule of law

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Parliamentary Supremacy - Model II - Parliament is

New Manner and Form Theory

- Parliament could make it harder to enact legislation by stipulating that a given Act cannot be repealed/amended unless special conditions are met BUT it should not be capable of tying future legislator's hands of what legislation it can enact.

- New view allows for the CONTINGENT entrenchment of legislation but AGREES with Model I that absolute entrenchment should be impossible and impractical

- This gives a middle course between desirable/undesirable extremes of absolute entrenchment

- Proponents of the new view says it is consistent with Parliamentary Supremacy as still capable of amending/repealing any law

- JACKSON and FACTORTAME provided obiter support for the new view in which Lord Hope ruled that "no Parliament can bind its successors" but if you can make it easier to pass legislation, you should be able to make it harder...

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Parliamentary Supremacy - Model III - Unintended c

  • Models 1&2 agree that Parliament is free from unintended constraints. However, in this view the question arises as to whether UK Parliament is subject to constrains which do not derive from conditions imposed by Parliament itself...
  • 1) Practical constraints e.g. repealing legislation conferring independence on countries once British/granted devolution powers to be retracted
  • Legal constraints - Are there fundamental constitutional principles which the uncodified constitution contains which are so important that they cannot be modified by Parliament? e.g. procedural fairness. 

In Jackson (2005) Lord Steyn said it was possible that the H of C may not be able to abolish judicial review or the ordinary role of the courts as it seen as a constitutional fundamental principle as is the separation of powers. This questions Parilamentary sovereignty. 

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MAIN CHALLENGES TO PARLIAMENTARY SOVEREIGNTY IN TH

Challenges which the principle has faced in the course of recent decades:

1. European Union Membership

Due to the European Communities Act 1972, regulations are 'directly applicable' and do not require an Act of Parliament to come into force therefore undermining parliamentary sovereignty as seen in R v Secretary of State for Transport, ex parte Factortame (1991( where it was held that where there was a conflict between EU and domestic law, the courts must give effect to EU provisions. The Law of Parliament could be set aside. Regulations are directly applicable and so become part of the UK law without Parliament whereas directives in the ECA require an Act of P to take effect

However we are free to leave the EU when we want and in fact are doing so with Brexit - application of Miller and another v Secretary of State for Exiting the European Union. In this we can see that Parliamentary approval to leave the EU would be needed and prerogative powers could not be used by the government without a deliberate vote in Parliament. This was a case where judicial review was used to examine prerogative powers and holding the executive to account.

2. HRA 1998

In this case we can see that we have a dualist as opposed to monist approach in International law which requires a two stage process in which international law is made but does not immediately come into effect, this can be seen as upholding the rule of law and parliamentary supremacy.

Parliament must then make that statute to apply the law as seen in the ECHR -> HRA 1998. 

However it is an established principle that even if legislation is not enacted, to any party the UK has a treaty with, the national law should be interpreted where possible in conformty with that law. This can be seen as a constraint on Parliament which may trigger a legal principle. 

HRA was a statement of basic human rights which was necessary due to the increased powers of the government through Parliament e.g. enforcing anti-terrorist rules. In the UK, there was inadequate regulation in relation to matters such as privacy, religion and family life. For the first time in history, individuals are provided with a charter of positive rights that the state are obliged to respect and that we have direct legal protection as the judiciary are seen as a guardian of individual rights.

s3-> interpretation of domestic legislation - primary and secondary legislation is to be interpreted in accordance with convention rights, in so far as it is possible to do so

s4-> convention rights -> declaration of incompatability - When it is not possible to interpret a provision in primary legislation in accordance with the convention, the minister of crown may "by order make such amendment to the legislation as he considers necessary to remove the incompatability". This needs to be approved by both houses of P therefore maintains supremacy.

The government could decide to legislate against HRA but must do so openly

Human Rights require a degree of permanence that other rights do not enjoy as seen in the American amendments. However, theoretically the legal rights have protection that go beyond the normal legislation which makes it difficult fo rlegislation to be passed without such rights being incompatible with it.

Elliott and Thomas argue that effects of the HRA have been to enahnce the courts powers to review the legality of administrative action which can be seen as shift from political to a more legal form of constitutionalism as the extension of the HRA has created more legal protection. This can be seen as a change in nature of constitution and an untended constraint on Parliamentary Supremacy. Parliament wouldn't be allowed to contravene such rights however supremacy is still maintained as potentially the rights could be overridden at any time with implied repeal.

Ed Bates Hoffman: "We have not surrendered sovereignty over those matters"

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MAIN CHALLENGES TO PARLIAMENTARY SOVEREIGNTY IN TH

DEVOLUTION

Increased powers to devolved Scotland, Wales and N.I. can be seen in legislation recently which changes the nature of our constitution from unitary to more federal, although power remains centralised in Westminister

The Scotland Act 1998 and Government of Wales Act 2006 each establish different systems of self-government, giving them greater cntrols over their own affairs and power to make laws in certain areas. The SCA 1998 created the Scottish exectuive and Scottish Parliament. It has developed powers in education and training

Independence in relation to Scotland has become increasingly contentious in the aftermath of the referendum of Scottish independence which saw 55% to 45% to remain in the UK. They ultimately have the power to leave the UK as the people have the principle of democracy to be governed as they wish. 

2015 General Election - SNP took 56/59 Scottish Parliamentary seats which effectively removed Labour/Conservative parties from Scotland and raises a question over legitimacy of Westminster Parliament continuing to legislate over Scotland. This would be a form of political pressure/constraint that may result in the constitution changing. Scotland may wish to remain in the UK, the result renewed calls for a secund referendum over full Scottish independence 

HOWEVER, overriding power of Westminster guaranteed as they have the power to legislate for Scotland against their wishes. However would they?

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Constitutional Principles - Rule of Law!

The rule of Law is a set of governing principles which govern how the legal system should operate and how the powers of state shoudl be controlled.

The essence of the theory is that of supremacy of law over every person. Every person is subject to the law.

However the rule of law can be seen as developing over time...

Dicey (1885): No arbitrary power, state powers should be specified in law, no punishment for breach of law. Law applies to all persons equally

Raz (1979): Law should be general, open and clear and stable. The judiciary should be independent. Courts to be able to review state powers.

PRINCIPLE OF LEGALITY is ultimately what the rule of law rests upon - If something is to be regarded as law, it must be enacted in whatever way the legal system prescribes e.g. Act of Parliament approved by both houses with royal assent by the Queen. No crime or punishment without the law.

The rule of law is seen as uncontroversial and neutral. It was acknowledged in both Jackson and Entick v Carrington which established the principle that prerogative powers of the monarch and government are subordinate to the law of the land. It guarantees that government officials cannot exercise public powerunless exercise of it is authorised by the specific rule of law, state may act lawfully in compliance with statute or the common law.

Other writers would argue that the principle of legality is only ONE component of the rule of law where properly understood encompasses other principles.

Other requirements: Formal conception of the rule of law (Raz) contend that the law should prescribe general characteristics which are morally neutral as to the conent of the law and supports the existence of discretionary powers to "effectively guide action"

Substantive conception - Mainly principles of JR to reflect a substantive reflection of rule of law e.g. right to a fair hearing. Courts willingness and capacity to uphold these principles is now augmented by the HRA.

Principle of equality seems to be a clear principle of the rule of law as seen in Entick v Carrington.

Most recent and comprehensive definition of the doctrine was provided by Lord Bingham in his 2011 book 'Rule of Law':

1. Law must be accessible, intelliglble, clear and predictable

2. Laws should apply equally to all

This contends that nobody should be ABOVE the law including the government and that the state should only be able to act in accordance with the law and not as it sees fit ! - leads onto Separation of powers.

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Constitutional Principles - Separation of Powers

Definition: Prescribes the appropriate allocation of powers, the limits of those powers to different institutions 

  • Originally, all power was originally concentrated in the hands of the monarch and consequently it was impossible to prevent the abuse of such power
  • Power within the modern constitution is divided between a number of the 'key organs of state' who oversee each other and have to work together to achieve their objective
  • Aim = prevent abuse of power and its impact
  • We are seen ot have a 'SOFT' desperation of powers between organs of the state meaning there's more flexibility and allows various elements to work together
  • Judicial independence was strengthened in the Constitutional Reform Act 2005:
  • - Until 2009, the judges who sat in the Appellate committee of the HOL which was the highest court in the UK were also members of the upper chamber of legislature. Establishment of the Supreme Court which intended to remedy the situation replaced the H of L to establish independence/freedom from political constraints. Law Lords who also sit as judges were criticised as seen as breaching the necessary divide needed between legislature and the judiciary which the ECHR and HRA would need.
  • Position of LC - Formerly a member of the three organs of state and now a joint member of the cabinet 
  • Head of judiciary is now Lord Chief Justice
  • It is important that the judiciary are independent and impartial to hold the state to account in legal accountability. This way organs of the state restrain each other and prevent the other from exceeding their powers as seen in R v Secretary of State for the Home Dept, ex parte Anderson (2003) where it was ruled it was for the courts and not the home secretary to set sentences
  • Only if the judiciary is free from control can it act in the best interests of the people. This is ensured by judges being unable to be sued and immune from liability for the decisions they reach. Judges do not participate in politics. 
  • Independence of judiciary can be seen through them acting time to time as architects of the constitution e.g procedural fairness. Parliament could not take this way as the courts would not allow it respecting the rule of law and the principle of legality
  • Courts have embraced the doctrine of deference that they should exhibit deference in certain circumstances. Their independence and impartiality demonstrated in case law can be seen in R (Farrakhan) v Secretary of State upholding the view that some decisions ae political and the court need to uphold the law and support the home secretary. - Fettering of discretion
  • Role of LC is now complimented by Judicial Appointments Commission /remains important in advising the Queen on appointments to high judicils office
  • Appointment of jugdges was formerly made by the LC after informal discussions with senior judiciary. Based on connections previously, now less meritocratic
  • However arguably not represenative of the minority, it should be reflective of the population at large
  • Masterman --> Constitutional Reform Act has contributed to a more tangible separation of powers in which the judicial branch has emerged stronger and institututionally independent of its executive/legislative counterparts
  • Stanley Burton J suggests that the division and exercise of constitutional powers of the judiciary powers of the judiciary should be understood as conceptually autonomous of powers exercised by other branches of state. Understood this way, this conception of power becomes more than a simple camoflauge for the supremacy of the legislature and envisages a parallel space where the court's independent judgment and authority carries weight
  • Steyn: "A neutral arbiter on disputes between citizens and between citiziens and the state is essential to the working of the democratic system"
  • "Judges are constantly on trial" - Steyn
  • Baker - Wide perception that courts are inclined to overuse their power in the HRA to make political decisions themselves. As seen in JR
  • Jacskon (2005) - Lord Steyn said it was possible that the H of C may not be able to abolish judicial review or the ordinary role of the courts as it is a constitutional fundamental principle which the rule of law exists upon.
  • R v Unison - Question of legal challenge of employment tribual fees and whether they were lawful. Supreme Court had to decide whether fees limited access to justice as they are seen as protector of the rights of the public and ruled it did so. SC is to decide legal issues of wider importance and to to make and develop the law. This sets precedent for the future and alters the constitution. Courts have to consider the relevant consitutional principles which are arguably above the law e.g. right to a fair trial
  • Executive over the recent decades has had an evergrowing influence and requires more effective systems of accuontability - Elliott and Thomas.
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INSTITUTIONS - 1) Parliament - Democracy

Countries which embrace the democracy also embrace the notion that no individual has the right to govern and that people have the right to be governed as they wish...

The party with the most seats in the House of Commons forms the government via a first past the post system which is criticised for not being truly representative of votes e.g. in 2015 general election, UKIP secured over three million votes but only produced one MP in Parliament. Via proportional representation, the party could have taken over 80 seats with the same number of votes. Argubably not truly democratic or elective. Not everyone's vote counts the same. The winner takes it all. The way constituency boundaries are drawn is very important however the Constituency Act 1986 provides for independent determination of boundaries of parliamentary constituencies

650 MPs sit in the H of C

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1) Parliament - House of Lords composition

  • House of Lords is the upper house and one of two houses of Parliament that help scutinise the government and part of the main legislature of the United Kingdom
  • 1/3 branches of the institutions which include the executive and judiciary
  • Make up Parliament which is the supreme law making body in the UK established by the rule of law
  • Weak Separation of Powers enable H of C and H of L to effectively scrutiinse the government
  • Our constitution is bicameral. It involves the legislature being divided into separate assemblies or chambers. It can be distinguished from unicameralism in which all members deliberate and vote as a single grup
  • As of 2015, fewer than half of the world's national legislatures are bicameral. However we are not unique as Italy and Spain have bicameral models operating in their governemnt
  • In the Westminster system Parliaments, we are distinguished as the house to which the executive is responsible to can overrule the other house as seen in the lower house, H of C being able to overrule HOL. This is known as imperfect bicameralisms 
  • The relatinship between two chambers varies as in some cases they are of equal power whilst one chamber is superior in its powers. The first tends to be the case in federal systems and the latter with parliamentary systems to which we are unitary
  • Two streams of thought include: some critics believe bicameralism makes meaninguful political reforms more difficult to achieve/increases the risk of grid lock however proponents argue the merit of "checks and balances" help t prevent ill-considered legislation
  • We are idiosyncratic in our bicameralism due to our wholly unelected and appointed nature of the HOL where there is a strong divide as to whether this should be the case or not.
  • Russell in the 1999 Reform of the HOL argues that our bicameral model was strengthened  in which hereditary peers were no longer entitled to HOL membership. 159 were removed and 92 remain.
  • House of Lords Reform 1999 - judicial members will cease to exist when all present members die in the period leftover from 2009. 
  • Life peerages are conferred by the crown on advice of the PM, they can either be political peers or crossbenchers. The latter are appointed by H of L Appointments Commisssion.
  • Lord Spiritual - 26 Archbishops and bishops of C of E.
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1) Parliament - House of Commons

Dominant chamber made up of 650 MPs.

- The party with the most seats in the H of C forms the government 

- Key function is it operates as a legislator and scrutinises bills. Arguably main role is to scrutinise the government's legislative proposals rather than formulate its own proposals 

- Consists of frontbenchers, who are ministers of the government. The backbenchers are all other members who do not hold governmental office. The leader of the H of C who is different to the speaker and responsible to the P for organisation of business in the commons. Party whips control MPs and are responsible for arranging business in Parliament. The assumption is that MPs support or oppose a Bill according to their party loyalties rather than their own opinion (biased) and backbenchers are pressurised by the whips.

- H of C, unlike HOL is fully elected and has certain powers over H of L created through the Salisbury Convention - Provides H of L shoudl not reject a government bill that implements a manifesto pledge

and Parliament Acts 1911-1949 - Restriction of Lords' powers but cannot be used in respect of a Bill to extend the maximum duration of Parliament beyond five years. 1911 - If rejected two times by the HOL, then it becomes an Act of P regardless

therefore arguably more representative of the public/democratic due to elected nature

- Ministers/party whips consider that an amendment of a bill proposed by them is a blow to their prestige

Although Parliament can offer advice, its role is usually to provide a forum in which political parties can engage in a continuous electoral campaign.

- Main role is to scrutinise, it approves 60-70 bills per year (public bills which affect everyone, private bills which apply to specific organisations, private member's bill) however due to this party politics nature, it prevents thorough scrutiny from taking place. 

- The expertise of parliamentarians to perform the scrutiny function is questionable as they are generalists and may not have the necessary skills. Politicans their entire lives who do not have the right knowledge to draft proposals.

- Separation of powers - weak - Government has a very powerful influence in Parliamentary procedure. Most bills are introduced by the gov. The gov decides how much time is allocated to parliamentary discussion fo bills and therefor esome parts are not studied in depth and receiving no scrunity at all as time runs out

Legislative process:

- Legislative chamber in which HOL revises bills sent over by the HOC and amends them

Legislative process is seen as a tussel between government's desire to get their legislation through Parliament and their desire to scrutinise it

The "ping pong" process involves an amendment of bills between one house then these amendments will need to be considered by the other house and if there is a difference then this will need to be reconciled 

 

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1) Parliament - House of Lords strengths

  • Less political - As memberships are appointed and unelected, 1/5th of HOL have no party affiliation and in the HOL there is no majority of political parties. This reduces the importance of party politics as present in HOC and encourages more independent and objective thinking. The promises of promotion to the front benchers to get into the executive would be less appealing to the Lords giving the parties less of a hold on the second chamber as demonstrated by the pressure of the whips in the H of C
  • As they are not subject to FPTP or party loyalties, they are able to give voices to issues that will unlikely to be served by the first chamber who are eager to appeal to majority of interests
  • HOL are able to scrutinise Bills/government activity with the benefit of a particular breadth of expertise dominated by achieving prominence in some other field. 
  • In the HOL, the social composition is questionable as only 29% were women when we make up 5% of the population. Can MPs really be said to be democratically representative? 1/3 MP's have attended fee paying schools and been involved in politics the majority of their lives.
  • Hudson & Campbell "The UK would need to elect 130 more women and double the amount of black and ethnic to make sure its Parliament were descriptively representative of the population it serves"
  • Unappointed counter-argument - Borgdanor: "As it lacks democratic legitimacy, it cannot act as a rival to the H og C or alternative legislative chamber" which works well for an effective government. Can't be a replica as this would make Britain more difficult to govern.
  • Phillipson - "Appointed house is a giant QUANGO" lacking any democratic legitimacy. Wholly elected would be a "clone of the commons" rendering it difficult to scrutinise effectively
  • HOL - focuses on basic human rights and to do so it needs freedom from immediate party political pressures.
  • Argubably NOT irrelevant as "it has all the power to bring the whole of the government to a halt if it chooses to do so" - If the House were a purely advisory body, how could it throw out the bill equalising the consent for homosexuals?
  • Russell and Sciara: Departure of hereditaries in the HOL creates a new party balance, increasing Lord's sense of legitimacy and given it more confidence to challenge the gov. Existence of the Lords as a serious longstop has given greater confidence to MPs to extract concessions from ministers/greater rebelliousness of the commons.
  • Virtue of a good chamber: intelligent contradiction, not merely a replica. Debate. Requires specialist knowledge in all fields of life/work.
  • Royal Commission: job of HOL is "to make HOC think again"
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1) Parliament - House of Lords weaknesses

Jackson case: Lord Bingham - Effect of the Parliament Act had been to "erode the checkes and balances inherent in the British constitution by making it easier for the executive dominated HOC to legislate without hindrance by the Lords"

  • Anachronistic, outdated, unappointed, too political as most life peers are political rather than cross-benchhers
  • Unappointed - not democratically held to account
  • Change in powers - 1911 At an 1949 act, removal of power due to rubber stamping
  • Bingham - Chambers should be stripped of its legislative powers entirely and constituted as an advisory body who can bring expertise/experience to scrutiny of legislation. Effectiveness is dependent on capacity for independent-minded scrutiny that is not stifled by party politics.
  • Life Peers- Commission Reform of HOL - unrepresented. Women/black minority are under represented and many peers are coming from London/SE England.
  • Norton - "It invites the Commons to think again, but ultimately the Commons are asserted to get its way" as in Hunting Act 2004
  • Aug 2012 - Coalition gov dropped reform plans where they wanted 4/5th members to be elected. Number of peers to be halved. Peers to represent a specific region of the UK.
  • Ultimately - Commons and Lords need to play complimentary roles in altering the relationship with the exec and policement making it more genuinely accountable which the second chamber can have a part in restoring the repputation of Parliament - find quote author

Unicameralism as the way forward?

Advantages: Fully elected parliament, faster procedure, fewer readings

Disdvantages: less scrunity, weakening of separation of powers. Commons will basically be a replica of the gov.

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Parliamentary Scrutiny of the Government

Is Parliamentary Scrutiny of the government really that effective?

  • There is an unquestionable party-political dimension operating in the House of Commons
  • The Agenda of the MP's is either to get promoted into government or re-elected back into Parliament therefore you will be less principled in putting your view forward against the masses/objecting to a bill
  • Time and resources are a problem in parliamentary scrutiny being effective
  • There is a lack of detailed/technical knowledge of MPs who are usually generalists with no specialist knowledge 

D. Oliver has suggested that the legislative process could be enhanced by a different critera in which various standards need to be tested e.g. compatability with EU law, risk-assessment etc. to make scrutiny more effective in the bill process

A question arises as to whether, after being implemented, should Parliament be involved not only in the scrutiny of the bills before they come statutes, but also scrutinty of what happens after they become law when the government are implementing them

The absence of post-legislative scrutiny has been acknowledged as a wipe gap in Parliament's oversight of legislation and the government and arguably why the courts have had to take a role in closing the gap. The 2004 House of Lords Committee suggested that there should be a systematic process of post-legislative scrutiny in order to determine whether legislation has achieved its purpose.

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Parliamentary Scrutiny of the Government - How it

1. Parliamentary Questions

Parliamentary Questions are on eof the main means by which information is obtained from ministers by MPs

It operates on a departmental rota. Each minister appears once in a five week cycle in order to answer questions that fall within his/her responsibility e.g. Department for Education

2. Prime Minister Question Time

On Wednesdays, the PM answers questions for 30 minutes.

The strength of PMQT lies in the lack of notice given and the need of the PM to demonstrate competene across the full range of governmental policy

PMQT serves an important public function, highlighting for the public the ideological and policy differences between the government and opposition

3. Written Questions

MPs can also put forward queestions in writing. This enables them to extract information from the government and can be followed up by any MPs interested in the record.

Ministerial statements are commonly used by the government to make formal announcements to Parliament, this shows the government generally accept the discipline of a responsible government. However "duty to inform" suggests that the dominant view in the government in that Parliament's role is a passive one

Limits to this form of scrutiny: 1. Cost-advisory cost list 2. Can be rejected 3. A lot of answers not adequate

4. Emergency Questions/Debates

Questions can be given to the minister without the need to serve normal rules as to notice. They will be asked at the end of question time. Must be communicated to the speaker before noon of the day he seeks to put the question

Emergency debates - Confined to matters deemed to be of great national importance e.g. deployment of British soliders in Afghanistan

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Parliamentary Scrutiny of the Government - How it

5. Parliamentary Questions

- Oldest method by which Parliament can critically scrutinise government decisions/actions

- Held in Parliament on particular issues and they allow for the expression and representations of different politicians 

- However the government have the power to decide what gets debated in Parliament

Early day motions - A written notion tabled in Parliament requesting a debate by any MP

- Purpose to express a view and request debate as well as test the strength of feeling in the House over the matter involved. Represents as expression of the mood of the House across spectrum of issues whihc places pressure on the government to respond.

6. Select Committees: House of Commons departmental Select Commitees

- Policy/admin of each government department is overseen by dedicated House of Commons select committee

- Each commitee is comprised between 11&16 MPs, all of whom are backbencers. In the past, party whips determined who became chairs of select committees but this gave rise to concerns about "those being scrutinised should not have a say in the selection of scrutinisers". 

- After 2010 election, select commitee chairs are now chosen by MPs through a secret ballot, drastically reducing the powers of whips

Formal remit: Examining the administration, expenditure and policy of the government departments to which they are attached

- MPs choose their own enquiries and ministers and civil servants come before them out of fear of political embarrassment

- At the end of each inquiry, they produce a report setting out its findings and making recommendations to the government. The government aim to respons within 2 months.

Positives:

+ Provide a forum in which the work of the government departments can be made subject to more detailed scrutiny than would be possible in House of C

- Powers are weak in comparison to other legislators. Cannot amend, veto or propose legislation and have noright to have their reports debated in the House of C, let alone voted upon

- Resources are limited

But not so limited to be irrelevant...

Baker: "Parliament is seen as merely applying its rubber stamp on governemnt bills"

"The House of Commons is almost completely effective"

"It is sometimes said that a back-bench member of Parliament has maintained his main function on the day he is elected, the purpose of the election being to determine the party which will form the government rather than to impose any check on once it is informed"

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INSTITUTIONS - 2) The executive

The executive is the branch of state responsible for executing and administering laws drawn up by the legislature. It makes up 1/3 of the institutions and is held to account by Parliament and the courts due to political accountability

The PM is responsible for overall conduct of the government and appointment of ministers who head each department. 

The office of the PM is one barely recognised in the law. The 20th century saw a steady increase in the power of the PM who now has a very strong position. 

As leader of the party in power, he has been chosen by the electorate and has control over party machinery. Can usually rely on the strength of the party loyalty to maintain his position as his public profile is higher than that of any other minister. However he does not have absolute ower. PM must keep the support of his/her party both inside and outside Parliament. They are ultimately dependent on continued party support as well as the support of the electorate. 

As chairman of the cabinet, he can to a large extent determine the nature of discussions within the cabinet. Matters can be referred to sub-committees and the agenda manipulated to ensure the desired result.

As ultimate head of the civil service, the PM has powers over senior appointments and access to all information. Grown into the PM's special source of assistance and information.

The PM appoints and dismisses government ministers and has at his disposal a wide selection of public appointments/honours.

The Cabinet consists of ministers who head each of the departments known as secretary of states together with ministers for government business.

The cabinet is the nucleus of the government, it is extra-constitutional and in other words theoretical. It forumulates, inititates and implements the policy of the government for efficiency. It is supported by a system of committees which is largely determined by the PM.

All major government decisions are taken by the Cabinet. The Cabinet is a committee of senior government ministers. In the UK, it is for the Cabinet to determine the policies to be submitted to Parliament, to determine the content and priorities of the legislative proposals and to ensure all relevant policies are carried out.

There are no rules prescribing the size of the Cabinet and increasingly operates through a network of committees, the result being that they may be bound to decisions in which they have had little to more nominal participation.

Recent constitutional position is now on the greater openness of government and transparency of process and freedom of information. However, national security remains the most common ground for blocking information. In cabinet discussions, the court have protected the secrecy of them by granting injunctions and by refusing applications for the discovery of documents. In Conway v Rimmer, the need for secrecy was justified because it ensured full and frank discussion within the Cabinet. It helps to preserve the convention of collective responsibiliy and protected the government from criticism.

Parliament can be seen as having a "negative influence" in their scrutiny by exerting a deterrent effect upon the government. Or a "positive agenda-setting function" and could occasionally place issues on the broader political agenda and arouse interest in the matter. 

Two-stage implementation setting of putting legislation into power, government and Parliament acting in compliance rather than against one another or government pushing legislation through without Parliamentary scrutiny.

 

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The Executive - Ministerial Responsibility

Ministers are in each government department who take responsbility for the way in which the department functions and to extent to which it achieves its objects.

Ministers are bound by two constitutional conventions which fall under 'ministerial responsibility' which consists of individual and collective responsbility.

The doctrine only applies to 'front benchers' of each party e.g. ministers and shadow ministers, the 'backbench' MPs are not bound by the doctrine and so can disagree if they wish.

Ministerial Responsibility is a constitutional convention in governments using the Westminster system that a cabinet minister bears the ultimate responsibility for their department or ministry. 

Ministerial repsonsibility is ultimately a form of scrutiny in which ministers must be answerable to Parliament for the way in which powers assigned through the statutes being used. Under the Ministerial Responsibility Act, Parliament have the right to examine the lawfulness of the official acts of the members of council of state.

Described by Loveland as "perhaps the most important and non-legal rulew ithin our constitution"

In 2000, Jowell and Oliver suggested that ministerial responsibility to Parliament has been "significantly weakened over the last ten years so that it can no longer be said to be a fundamental doctrine of the constitution". A fundmental principle of the British constitution is that the govrernment is accountable through its ministers to Westminster. It is the executive's obligation to provide all the information and explain its actions in Parliament in order to justify the appropriate democratic scrutiny.

It is important that ministers give Parliament truthful/precise information. Otherwise the next move of the minister is to offer his/her resignation to the PM due to the deception of Parliament.

Individual ministerial responsibility - Responsibility for policy/admin of his/her department. Enables the House of Commons to focus on a particular minister and his responsibilities without the need to censure the whole government. Duty to give Parliament/its select committees and public full information as possible on policies/actions of government and not to deceive or mislead Parliament or the public.

Individual responsibility for their own personal conduct - Just requires honesty and incorruptability The Norton Report prescribes that it is not possible to lay down hard and fast rules on private conduct but there would be societal pressures in the UK. However, in contemporary terms, personal involvement of the minisster is necessary as the government is extensive and complex. The classical doctrine was that the minister should always answer questions and give a full account of his department.

There can be political pressures to resign, it is only a constitutional duty however when he/she has knowingly misled Parliament or personally to blame for dpeartmental error.  Voluntary resignations are rare, PM decides whether to move a minister or not.

A minister's chances of holding onto their job are owed more to political circumstances rather than the facts of the case e.g. personal popularity with the PM/popularity with the party

'Collective Responsibility' is the doctrine of responsibility for all cabinet and government ministers. It is not something that can be found on a constitutional document. 

Established in the 18th/19th century

Main purpose is to protect ministers/guarantee the government's continuance. In rare cases, where the government fails to gather the majority of confidence votes, the collective responsibility offers accountability of the public through government resignation.

The principle is based in a body of constitutional conventions, established by precedents rather than positive statutes which signify that 1. government remain in office only so long as it retains the confidence of parliament and that all ministers stand/fall with that government

2. Ministers must support governmental policies but also must resign/seek dissolution of government if defeated in Parliament on a matter of confidence.

This implies ministers are bound by the decisions of the cabinet, even when they had no part in their decision/discussion. 

Ensures gov acts as one entity and this entity is answerable/accountable to Parliament

United front within the governing party to ensure that confidence can be placed within it and to portray the government fully in control of itself. 

If there is such disapproval that the ministr no longer feels their operations in their current capacity are tenable then it is their responsibility to resign from Cabinet.

PM removed this doctrine in light of Brexit as he knew people would have differing views. However, in the past, Robin Cook resigned over the Iraq War back in 2003 as he could not be seen as supporting the cabinet's decision. 

given Gordon Brown's recent leadership problems, the rallying of the cabinet was crucial to his survival.

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Institutions - 2) The executive - Civil Service/QU

CIVIL SERVICE

Whilst ministers head up government departments, the actual management of the department is entrusted to its permanent secretary (the most senior civil servant in that department).

As a result of this structure, there is limited scrutiny of these departments.  The Public Administration Select Committee argued that the machinery of government changes under the Ministers of the Crown Act 1975 do not allow for sufficient political scrutiny which should be remedied 

Civil servants are described as a servant of the crown. They are permanent administators who implement governmen policy. The most civil servant is the Cabinet secretary who has overall responsibility to ensure that the Civil Service provides effective and efficient support to the PM.

Core values of the civil service are in the 'Constitutional Reform and Governance Act' 2010 and reflected in the Civil Service Code.

Since its inception, the civil service had been managed by the government/royal pregoative. Putting it on a statutory footing could address its shortcomings.

Constitutional principles: - Permanence, political neutrality, anonymity which is changing in the last few years as civil servants give evidence to committees on behalf of ministers

Civil servants must serve whatever government is in power even thoguh they are not in sympathy with that government's views. 

QUANGOS

- Public bodies e.g. Royal Commission on House of Lords reform which are not subject to direction by elected bodies such as Parliament/local authorities

"All bodies responsible for developing. managing or delivering public servces or policies"

Features: 1) They are supported to be acting in the public interests

2) Publicly funded

3) Not elected nor politically accountable

5) Appointments to quangos are made on merits and not political grounds

Purpose: Highly specialised functions are formed. They can be less bureaucratic in the way they operate and involve large numbers of 'ordinary people' in public life 

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THE CROWN

The meaning of the Crown in the UK means the government.

Royal Prerogative

Dicey: "The result of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown. Every act which the government (executive) can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative."

Characteristics:

1. Powers which are inherent in and peculiar to the Crown

2. They derive from Common law/recognised by the courts

3. Residual

4. Majority of them are exercised in the name of the crown

5. No Act of Parliament is necessary to confer authority of such powers which arguably goes against Parliamentary Supremacy 

Lord Browne-Wilkinson states that unless the Parliament has expressly or by implication extinguished the prerogatives, they continue to exist. Certainly, there is evidence to support this argument. The Bill of Rights 1689 settled that Parliament could limit or abolish prerogatives, temporary suspend them by legislating in areas hitherto covered by prerogatives (Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508) or amplify them in the Act of Parliament (R v Secretary of State for Home Department, ex parte Northumbria Police Authority [1988]. Further, where there is a conflict between a prerogative and a statute, the latter prevails (De Keyser’s); this is in line with the constitutional principle of parliamentary supremacy (the right of Parliament to make or unmake any law, which cannot be overridden by any other body). Therefore, if the line of argument of parliamentary supremacy is to be followed then Parliament indeed is supreme, and prerogatives only exist to the extent that Parliament has not extinguished them. Further, in De Keyser’s Lord Atkinson suggested that if the statutory power was repealed in the future, it would be possible to act under the prerogative again, which demonstrates that prerogatives can be suspended. Thus if not repealed, they will remain in existence – thus supporting Lord Browne-Wilkinson’s view.

However, the case of R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] illustrated that even though the Police Act 1964 gave police powers it did not exclude the Home Secretary using his prerogative powers. More importantly, it pointed to the fact that Parliament does not even have the right to know what the prerogative powers are. Thus, contrary to Lord Browne-Wilkinson’s statement how can Parliament extinguish prerogative powers when the realm of such powers is so vast that the range of governmental prerogatives poses a question whether there is sufficient constitutional control over the use thereof

The Queen's prerogative powers refer to those personal prerogatives left solely in the hands of the monarch. The most common powers that are found in this category include the right to appoint Prime Ministers, to right to advise Ministers in private, the right to go against ministerial advice, the right to provide assent to legislation and the ability to dissolve Parliament.

 

Could the monarch be independent on constitutional terms?

- Monarch acts upon advice of the PM but could refuse royal assent of a bill or could insist an election must be held before a bill becomes law

- Must appoint PM

- In extreme circumstances the monarch could safeguard against potential abuse of the PM/dissolve Parliament

Powers related to foreign affairs e.g. can make treaties, the making of peace

Ridley: Powers vested in the crown changed into the hands of Parliament after the result of the civil war. Parliament had established the upper hand legally and politically. Practices changed, visions of the constitution was reconceptualised and to take account of what became a political reality in Bills of Rights 1689 and Act of Settlement 1701.

Raz: "Prerogative powers are now almost wholly an instrument of executive government" - the house does not always have control over decision making e.g. treaties exercised without reference to Parliament. R v Secretary of State for the Home Department ex parte Fire Brigades Union - used powers against Parliament by amending existing prerogative scheme. Ruled S of S had abused powers by introducing one that had not been consistent with an appoved one in the house of P.

Dicey: "under the complex conditions of modern life, no government can in times of disorder, keep the peace at home, or perform its duties towards foreign powers without 'occasional use of arbitrary powers'"

Critical events: power of the executive increases at the expense of the legislature.

- There are times of tumult or invasion where for the sake of legality itself, the rules of law must be broken. 

Baker: prerogative powers are not subject to any scrutiny at all. Example is the power to reconstruct government by abolishing ministries e.g. the LC and setting up others such as Ministry of Justice in 2003. Blair had comandeered the constitution and put it on par with immigration, to be managed on a routine basis as an act of governmental power. Gov does this without any public explanation or discussion. In what argument are we in charge of our own constitution?

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The Judiciary / Judicial Review - HOLDING THE GOVE

Administrative Law - to make sure the government act lawfully therefore there needs to be external independent litigators to make sure the government are making the right decisions.

Judicial Review = the legal process by which people can challenge the legality of the government made by bodies exercising public law functions which include: government ministers/departments, local authorities and tribunals 

The basis of the doctrine is that the courts are not challenging the merits of the decision but rather whether it is a decision the body is entitled to make:

Lord Brightman: "Judicial review is not with the decision but the decision making process"

  • JR's history is on the basis of the court's intervention of the ultra vires doctrine. As in, if a body is exercising statutory pwers that go beyond the four corners of the Act of P then the courts could intervene as seen in Anisminic v Foreign Compensation Commission. Lord Reid: The doctrine of ultra vires is not simply used to control the scope of power being exercised but also control the way it is used. So where a body used a power in an unreasonable manner/bad faith or based the decision on irrelevant factors, the court could intervene on the ground it had abused its power.
  • The basis of this control was that the courts considered that when Parliament gave a body statutory power to act, it could imply that Parliament intende it to act in a particular way e.g. in good faith. In the attempt to abuse such opower, the courts have blurred the distinction between merits of decision and its vires. As seen in cases such as Congrieve v The Home Office.
  • In the recent years, the courts have extended theor supervisory jurisdiction beyond a review of the exercise of statutory powers to include exercise of prerogative powers as seen in Ex Brigades. Language of ultra vires is therefore no longer appropriate. 
  • Jurisdiction of the High Court is over bodies exercising public law functions and may include both bodies by statute or through exercise of the royal prerogative and public bodies. Who is amenable to JR has expanded over the years. It was held in 1987 that the decisions of unincorporated assocations which exercised no statutory or prerogative powers were amenable to judicial review. Courts are therefore willing to look beyond the source of a body's powers and examine the nature of the powers being exercised to determine if its amenable as a public function or if it did not perform this function, it would be performed by the gov

Who can apply?

  • Section 31(3) of the Senior Courts Act 1981 provides that the court will not grant leave for judicial review unless the claimaint has sufficient interest in the matter to which application relates
  • Statute did not provide definition of what amounts to "sufficient interest" and the courts have been called upon to determine the issue as seen in R v IRC Ex. p the National Federation of Self Employed ad Small Businesses. Case highlights the connection between the sufficiency of the interest and the seriousness of the illegality complained of. The more serious the illegality, the more liberal appear the rules of standing.
  • HOL argued that it was not necessary that the applicant's legal rights were affected but needed some sufficiency of interest as seen in claimants who have "sincere concern" for constitutional issues/claimaint's raising issues of public importance
  • JR is not automatically available. The permission of the courts is necessary before the claim will be dealt with by the courts ensuring the valuable time of the court/resources are not wasted on vexatious claims.

Non-justiciability

  • Sometimes the court will consider it is inappropriate to exercise their power of judicial review on the basis that the nature of the dispute is such that it does not tend itself to resolution by the judicial type of process. This arises where judges feel ill-qualified to perform including the making of treaties,  the defence of the realm etc.
  • However in R v Minister of Defence Ex p. Smith it was held that in only the rarest cases would today be ruled as beyond the court's purview.
  • It has been suggested that the influence of HRA 1998 migh be as such to prevent the court refusing to interfere on this ground.
  • As judicial review is a mechanism for the judiciary to exert control over the exec, it can be viewed as part of 'separation of powers'
  • As JR is limited to secondary legislation, it can be seen as a safeguiard to ensure delegated powers are not misused

Grounds for JR

  • An action for JR must be brought on one or more 'grounds' as set out in the GCHQ case (1905)
  • It was held by Lord Diplock that there were three grounds for judicial review:
  • 1) illegality - terms of a decision maker who has acted ultra vires
  • 2) irrationality - 'unreasonableness' - Wednesbury Corporation (1948)
  • 3) procedural impropriety - "has the correct procedure been followed" - intended to ensure decision making bodies follow the necessary steps when reaching their decisions as seen in Agriculutral, Horticultural and Forestry Industr Board v Aylesbury Mushrooms Ltd (1972)

Natural justice

Grounds for JR known as 'natural justice' re-decisions which contravene basic principles of fairness

These include the rule against bias and the right to a fair hearing (Ridge v Baldwin) it was held that a right to a fair hearing required a person to be afforded the opportunity to present their case.

Is there a right to be informed of the reasons for the decision?

A Q of whether the decision maker is required to state the reasons for the decision can be seen in R v Sec of State for the Home Dept ex parte Doody (1994) where it was held that although there was no general duty to disclose the reasons for decisions, this was held contrary to the public interest in such serious matters. Where a decision was amenable to JR, it was necessary for the applicant to know the reasoning in order to prepare their case.

Legitimate Expectations

Initially the principle was confined to legitimate expectation of procedural protection e.g. reasonable expectation that applicant will be granted a hearing before a decision to deprive them of some benefit/advantage to be taken - AG for Hong Kong v Ng Yuen Shiu (1983)

Principle has now been extended to more substantive legitimate expectations that an individual will be granted or retain some benefit. In such cases the expectation must be based on express undertaking or arise from past conduct on the part of a public authority as seen in R v North and East Devon Health Authority ex P Coughlan (2001). 

Attempts to exclude JR

Decision makers would like to remove the possibility of their decisions being challenged.

The most obvious way of this would be to remove JR to exclude such powers in a statute which delegates the decision-making power by means of an 'ouster clause' 

Despite such statutory attempts to restrict JR, the courts usually succeed in adopting an interpretation which permits challenges to continue 

Attempts by Parliament to exlude JR by means of statutory provisions illustrates aspects of threatened PS as seen in Anisminic (1969( where it was held that the word 'determination' did not exclude the court's power to consider whether or not the decision was correct in law.

Unison (2017)- another example of JR overpowering Parliamentary sovereignty. The Tribunals, Courts and Enforcement Act 2007 gave government statutory power to require payment of fees by those wanting access to tribunals. Courts quashed this in R v Unison. Question of whether legal challenge of employment/tribunal fees were lawful. SC had to dcide whether fees limited access to justice and to protect the rights of the public. Courts had to consider relevant constitutional principles e.g. right to a fair trial which are arguably above the law. Sets precedent for the future which Parliament cannot change. Can be seen as SC holding the gov to account, reviewing the lawfulness of secondary legislation and affirming constitutional principles. Courts are to make sure that the rights, interests and expectations of individuals are protected and taken into accuont.

Other argument: JR is one of review and not appeal. Courts have no statotry right to question whether Parliament's decision is right or wrong, the courts cannot interfere with the merits of the decision

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Judicial Review challenging Parliamentary Sovereig

- Farwell LJ argues that JR is a practical response to the weakness of ministerial responsibility shifting from political to legal constitutionalismism in regulating the overnment as it sets precedent and affirms constitutional principles. THe courts are seen as independent bodies, not typically possessing a majoritarian view and protecting the positive rights HR gives and values of the minority.

- Elliott and Thomas argue that the executive has an ever-growing influence on British people and exerts a dominance which requires a more effective system of accountability due to shortcomings of parliamentary modes of accountability

- On the other hand, Griffith and Tomkins counsel against viewing JR as some sort of pancea capable of filling the 'dead ground' referred to by Lord Mustill and argue that instead Parliament should be reformed, enabling it to play a further role in calling the executive to account and thereby reducing hte need to rely on the courts.

- Sceptics say that what the courts are valued for; independence and supposed neutrality is rendered when deciding whose interests should be put first which arguably is a political decision.

- JR also operates as a mechanism for resolving disputes about the relationship between different parts of the multilayered constitution. An example of that may incur between different institutions to the extent to which central gov can impose its policy preferences on local authorities. Its role is therefore not limited to protecting the rights of individuals against unlawful action but now acting as a referee between spheres of authority. -> Find case for this.

- Due to the development of JR, principles of JR given by Parliament to strike down unlawfulness/unfair decisions arguably go beyond the statutory powers given to them and has evolved considerably of the years. However there is no evidence Parliament intended any of these changes and never legislated for growth of JR. HRA had its part to play in this.

The common law theory allows principles of JR to be applied to decision making powers whether or not powers have been created by Parliament and can account for changes in the law if JR is common law. However, there is a problem that if Parliament has authorised the making of unfair decisions it is constitutionally impossible for P to be sovereign for the common law to prohibit the making of such decisions. Critics of the common law theory therefore contend that it is unconstitutional to the extent that it purports to the courts to prevent decisions from doing things that sovereign parliament intended. Allan -> PS may be questionable under common law theory.

Anisminic case - demonstrates the courts' reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review. Even when such an exclusion is relatively clearly worded, the courts will hold that it does not preclude them from scrutinising the decision on an error of law/quashing it when such an error occurs.

R (Javed) v Sec of State for the Home Dept (2002) - gave home sec the power to designate a country as "safe" so asylum cases were fast tracked. Courts intervened and said order was unlawful as Pakistan was not a safe country and gave reasons regarding the risks. Clear example of how far the courts will go in striking down gov. decisions that are unfair and ocntravene human rights.

Wednesbury catalogue 1946 - Courts will examine whether public boy made the relevant considerations and exclude irrelevant considerations. Ruled children cannot go to the cinema on Sunday. Can only strike down if no reaosnable decision maker would have arrived at that. "Wednesbury unreasonableness" "irrationality". Altercation to this: Super Wednesbury - must be extremes of bad faith as seen in Nottinghamshire CC v Secretary of State for the Environment (1986). Court ruled they would intervene in a political debate unless the minister had "taken leave of his senses"

ECHR  + HRA - Hoffman "We have not surrendered our sovereignty over these matters"

Lord Chief Justice: "Policy is a matter for politicians, whilst the lawfulness of policy is a matter for judges"

Bates: "surrender of British sovereignty" - court has the last word on the compatability of British law with the law of ECHR and that by virtue of international law potentially requires domestic/statute law to be changed.

Limitations; Do not have a free-roaming mandate to rule upon the legality of any gov decision. their jurisdiction is only engaged if they have been called upon to adjudicate upon a legal dispute

can only review whether gov decision is unlawful, not right/wrong

not the only mechanism for ensuring gov act according to the law e.g. tribunals

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