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Warning: TT: undefined function: 32ENTIRE Constitutional and Administrative Law Module!Part ONE – ConstitutionalismKey principles of the UK Constitution -Parliamentary sovereigntyParliament has "the right to make or unmake any law" (A. Dicey)Parliamentary accountabilityParliament c...

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ENTIRE Constitutional and Administrative Law Module!

Part ONE – Constitutionalism Key principles of the UK Constitution Parliamentary sovereignty Parliament has "the right to make or unmake any law" (A.V. Dicey)

Parliamentary accountability Parliament can hold the Government accountable for its actions.

Separation of powers The different branches are separate and carry out different functions.

Rule of Law Nobody is above the law. From the Cherry judgement: “At the heart of the concept of the rule of law is the idea that society is governed by law. […] Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law”.

Constitutionalism A theory (or ideology?) that governmental power is only legitimate if it is authorised, defined and contained by something bigger than itself – such as the constitution. Political constitutionalists - only way to not violate the system is through the political system itself. Only concerned about political repercussions. Parliament has political responsibility to subject the Government to scrutiny. How this works in practice: •

Government is accountable to Parliament.

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Parliament is accountable to the electorate.

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The system is largely guaranteed, politically, through regular elections. The electoral system is ‘First Past the Post’.

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The electorate can be consulted directly in a referendum.

Sources of Our Constitution Acts of Parliament and Delegated Legislation Acts of Parliament (primary legislation) 'Constitutional statues', e.g. the Human Rights Act 1998, Scotland Act 1998, European Communities Act 1972. Delegated Legislation (aka Secondary Legislation, Subordinate Legislation) An Act of Parliament can authorise another person or body to produce legislation. This type of secondary legislation is not immune from judicial review. Courts can (and often do) strike down secondary legislation if it is unlawful.

Case Law •

Judge-Made law

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Common Law (such as Judicial Review)

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Interpretation of Statute Law

International Law Monism: "A treaty entered into by the Government of the day is self-executing in the national legal system and becomes a source of law that may be applied by national courts." Dualism (the approach followed by the UK): "Treaties become a source of law recognised in domestic courts only if they are expressly incorporated into domestic law by national legislation."

Constitutional Conventions • •

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The Monarch will give Royal Assent to a Bill which has been approved by both Houses of Parliament (only once has a queen refused this, in 1708). A Minister will usually resign if they cannot agree with government policy / if a scandal or a failure they're involved in becomes public (recent examples decisions surrounding Brexit and the prorogation) The UK Parliament will not usually legislate on devolved matters (matters that fall within the legislative competence of the Scottish Parliament) without prior consent from Scottish Parliament.

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Conventions are non-legal rules governing the workings of the constitution.

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Being non-legal, they are not enforced by the courts but instead by forces of political constitutionalism (i.e. politics, or a sense of moral duty).

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They often regulate the relationships between different constitutional ‘actors,’ and may limit the power of some institutions.

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They may be unwritten, or they may have been codified or published in some written form.

How do we know that a practice amounts to a Convention? We apply the 'JENNINGS TEST': •

What are the precedents?

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Did the actors in the precedents believe they were bound by a rule?

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Is there a reason for this rule?

Why do the various constitutional actors follow Conventions if they are not legally binding? Because they are politically binding. “Conventions are observed because of the political difficulties that arise if they are not”.

Constitutional Conventions and Flexibility Collective Ministerial Responsibility : Unanimity , confidence, and confidentiality BUT: Can be suspended (e.g. David Cameron allowing people to publicly disagree with government policy) Case law examples of this in action Madzimbamuto v Lardner-Burke [1969] The convention was not enforceable by the courts, and the UK Parliament’s sovereignty had not been limited, in law, by the convention. Lord Reid at 723: 'It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. AG v Jonathan Cape Ltd [1976] A man decided to post diaries that divulged what happened in meetings in Parliament. The courts attempted to sue the publishing company as the laws of confidentiality applied. The Court relied on the Convention of Collective Ministerial Responsibility to determine the limits of the legal doctrine of confidence. The information was no longer subject to confidentiality; and Publication could not be restrained by constitutional convention, because the court cannot enforce conventions. Reference Re Resolution to amend the Constitution, [1981] Decided that he wanted to distance Canada further from the UK Constitution without consent, which was found to violate Convention rules. The Canadian SC ruled that to seek amendment of the constitution without the consent of the provinces would be to violate a constitutional convention BUT the federal government was not legally obliged to obtain the consent of the provinces before requesting the patriation of the Canadian constitution.

The Sewel Convention

The Westminster Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament. (Legislative Consent Motion) When is an LCM required?: - Matters that are within the legislative competence of the Scottish Parliament. - Matters reserved to the Westminster Parliament that affect the breadth of the devolved institutions' powers. Scotland Act 2016 s2 entitled the ‘The Sewel Convention’ amending Scotland Act 1998 s28 “[…] But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Part TWO – The Royal Prerogative The Royal Prerogative Every action of the Government must have its basis in law. Statutory powers: Powers conferred upon a ‘Secretary of State; or other executive person or body by an Act of Parliament. Statutory powers can include the power to produce ‘secondary’ or ‘delegated’ legislation within the limits prescribed by Parliament. An example of Statutory Powers: Terrorism Act - gives power to the Secretary of State to add an organisation, but can only designate an organisation as a terrorist organisation if they believe it is concerned in terrorism. These are prerogative powers. Not all powers the government has at its disposal are statutory powers. They could also be: • Prerogative powers: Discretionary & Residual powers of the Crown now exercised primarily by Ministers. No Parliamentary authority is required for the exercise of these powers. They derive from common law. Most prerogative powers are done by the Government in the name of the Monarch. E.g. - The Queen having to provide Royal Assent to Bills. •

‘Third Source’ powers: Where certain public bodies (such as Ministers for instance), claim to take action when there is no law preventing them from doing so.

The 'Glorious Revolution' in 1688 In the 17th century, constitutional settlement it was established that the Crown had no powers that could not be taken away by Acts of Parliament. all powers to make laws passed from the King to Parliament. Parliament slowly started taking away the King's powers, putting them into statute and gave them to the Government. Prerogative powers - “The residue of discretionary or arbitrary authority, the Crown retains”. Formally, these powers belong to the Monarch, but are generally exercised on her behalf by government Ministers. Some powers still belong to the Monarch, these are prerogative powers.

Categories Personal Prerogatives of the Monarch: for instance, the Queen has a royal prerogative power to Appoint PM & Ministers. This is also shown by her Granting Royal Assent to Bills. Ministers’ Prerogatives / Executive Prerogative Powers: The power to declare war, the conduct of international relations, entering and withdrawing from international treaties, deployment of armed forces.

Criticisms of Prerogative Powers

Prerogative Powers are imprecise. - There is no authoritative definition or list of powers exercised under the prerogative. It's therefore hard to decide when the Government is acting within its residual powers. Some even argue that the Royal Prerogative is incompatible with modern democracy as there is no written-down law that shows us what Ministers are responsible for … so can we hold them accountable for their actions to Parliament? Prerogative powers are an anachronism. (a thing belonging or appropriate to a period other than that in which it exists, especially a thing that is conspicuously oldfashioned). Political Accountability to Parliament? “It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers” John Major, HC Deb, vol 220, col 19W (1 March 1993) Legal Accountability through the courts? Even courts have on occasion struggled to determine whether a prerogative power exists! Role of the courts - legal accountability: imprecise, so it's hard for courts to decide if the exercise if the use of prerogative power was in its powers, or even if that specific prerogative power exists.

How have the Courts treated Prerogative Powers? Can the Courts Judicially Review the exercise of Prerogative Powers? Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 – The GCHQ case The PM, Margaret Thatcher used her prerogative powers to ban ministers from joining trade unions to collectively fight for their rights. Lead by the GCHQ, they challenged this decision as unlawful. Up until then, it was unclear if the courts had the power to review prerogative powers. It was found that the fact they were reviewing powers from the prerogative made no difference … Lord Diplock at 410: – “My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.” And Lord Roskill at 417: – “I am unable to see… that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.” Therefore, a process was developed Courts must: 1. Determine whether a prerogative exists. 2. Determine the scope of the powers conferred under the Prerogative. What does it cover and what does it not cover? What are the limits of the specific power 3. Examine the manner in which it was exercised.

Case law of this in practice: Burmah Oil Company Limited v Lord Advocate [1965] AC 75, 101, per Lord Reid During WW2, the British Govt. instructed the military to bomb oil reserves so that the Japanese couldn't get to them. Many years later, it was found that the Burmah Oil company owned these, and seeked compensation as they lost their reserves. They had to decide if this prerogative power (destroying property in the context of war effort) was lawful or not. "The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?"

Can new Prerogative Powers be created? No: “…it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative." Diplock LJ in BBC v Johns 1 Ch 32, 79: The BBC was developing new radio/television technology and did not want to pay tax for it. They stated it created new prerogative power for the Government that extends means of communications that extended prerogative. The court said it was far too late for new prerogative powers to exist. They will ALWAYS be in decline. If we wanted to create new powers, modern thinking around legitimacy and constitutionalism would require that Parliament create such powers. (These new powers would be statutory, not prerogative). Prerogative powers are therefore only ever going to be in decline. Cherry and others v Advocate General for Scotland [2019] UKSC 41: “Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie” at [38].

Limits on the prerogative (1): Prerogative power cannot be exercised if statute covers the same area Attorney-General v De Keyser’s Royal Hotel [1920] AC 508: Hotel turned into a military base, wherein there was a promise of compensation after the war. The Government stated that they didn't use statutory power, but prerogative powers, so they shouldn't have to pay compensation. The court said that, where statute and prerogative covers the same matter, the Act of Parliament prevails, holding the prerogative “in abeyance”.

R v SoS Home Dept, ex parte Fire Brigades Union [1995] 2 AC 513: Parliament created a statutory compensation scheme for victims of violent crime. It included a provision that the law would only come into effect if a Minister made a statement on this scheme. The Minister decided that, using prerogative powers, made a second compensation scheme that payed much less to these victims. Prerogative powers cannot be used where they conflict with enacted legislation, even when that enacted legislation is not yet in force. Prerogative persists but cannot be exercised in a way that frustrates the will of Parliament. R v SoS Home Dept, ex parte Northumbria Police Authority [1989] QB 26: The courts said that sometimes statutory powers and prerogative powers can coexist if the statutory powers were NOT made to overturn the prerogative power. A situation where it is not clear that the use of prerogative would be incompatible with the statute. This case has been heavily criticised!

Limits on the Prerogative (2) Case of Proclamations (1611) 12 Co Rep 74. The King had raised taxes on import beyond what Parliament had decided. This was challenged before the courts, and the courts said that the King only has prerogative powers that Parliament allows him to have. “the King hath no prerogative, but that which the law of the land allows him". - Lord Chief Justice Coke This case tells us that a prerogative power cannot be used to alter the law of the land.

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 Following the Brexit referendum, the UK Government was planning to trigger the withdrawal process under Article 50 TEU, by relying on its prerogative power to conduct foreign relations. A notification had to be delivered to the UK bodies to show we wanted to leave, giving 2 years to do so. Theresa May sends this letter relying on her prerogative powers, and a group of constitutional experts said that the Article 50 process had to be triggered by an Act of Parliament, and it would be unlawful to do this via prerogative powers. The court found that exercising the prerogative would have been unlawful as it would be changing the LAW OF THE LAND. EU Law was to be changed domestically by an Act. Applicants initiated judicial review proceedings, arguing that the Government could not rely on these powers. Instead, Parliament should pass an Act authorising the Government to initiate the Brexit process. • EU law was given effect in the UK by an Act of Parliament (European Communities Act 1972) •

Individuals in the UK had acquired rights through EU law.

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Triggering Article 50 meant that these rights would be lost at end of the withdrawal process.

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Leaving the EU would alter domestic law.

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Rights provided by statute could not be taken away by prerogative. Prerogative power cannot change domestic law.

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Therefore, an Act of Parliament was needed. (Elliott &Thomas, Public Law (OUP, 3rd edn 2017) xiv)

Constitutional Principles: A New Limit to Prerogative Powers? Miller 2 / Cherry [2019] UKSC 41 The UKSC was asked to engage in judicial review of a prerogative power that had never before been subject to review. The UKSC held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification. Because the prerogative was exercised in a way that disrupts constitutional principles, it is unlawful. Culture of justification? - The Government must be able to JUSTIFY why they are using this prerogative power. R (On the Application of Bancoult) v SOS Foreign & Commonwealth Affairs [2009] 1 AC 453 Highlanders - a British colony called the British Indian ocean territory. Using prerogative powers, the govt decided to kick the people out of their homes and island to turn the island into a military base. The highlanders begun a process of litigation of trying to seek justice for the violation of their rights. Lord Bingham at [70] dissenting No instance of Govt. power to remove native people from their homes. The HoL “was referred to no instance in which the royal prerogative had been exercised to exile an indigenous population from its homeland. Authority negates the existence of such a power”. At [71]: “I accordingly conclude that there was no royal prerogative power to make an order in council […], and it is accordingly void." Sadly, this was a dissenting opinion and it hasn't yet been seen as unlawful.

'War' Prerogative The power to deploy British forces abroad derives from the prerogative. A ‘War Powers’ Convention: “The Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate. April 2018, Airstrikes in Syria were not authorised by Parliament. Was this a breach of the Convention?

Part THREE – Parliamentary Sovereignty Parliamentary Sovereignty An Orthodox understanding of Parliamentary Sovereignty •

‘Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body recognised by the law of England as having a right to override or set aside legislation of Parliament.’ –AV Dicey, Introduction to the Study of the Constitution (1885)

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The only limits to Parliament’s legislative competence under this understanding of Parliamentary sovereignty are moral and political.

Key Consequences of the orthodox conception of Parliamentary Sovereignty 1. No institution has the power to question the validity of a statute. 2. In the conflict between an older and a newer statute, the newer statute will preva...