The United Kingdom: Introductory Note
Rainer GroteEdited By: Max Planck Institute
I. Main Features of the UK Constitution
Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions, turning the UK constitution, in the words of A.V. Dicey, into “the most flexible polity in existence.”1
One reason for this is that British constitutional history has been marked by a continuity unknown to most other nations. The basic constitutional settlement in Britain dates back to 1688, when the powers of the King were finally curbed and the pre-eminence of Parliament as the supreme legislative body of the land was firmly established. This constitutional settlement which found its legal expression in the Bill of Rights of 1689 was entered into at a time when the habit of drafting elaborate written documents in order to set out authoritatively the main principles governing the structure of the state and the powers of state authorities had not yet taken hold in Europe. Written constitutions are essentially an invention of the second half of the eighteenth century, when in the wake of the rise of natural law theory it was widely accepted that the main institutional arrangements on which a society was built rested upon some sort of contractual agreement entered into by its members at the time they abandoned their natural state of unrestricted liberty. The US Constitution of 1789 and the French Constitution of 1791 were among the first constitutional documents to reflect this new line of thinking. At that time, however, the main foundations of the British constitutional order had already been established. Although major constitutional changes occurred subsequent to the 1688 settlement—the Union with Scotland in 1707, the Union with and the subsequent secession of Ireland, the widening of the franchise in the nineteenth century, the curbing of the powers of the House of Lords in the early twentieth century, the rise of the executive and the development of the welfare state in modern times—these changes did not amount to revolutionary upheavals leading to a radical break with the past, as was the case in America or in France. Rather they were accommodated within the existing constitutional structure, giving rise over time to major adjustments in this structure, but without destroying its traditional outlook. Over time, many people in Britain especially in the political class, but also in the population at large, have come to see the unwritten character of the British constitution, which combines a strong reference to tradition with a considerable capacity to adapt smoothly to the needs of a changing political environment, as a major virtue of their institutional system.
II. Sources of the UK Constitution
The unwritten UK Constitution derives from two main sources, statutory legislation and case law.2 Constitutional conventions are also often ranked among the sources of the Constitution3 but they are, strictly speaking, of a non-legal character and can therefore not formally be considered as sources of constitutional law.
Legislation is today the most important source of the UK constitution as most areas of constitutional law are nowadays subject to some form of statutory legislation. The trend towards codification of central aspects of the British constitution has accelerated in recent decades. Although no authoritative list of constitutional statutes has been established, there exists a broad consensus in the literature on the statutes which have been of central importance to the development of the UK constitution.4
The oldest historical source of constitutional significance is the Magna Carta of 1215. At the time it was adopted, the Carta was the successful attempt by the barons to impose some limits on the untrammeled powers of the English King. Today the document’s importance lies in its confirmation of the liberties enjoyed by “freemen of the realm” and the protection of these liberties by the requirement for trial by jury in cases where they were to be taken away. Although few of its provisions remain on the statute book today it has been called the closest thing to a fundamental law that England has ever had.5
The Petition of Right of 1628 forbade forced loans, taxes and other monetary demands on the subjects without the consent of Parliament. The Petition, although not formally abrogated, has largely been superseded by the Bill of Rights of 1689 (see below).
The Habeas Corpus Act 1679 introduced a powerful procedural device for the protection of personal liberty. It grants every person imprisoned on a criminal charge the right to have the legality of his/her detention tested before a judge. If it is established that there is a prima facie ground for believing the detention to be unlawful, the writ of habeas corpus to release the prisoner is issued. In 1816 another Habeas Corpus Act extended the right to persons detained on grounds other than on a criminal charge.
The Bill of Rights of 1689 which was given statutory force by the Crown and Parliament Recognition Act 1689 formally acknowledged the balance of power between Parliament and the Crown as it had emerged from the era of civil war in the 17th century. Many of its provisions are still in force as part of English law. In particular, the Bill provides that the monarch cannot suspend or dispense with laws made by Parliament, and that the levying of money for the use of the Crown or the keeping of a standing army in peacetime without parliamentary consent is illegal. It also prohibits the questioning of the freedom of speech and debate in Parliament in any court or place outside Parliament.
The Act of Settlement of 1700 provides for the succession to the throne and adds important provisions to the Bill of Rights. It limits accession to the thrown to persons “in communion with the Church of England”, thus formally excluding anybody who is Roman Catholic, or marries a Roman Catholic, from the line of succession. Persons who accept an office or remunerated occupation from the Crown or receive a royal pension are excluded from membership in the House of Commons. Judges are secure in their tenure “so long as they are of good behaviour” (quamdiu se bene gesserint) but may be removed from office upon the address of both Houses of Parliament.
The Union with Scotland Act 1706 gives effect to the Treaty of Union between England and Scotland. The Treaty created a united Parliament of Great Britain. Prior to the Treaty each country had enjoyed independent sovereign status. While the Scotland Acts 1998 and 2016 have devolved legislative powers from the UK Parliament to the newly established Scottish Assembly, it leaves unaffected the supremacy of the former over the latter (see below VII. 2. a)). At the same time, the Treaty provides special protection for the Presbyterian Church of Scotland and the Scottish education system. In addition, it guarantees the continued existence of a separate Scottish legal system by preserving the Court of Session and the High Court of Justiciary—still the highest Court in Scotland with final jurisdiction in all criminal matters—and prohibiting any alteration of Scottish private law “except for the evident utility of the subjects.”
The Parliament Acts of 1911 and 1949 modified the relations between the two Houses of Parliament. Until then the powers of the Lords had been equal to those of House of Commons in law, although the Lords had recognized by convention the supremacy of the Commons in relation to financial matters and therefore abstained from exercising their right to initiate or amend Bills relating to finance. When they finally used their powers to reject financial legislation proposed by the Government, this provoked a huge political crisis and led to the curtailment of their powers by the Parliament Act 1911. Under the rules introduced in 1911 and tightened further in 1949, the Lords can delay “money bills”, i.e. bills dealing only with such matters as central government taxation, appropriation and government loans, for one month and other public bills for one year.
The Statute of Westminster 1931 provides that the Westminster Parliament will not legislate for any dominion state except that the dominion requests and consents to such legislation.
The Crown Proceedings Act 1947 provides that the Crown can be sued in contract and tort in the courts of justice as of right.
The European Communities Act 1972 was the first of a number of Acts to give effect to the British accession to the European Communities and to the subsequent modification of the terms of membership in the European Communities/European Union (EU) through the revision of the founding treaties (Single European Act 1986; Treaty of Maastricht 1992; Treaty of Amsterdam 1997; Treaty of Nizza 2000; Treaty of Lisbon 2009). In constitutional terms the effect of the 1972 European Communities Act was unprecedented: It authorized a dynamic process by which, without further primary legislation, and, in some cases, even without any domestic legislation, EU law not only became a source of UK law, but actually took precedence over all domestic sources of UK law, including statutes6 (see below III. 1. c)).
The Scotland Act of 1998 introduced some measure of devolution within the UK constitutional structure. The Bill provides for the establishment of an elected Scottish Parliament which has the power to legislate on all matters which have not explicitly been reserved for the Parliament of Westminster. The devolution scheme implemented by the Act leaves the principle of the sovereignty of the UK Parliament unaffected. Formally the Scottish Parliament has the status of a subordinate body and enjoys only some of the benefits traditionally associated with parliamentary sovereignty. Not only must the Scottish Parliament observe the limits of its legislative competence which derive from the reserved powers of the central government, but its legislative measures have also to comply with European Union law and with the rights guaranteed by the European Convention on Human Rights to the extent that they have been incorporated by the Human Rights Act 1998 (see IV. below).
A more limited devolution scheme has been enacted for Wales. Unlike in the Scottish case, devolution in Wales does not involve the transfer of primary law-making or taxation powers. The essential purpose of the Government of Wales Act 1998 was to place the existing Welsh administration and the non-departmental public bodies under the control of an elected Welsh Assembly. However, the reformed Government of Wales Act 2006 provides the introduction of a ministerial system and allows for the transfer of legislative powers in the devolved areas to the Assembly if the desire for such legislative devolution is backed by a majority in a referendum (see VII. 2. b) below).
The purpose of the Northern Ireland Act 1998 is to give legal effect to the substantive provisions of the “Good Friday Agreement” which established a comprehensive framework for a peaceful solution of the conflict in Northern Ireland. The system of devolution adopted for Northern Ireland followed closely the previous scheme of devolved government under the Northern Ireland Constitution Act 1973 and the precedent set by the Scotland Act 1998. The Act provides for the election of a power-sharing Assembly and the establishment of an Executive with a First Minister, a Deputy First Minister and ten ministers appointed under the d’Hondt procedure. The principles of “cross-community support” and “parallel consent” which govern the decision-making process in the Assembly and in the Executive on all important issues shall ensure that all sections of the Northern Irish community can participate fully in the work of the political institutions.
The Human Rights Act 1998 gives the UK for the first time a Bill of Rights. After a long debate which lasted more than two decades, the Labour government finally introduced legislation in Parliament with the aim of incorporating the main provisions of the European Convention on Human Rights into British domestic law. The purpose of the legislation is to allow people to argue for their rights and claim their remedies under the Convention in any court or tribunal in the United Kingdom, and at the same time to encourage British judges to make their own distinctive contribution to the development of human rights in Europe.
The House of Lords Act 1999 modified the composition of the House of Lords by removing the hereditary peers from the House. The reform remains incomplete to this date, as the selection of new life peers remains largely in the hands of the government of the day.
The Constitutional Reform Act 2005 was motivated by the desire to bring the UK constitutional framework into line with modern notions of separation of powers with regard to the relationship between the judiciary and the other two branches of government. The Lord Chancellor continues to be a member of the Government but is no longer Speaker of the House of Lords. He is now primarily an ordinary minister in charge of the Ministry of Justice which controls the administrative and financial aspects of the courts. His former functions of head of the judiciary in England and Wales and presiding judge of the Chancery Division of the High Court have been transferred to the Lord Chief Justice and the Chancellor of the High Court, respectively. The Act also created a Supreme Court for the United Kingdom which consists of 12 judges appointed by the monarch upon recommendation of the Prime Minister following a vetting process by a select commission. The UK Supreme Court has taken over the functions which were previously exercised by the Appellate Committee of the House of Lords.
The Constitutional Reform and Governance Act 2010 put the so-called Ponsonby Rule on a statutory footing by regulating the participation of Parliament in the ratification of international treaties.
The Fixed-term Parliaments Act 2011 established a fixed term of five years for the House of Commons and abolished dissolution under the Royal Prerogative. Early elections may now take place only if the government loses a confidence vote or if a motion for early elections is adopted by a two-thirds majority in the House.
The Succession to the Crown Act 2013 replaced male-preference primogeniture with absolute primogeniture, irrespective of gender, for those born in the line of succession after 28 October 2011, and ended the disqualification of a person who marries a Roman Catholic from the line of succession.
The European Union Referendum Act 2015 provided for a referendum to be held on the issue of UK membership in the European Union on a date no later than 31 December 2017.
The Scotland Act 2016 amends the Scotland Act 1998 and devolves further powers to Scotland following the majority decision of Scottish voters in the independence referendum of 17 September 2014 to remain part of the United Kingdom.
The European Union (Notification of Withdrawal Act) 2017 confers power upon the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU after the referendum of 23 June 2016 produced a majority in favor of leaving the European Union.
2. Case law
The other main source of constitutional law is found in the decisions of the superior courts which are stated in authoritative form in the law reports and are binding on inferior courts as precedents.7 Throughout history the judiciary has defined through case law the relationship between the institutions of the state—the Crown, the executive, Parliament, and the judiciary—and between the state and the individual. An illustration of the former can be found in a series of decisions of the courts in the early 17th century which narrowly defined the scope of the prerogative powers of the Crown and held that the King could not change any part of the common law or the statute law by way of proclamation.8 A more recent example is the ruling of the UK Supreme Court of 24 January 2017 holding that, following the majority vote in favor of leaving the European Union in the referendum of 23 June 2016, the withdrawal cannot be implemented by use of the prerogative powers alone but requires an Act of Parliament which formally authorizes ministers to give notice of the decision of the UK to withdraw from the European Union.9 Examples of the latter include the decision of the Court of Common Pleas in Entick v Carrington which held that a Secretary of State had no power to issue general warrants for the arrest and search of persons publishing seditious papers, expressly rejecting the view that measures of state authorities enjoyed a different legal status from those taken by private citizens and thus were not subject to the traditional common law principles governing the protection of property.10
Judge-made law takes two principal forms. The first form consists in the declaration and development of the relevant rules of the common law on constitutional issues. The common law is the body of laws and customs which have been recognized as law by the courts from early times onwards in deciding cases coming before them. The second way in which the judges contribute to the shaping of constitutional law is through the interpretation of statute law. The discretion of the courts in these cases is more limited since it has to be exercised in accordance with the rules of statutory interpretation, the most important of which is the rule that courts must always give effect to the intention of Parliament as expressed in the words of the statute.11 Nevertheless the contribution of the courts to the development of constitutional law through statutory interpretation has become increasingly important with the progressive codification of constitutional issues and the mushrooming of constitutional statutes (see 1. above). It is particularly important in the field of human rights where the Human Rights Act 1998 expressly authorizes and obliges the courts to read and give effect to primary and subordinate legislation so far as it is possible to do so in a way which is compatible with the rights protected by the European Convention on Human Rights (see s. 3 of the Human Rights Act and IV. below).
3. Constitutional conventions
Constitutional conventions form the most important class of non-legal constitutional rules. Conventions supplement the legal rules of the constitution and confine the practices of the constitution. As Ivor Jennings put it, they “provide the flesh which clothes the dry bones of the law” and make the legal constitution work.12
According to the definition given by A.V. Dicey, conventions are “understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all, since they are not enforced by the Courts”.13 Although conventions have a normative character insofar as they impose an obligation on those to whom they are addressed, they will not be enforced by the courts in case of violation or non-respect. This does not mean that the breach of a constitutional convention does not carry any penalties or sanctions at all; however, these sanctions are of a political rather than a legal nature: “A constitutional convention is a non-legal rule which imposes an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism: and that criticism will generally take the form of an accusation of ‘unconstitutional conduct’.”14
Conventions regulate many aspects of constitutional life, and in particular the exercise of the prerogative powers of the Crown and the functioning of parliamentary government.15 For example, while the monarch has the legal right to refuse the Royal Assent to Bills passed by the House of Commons and Lords, he/she is bound by convention to assent to such Bills unless advised to the contrary by her government. Similarly, the Queen will by convention appoint as Prime Minister the leader of the political party with a majority in the House of Commons. The Crown can only exercise the right to dissolve Parliament in conformity with the advice given by the government. The principle that Ministers of the Crown are individually and collectively responsible to Parliament is also based on convention, not on law; the same applies to the rules that Members of Parliament shall not criticize the judiciary and judges shall not play an active part in political life.
The sources of constitutional conventions cannot be easily identified and ascertained; they develop from an—informal or not yet formalized—political practice. On the other hand, what distinguishes the convention from a mere habit or practice is the conviction of the parties concerned that the conduct which is actually observed by them ought to be observed. Due to their informal character, it can be difficult to ascertain whether a convention has already developed. Many conventions are the result of a gradual hardening of usage over a period of years or generations. When political practices are observed with a sufficient degree of regularity, there will arise an expectation that they will continue to be observed—and often also a general conviction that they ought to be observed. In this respect, constitutional conventions differ greatly from the legal rules of the Constitution, the source of which will normally be found in a judicial decision or an Act of Parliament.
Even where it is generally agreed upon that a constitutional convention exists, it can be difficult to determine its precise contents. The core content of a legal rule will generally have a settled meaning which can be determined by making use of established methods of interpretation, for example be taking into consideration the will of the legislature or having regard to the purpose of the rule. In the case of constitutional conventions, however, things are far less certain. For example, the doctrine of collective responsibility is generally recognized as a constitutional convention. The convention requires that, in order to preserve public confidence in the government, the members of the Cabinet, the inner core of government, must speak with a united voice and may not disclose the contents of Cabinet discussions in public. Does the convention require, that not only members of the Cabinet—the Prime Minister and 16 to 20 senior Ministers—but also junior Ministers and their Parliamentary Private Secretaries follow the decisions taken in the Cabinet and refrain from speaking against them?
Similarly, breaches of conventions have no automatic or precisely defined consequences. For the most part the consequence of violating a convention is rather political than legal. In rare cases, a breach of a convention may lead in time to a breach of law. Much will depend on the contents of the particular convention, the extent of the breach and the political mood of the country at the time. Conventions are obeyed because of the political difficulties that will arise if they are not (Sir Ivor Jennings). Only exceptionally will their breach entail direct legal consequences. An example is the constitutional crisis in 1908 triggered by the decision of the House of Lords to reject the Finance Bill adopted by the House of Commons, thereby ignoring the conventional rule that the House of Lords will ultimately give way to the will of the elected House of Commons in legislative and financial matters. After its triumph in anticipated general elections the government introduced the Parliament Bill 1911 which abolished the power of the Lords to veto legislation indefinitely and replaced it with the right to delay the adoption of such legislation, subject to strict time limits. In this case where the breach of convention was deemed to be sufficiently grave to put at risk the functioning of the whole constitution the hitherto informal rules governing the exercise of the legislative veto power of the Lords were replaced with formal statutory rules which, by defining the veto powers of the House of Lords more clearly, in effect curtailed them.
It is widely assumed that courts can recognize conventions but that they cannot enforce them since these rules are not law.16 While this is true in most cases some conventions may indeed give rise to legal action if they are violated. An example is the Crossman diaries case in which the government sought an injunction to prevent the further publication of the diaries of Richard Crossman, a Minister in the Labour Government of Harold Wilson in the 1960s, on the ground that the publication of Cabinet papers and proceedings in the diaries violated the confidentiality of Cabinet proceedings. While the action ultimately failed—the High Court held that the maximum period for which publication could be restrained by the courts on the basis of the twin principles of collective responsibility and confidentiality of Cabinet proceedings had already lapsed at the time of publication—it succeeded in gaining judicial acceptance of the principle that a legal obligation of confidentiality attaches to the Cabinet proceedings which is enforceable in the courts.17
III. Basic Concepts of the UK Constitution
1. Parliamentary Sovereignty
a) Source of the legislative sovereignty of Parliament
The doctrine of Parliamentary sovereignty, or legislative supremacy of Parliament, has been recognized as the dominant characteristic of the UK constitution ever since it was identified as such by Dicey in his famous Introduction to the Study of the Law of the Constitution.18 The source of the legislative supremacy or sovereignty of Parliament remains somewhat unclear. While some authors have claimed that the source of the sovereignty of Parliament can be found in the relevant Parliamentary Acts themselves (most notably the Bill of Rights of 1689), others have argued that the decisions of the courts recognizing the legislative supremacy of Parliament as a fundamental principle of the common law constitute the main source for the doctrine of sovereignty.19 A third and intermediate view refuses to attribute the source of legislative sovereignty to the Parliament or the courts acting separately, and looks instead to the relationship between the legislature and the courts, and possibly other key actors of the political system, as the main foundation of legislative sovereignty.20
What is clear, however, is that that the doctrine of the legislative supremacy of Parliament arose from the judicial accommodation of political facts. Prior to the constitutional settlement of 1689, the law-making power of Parliament was neither unlimited nor unrivalled. For much of the preceding period the Crown had claimed and exercised an autonomous prerogative power to make laws without the consent of Parliament by way of ordinance or proclamation.21 It was not before the reign of James I that the courts were ready to declare that the King’s power to legislate by way of proclamation was under the law and that it cannot be used to alter the law of the land without Parliament’s consent.22 Nor were the courts at this stage ready to accept the unfettered legislative sovereignty of Parliament. In various decisions they indicated that they might be prepared to strike down Acts of Parliament which were contrary to common right or reason,23 although these were contradicted by other judicial statements proclaiming the absolute authority of Parliament. After the Revolution of 1688 and the Bill of Rights the restrictions of the powers of Parliament lost their legal significance. The courts tacitly accepted the obligation to give effect to every Act of Parliament, no matter how preposterous its content, thus gradually transforming the legislative supremacy of Parliament from a mere political fact into a fundamental rule of the common law.
b) Meaning and scope of legislative sovereignty
The classical definition of legislative sovereignty has been given by A. V. Dicey in his famous book on the Law of the Constitution. Essential to Dicey’s definition was the strict separation of the legal meaning of sovereignty from its political aspects and the recognition that legal sovereignty remains with the UK Parliament, although there may be political restraints which effectively inhibit the exercise of those powers. According to Dicey the principle of Parliamentary sovereignty “means neither more nor less than this, namely, that Parliament … has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”.24
From this definition three basic principles can be deduced which give the doctrine of parliamentary sovereignty its precise meaning:
(1) Parliament is the supreme law-making body and may enact laws on any subject-matter;
(2) Each Parliament enjoys the same unlimited powers as any Parliament before it. No Parliament can enact rules which limit future Parliaments in the exercise of its sovereign legislative powers.
(3) No person or body, including a court of law, may question the validity of Parliament’s enactments.
The first element of the sovereignty of Parliament means that there is no legal limit on the subject matter on which Parliament may legislate. In particular, there is no distinction between ordinary legislation and legislative measures which affect fundamental constitutional principles. Constitutional history shows a wide range of subjects on which Parliament may validly legislate.25 Thus Parliament extended its own life between 1910 and 1918 and once again between 1935 and 1945. Parliament may also legislate to alter the succession to the Throne, as happened with the adoption of the Act of Settlement 1700 and His Majesty’s Declaration of Abdication Act 1936. Parliament may even “abolish” and reconstitute itself as a different body, as occurred with the Union with Scotland Act 1706. Parliament may also legislate to alter its own powers as with the Parliaments Acts 1911 and 1949, whereby the powers of the House of Lords in the legislative process were curtailed. Parliament may grant independence to dependent states, whether dominions or colonies as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979. Furthermore, Parliament may legislate to limit its own powers in relation to dependent territories as shown by the Statute of Westminster 1931.
Nor is Parliament restricted by the substantive limits on the exercise of legislative powers familiar from countries with a written constitution. Thus Parliament may legislate with retrospective effect, as it did when it adopted the War Damage Act 1965. The War Damage Act 1965 effectively nullified the decision of the House of Lords in Burmah Oil Company v Lord Advocate which had granted compensation to the plaintiffs for the destruction of property caused by the exercise of the prerogative power of the Crown in relation to war during World War II in Burma.26
In order to constitute a valid exercise of legislative sovereignty, the enactment must take the form of an Act of Parliament. An enactment constitutes an Act of Parliament if it has been approved by each House of Parliament and has received the Royal Assent. In addition the Parliament Acts 1911 and 1949 authorize the presentation for Royal Assent of Bills which have not been approved by the House of Lords in certain circumstances (see V. 4. c) below). In the cases covered by the Parliament Acts, a valid Act of Parliament comes into being once it has been approved by the House of Commons and received the Royal Assent. In order to determine whether the instrument they have to apply is an Act of Parliament or some other written source of law, the courts will look to the Parliament roll: if it appears from the roll that a Bill has passed both Houses and received the Royal Assent, they will accept it as an Act of Parliament and not inquire into its validity. In particular, they will not examine the mode into which the Bill was introduced in Parliament or whether it was passed in conformity with the procedural requirements laid down in the Standing Orders of both Houses of Parliament since such enquiry would constitute, in the eyes of the courts, an illegitimate interference with the internal proceedings of Parliament.27
By contrast, resolutions of either House of Parliament do not have the force of law and cannot alter the law of the land. For the resolution to have the force of law it must be put on a statutory basis. Similarly, proclamations issued by the Crown or treaties entered into under the royal prerogative do not have the force of law. The same applies to instruments of subordinate legislation which are issued under the authority of an Act of Parliament by a minister, acts of a subordinate legislature such as the Scottish Parliament or the Northern Ireland Assembly (see below VII. 2.), or bye-laws made by local authorities or other public bodies.28
The second element of the doctrine of Parliamentary sovereignty concerns the ability of Parliament to bind its successors. No Parliament may be bound by its predecessor or bind its successor with regard to the substance or the form of any subsequent legislation. The subordination of one sovereign body to another sovereign body is regarded as a logical contradiction: a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment.29
The doctrine of implied repeal provides the mechanism by which the judges give effect to the rule that each Parliament must enjoy the same unlimited power as its predecessor. If Parliament repeals a previous law by expressly declaring that law to be repealed, there can be no doubt that the courts must give effect to the latest expression of the will of Parliament and are not entitled to apply the earlier Act. If, however, Parliament adopts an Act which, while not expressly repealing an earlier Act on the same subject matter, is inconsistent with it, the position is less clear-cut: the judges are faced with two conflicting statutes of which only one can be applied. Here the doctrine of implied repeal comes into play which requires the judge to apply the later statute on the basis of the assumption that the earlier statute has been implicitly repealed by its enactment since “the Legislature cannot. … bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature”.30
The question arises whether the principle that Parliament cannot validly bind its successors also applies to provisions which lay down particular procedures which must be undertaken in order to enact subsequent legislation. It was addressed in Harris v Minister of the Interior where the Supreme Court of Africa held that apartheid legislation passed by the new National Government which deprived colored voters in the former Cape Colony of their existing voting rights had not been passed with the two-thirds majority of the Union Parliament required by s. 152 of the South Africa Act for any repeal or alteration of the section on voting rights and was therefore void. The Court drew a distinction between a truly sovereign legislative body, such as the United Kingdom Parliament, and a legislative body which was less than sovereign. In the South African case, legal sovereignty was divided between Union Parliament as ordinarily constituted and Parliament as constituted under section 152 of the South Africa Act. The Separate Representation of Voters Act had not been passed in accordance with the provisions of sections 35 and 152 of the South Africa Act and did therefore not constitute a valid enactment of Parliament.31
A more recent UK case is Jackson v. Attorney General where the House of Lords discussed the question whether the House of Commons is prevented by the Parliament Act 1911 to apply the simplified procedure for the adoption of legislation also to Bills which the 1911 Act expressly excludes from its application (i.e. Private Bills, Bills originating in the House of Lords and Bills which prolong the life of Parliament). While the issue remained unresolved, the arguments put forward show that is much more difficult in the context of the UK political and legal system which lacks an “entrenched” constitution to argue in favor of certain “inherent” limitations in the exercise of Parliament’s law-making powers.32
The third element of parliamentary sovereignty concerns the principle that the courts will not inquire into the validity of a statute once it has been established that the instrument before it is an Act of Parliament. In earlier times, before the 1688 settlement, it was not uncommon for judges to proclaim that an Act of Parliament could be held to be invalid because it conflicted with some higher form of divine law. In Dr Bonham’s Case, there is the often cited obiter dictum of Coke CJ to the effect that “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void”.33 Such views, while historically playing an important role in preparing the ground for the establishment of constitutional review in other common law jurisdictions, have no authority in the legal system of the UK today. The modern view is that if an Act is expressed to have been enacted by Queen, Lords and Commons, the courts will not inquire whether it was properly passed or represents the will of Parliament.34
c) Limits of Parliamentary sovereignty
In recent years the doctrine of parliamentary sovereignty has been at the heart of a process of constitutional change which has placed considerable legal and political constraints on the exercise of the legislative supremacy of Parliament.
(1) Most important are the constraints imposed by Britain’s membership in the European Union. Britain’s obligation to honor its treaty commitments under international law is not normally seen as an infringement of parliamentary sovereignty: an Act of Parliament is enforceable by British courts even if it breaches Britain’s treaty obligations—although courts shall avoid such conflicts as far as possible by interpreting statutes that give effect to Britain’s treaty obligations so as to conform with the treaty.35 Things are different with the European Union/European Communities, however. Unlike most other international organizations, the treaties establishing the European Union/the European Communities vest broad executive, legislative and judicial powers in the Community organs (i.e. the Council, the European Parliament, the Commission and the European Court of Justice). Regulations adopted by the Council with the consent of Parliament upon proposal of the Commission are directly applicable in all member states as soon as they have been promulgated. Treaty provisions and secondary legislation (i.e. regulations and directives adopted by the Community organs in the procedure provided for by the relevant Treaty provisions) may create rights that are directly enforceable by individuals in national courts without needing to be implemented by national legislation.36 The Court of Justice, the supreme judicial body of the European Union, has long adopted the view that by becoming members of the Community, member states have limited their own legislative competence in Community matters, conferring the supreme power to legislate on these matters on the law-making institutions of the Communities. According to the Court, Community law cannot be overridden by domestic law, regardless of the rank (constitutional or sub-constitutional) of the legislation in question, without being deprived of its character as Union law and without the legal basis of the Union being called into question.37
When the United Kingdom acceded to the European Communities in 1972, the view taken by the government was that no absolute legislative undertaking by Parliament should be given since a future Parliament might disregard it. Instead, the accession legislation went as far as was thought possible in instructing British courts how to apply Community law in the future. This was done by the adoption of the European Communities Act 1972. Section 2 (1) of this Act gives effect within the United Kingdom to all rules of Community law which have direct application or direct effect within Member States. This applied both to existing and to future Community rules. By section 2 (4) it was, inter alia, provided that “any enactment passed or to be passed, other than one contained in this part of the Act, shall be construed and shall have effect subject to the foregoing provisions of this section”—subject, in other words, to the comprehensive reception of Community law provided for by section 2 (1). Further, by section 3, questions of Community law were to be decided by the European Court of Justice or in accordance with the decisions of that Court, and all courts in the United Kingdom were required in future to take judicial notice of decisions made by the European Court.
When these provisions were debated in Parliament, it was widely agreed that they did not exclude the possibility that the United Kingdom Parliament might one day wish to repeal the Act and thus effectively prevent the continued operation of Community (European Union) law within the United Kingdom. In this sense the ultimate sovereignty of Westminster was not affected, as the UK Supreme Court later recognized in its ruling in Ex parte Miller:
“. … this [ ] state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute. For that reason, we would not accept that the co-called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal.”38
But there was for many years uncertainty about a less extreme situation, i.e. that an Act passed after 1972 was found to contain a provision inconsistent with an established rule of Community law. Should the British courts in this situation follow the position of the European Court of Justice and give precedence to Community law or should they, as Parliamentary sovereignty and the doctrine of implied repeal would suggest, hold that the later Act of Parliament overrides the 1972 European Communities Act, including sections 2 and 3? The case-law under the 1972 Act did not at first speak with a certain voice. Initially the British judges were inclined to avoid finding clashes and inconsistencies between the domestic law and Community law. In 1974, Lord Denning MR said that the “incoming tide” of Community law could not be held back. “Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute”.39 Relying on section 2 (4) of the European Communities Act the courts took the view that, wherever possible, national legislation was to be interpreted and applied so that it did not conflict with Community law. In Garland v. British Rail Engineering Ltd. Lord Diplock stated that where a statute relating to British treaty obligations had to be construed, and the statutory words were reasonably capable—‘without undue straining of the ordinary meaning of language’—of bearing a meaning that was consistent with those treaty obligations, they should be given that meaning.40
The difficult question what courts should do if Parliament legislated inconsistently with existing Community law eventually arose in R v Secretary of State, ex parte Factortame Ltd. which concerned the compatibility of the Merchant Shipping Act 1988 with several provisions of Community law, namely the freedom of establishment. The Act introduced conditions relating to nationality, domicile and residence in the United Kingdom which fishing-boat operators had to satisfy before their boats could be registered under the Act. Only boats registered in accordance with the Act could benefit from the EC fishing quota allocated to the United Kingdom. The measure was designed to prevent foreign fishing boat-operators from benefiting from the British quota by forming companies in the UK to which their boats were then transferred. Spanish fishing boat-operators claimed that these provisions were incompatible with the freedom of establishment granted to workers and companies of member states under Community law. Fearing that they would have to stop fishing once the Act came into force and that they would not be able to recover the resulting losses even if the European Court of Justice would later find—as it duly did41—that the legislation was incompatible with Community law, they filed a petition for interim relief in the British courts in order to suspend the operation of the Act until the Luxembourg Court would render its decision on the issue of compatibility.
The House of Lords at first denied interim relief, holding that it had no jurisdiction to set aside an Act of Parliament which, in accordance with the traditional understanding of Parliamentary sovereignty, must be presumed to be valid until the contrary had been shown.42 However, it referred to the European Court of Justice in the preliminary reference procedure the question of whether there was an overriding principle of Community law which required national courts to grant effective interim protection for Community rights. When the Court of Justice answered in the affirmative, holding that the principle of uniform application of Community law rendered automatically inapplicable any conflicting provision of national law and any rule or practice that might withhold from national courts the power to secure the full effect of Community law,43 the House of Lords in the second Factortame decision duly granted an interim injunction against the Secretary of State from removing the Spanish-owned ships from the register of British fishing vessels. In doing so, it plainly recognized the constitutional implications of EU membership for the exercise of Parliamentary sovereignty:
“If the supremacy … of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act was entirely voluntary.”44
Since the Factortame decision it was thus recognized that British courts must not apply national legislation, including Acts of Parliament, if to do so would conflict with Community law. Factortame made clear to everybody that British membership in the European Union/the European Communities has resulted in a significant change in the way in which Parliamentary sovereignty operates, transferring the supreme power to legislate on matters of Community law to the law-making institutions of the European Union/the European Communities. Not surprisingly, the desire to wrest back full control over domestic legislation from EU institutions featured prominently on the agenda of the political forces supporting the “Leave” campaign in the referendum on continued membership in the European Union of 23 June 2016. Following the victory of the “Leave” camp in the referendum and the formal notification of the European Union that it intends to withdraw from the EU in accordance with Article 50 (2) EU Treaty by the UK government on 29 March 2017, the government has introduced a Great Repeal Bill in Parliament which will end the primacy of EU law in the UK legal system. The Bill provides for repeal of the European Communities Act 1972 on exit day (i.e. 29 March 2019). Direct EU legislation, so far as operative immediately before exit day, will be incorporated into domestic law on that date and will remain in force, just like EU-derived domestic legislation, unless and until it is amended or repealed by Parliament. However, UK courts will no longer be bound in the interpretation of this law by any decisions issued by the Court of Justice of the European Union issued on or after exit day.
(2) Parliamentary sovereignty has also been affected by the incorporation of the European Convention on Human Rights into domestic law by means of the Human Rights Act 1998 (see below IV.). The Human Rights Act 1998 imposes a strong duty on all bodies and persons who apply legislation, including courts and tribunals, to read and give effect to primary and subordinate legislation in a way which is compatible with the incorporated Convention rights, so far as it is possible to do so.45 Where it is not possible to read and give effect to subordinate legislation in a way which is compatible with the Convention rights, such legislation may be quashed or suspended, except where the parent Act under which the legislation was made prevents removal of the incompatibility.46 Where it is not possible to read and to give effect to primary legislation in a way which is compatible with Convention rights, such legislation continues in full force, but the High Court or other superior courts may make a declaration of incompatibility. While such a declaration does not in itself affect the validity or continued operation of the statutory provision in question, it enables the government by means of fast-track delegated legislation to take action to remove the incompatibility where there are compelling reasons to do so.47
While the scheme enacted by the Human Rights Act 1998 thus denies the courts the formal power to strike down or suspend Acts of Parliament, it goes a long way toward the establishment of judicial review of statutory legislation for human rights violations in all but name. If a superior court makes a declaration of incompatibility because it finds that a statutory provision infringes Convention rights, the government normally will not hesitate to take the necessary remedial action. It would be surprising if the person whose rights have been infringed by the legislation would not have recourse to the European Court of Human Rights in Strasbourg if no swift remedial action were taken. While Parliamentary sovereignty has thus been preserved in formal terms, in substance the legislative supremacy of Parliament which it implies has been subjected to an important measure of judicial control.48
(3) Less constraining but still noteworthy are the limits imposed on Parliamentary sovereignty by the devolution legislation. The Scotland Act 199849 confers power on the Scottish Parliament to make laws on any matter except those that are declared by the Act to be outside its legislative competence. The power to make laws on all matters that are not reserved (such as education, local government, criminal justice, social services, the environment) necessarily includes the power to amend or repeal existing Acts of the Westminster Parliament. However, its continuing sovereignty is expressly recognized by section 28(7) of the Act which declares that the provisions on the legislative powers of the Scottish Parliament do not affect the power of the Parliament of the United Kingdom to make laws for Scotland. While the provision is unnecessary in strictly legal terms it serves as a reminder to those unfamiliar with the established Diceyean view of parliamentary sovereignty that the application of the rules on devolution continues to be subject to that principle. While many expected that the use of the legislative powers by Westminster on matters which were devolved to the Scottish Parliament would be a rare event at the time of the passing of the Scotland Act 1998, this has in fact been a frequent occurrence, mainly in relation to administrative schemes applying throughout Great Britain.50 However, this practice has given rise to a new Convention, the so-called Sewel Convention, by which the Scottish Parliament by way of resolution grants its approval to proposed new legislation on devolved matters before it is enacted by the Westminster Parliament. While this leaves unaffected the legal power of the Westminster Parliament to legislate on devolved matters without the prior consent of the Scottish Parliament, it raises the political costs for its exercise since any breach of the Sewel convention would be likely to provoke much criticism in Scotland, and might even push it further down the road toward full independence.51
2. The Royal Prerogative
The Royal Prerogative comprises the powers which are attributed to, and are exercised in the name of, the Crown. According to Blackstone, the prerogative refers to
“that special pre-eminence which the King hath over and above all other persons, and out of the ordinary common law, in right of his regal dignity. It signifies . … those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects”.52
By contrast, Dicey’s definition stresses the residual character of the prerogative powers: “The prerogative is the name for the remaining portion of the Crown’s original authority, . … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the Queen herself or by her Ministers. Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative”.53
a) Diminishing scope of prerogative powers
Before the constitutional settlement of 1688, the Crown enjoyed far-reaching prerogative powers. These powers extended to almost all sectors of state activity and can be illustrated by a description of regal powers with regard to law-making, taxation and the administration of justice. These included the power to legislate by way of proclamation (see 1. a) above), the power to dispense with statutes and suspend their application,54 the power to collect revenue from the land (linked to the position of the monarch as ultimate lord of all land), the right to regulate trade, including the power to establish, open and close ports, the power to levy taxes for the defence of the realm,55 and the power to provide for the administration of justice, including the power to dispense justice in his own name56 and to establish new courts. However, with the constitutional settlement of 1688 the supremacy of Parliament was established and the expansion of the prerogative powers came to an end. From this time, the prerogative powers of the Crown continued in existence or were abolished or curtailed as Parliament determined. No new prerogatives may be claimed by the Crown. However, since neither the Bill of Rights of 1689 nor any subsequent Act of Parliament gave a comprehensive and definitive list of the prerogative powers which continued to exist after the constitutional settlement, there exists considerable uncertainty as to the nature and the scope of the remaining prerogative powers. It is the task of the courts, whenever the question arises, to ascertain whether a particular prerogative power still exists and what its precise meaning is.
The examination of the precise scope of the prerogative is fraught with difficulties, because some prerogatives are no longer used, others are of a doubtful existence and some continue to exist merely because no one has thought it worthwhile to abolish them. Nevertheless, it is possible to distinguish between two categories of prerogative powers, those relating to domestic affairs and those relating to foreign affairs. Within the domestic powers fall the summoning and the dissolution of Parliament, the Royal Assent to Bills, the granting of honors, the prerogative of mercy and the regulation of the terms and conditions of the Civil Service. Under prerogative powers in the field of foreign affairs can be subsumed the power to make declarations of war and peace, the power to enter into treaties, the recognition of foreign States, diplomatic relations, disposition of the armed forces overseas. While some of the prerogative powers are exercised by the Government in the name of the Crown, others are exercised by the Crown personally, in particular the dissolution of Parliament and the appointment of Ministers. However, even where the monarch exercises prerogative powers in person, as in the case of a dissolution of Parliament, he or she by convention acts upon advice of the Government and thus does not enjoy any genuine discretion.
In particular, the Crown has no law-making powers other than those which are ancillary to the prerogative powers it enjoys with regard to specific areas, like the power to regulate the terms and conditions of the Civil Service and to provide for the defence of the realm. These law-making powers are of limited scope, however, since in accordance with the established principle of Parliamentary sovereignty the law of the land can only be altered and rights and duties of the citizens can only be established or modified by virtue of an Act of Parliament. Accordingly a treaty cannot alter domestic law without being given effect by an Act of Parliament. In Blackburn v Attorney-General an action was brought against the Government which claimed that by signing the Treaty of Rome establishing the European Community the government would irreversibly surrender part of the sovereignty of the Queen in Parliament to the European Communities and in doing so would breach the law. But the claim was dismissed by the Court of Appeal which held that the Ministers of the Crown who negotiated and signed a treaty, even a treaty of such paramount importance as the Treaty of Rome, exercised the prerogative of the Crown and that their action in doing so could not be challenged or questioned in the courts since it did not by itself change the law of the land.57 The treaty-making power of the executive was challenged once again in R v Secretary of State ex parte Rees-Mogg which raised the issue whether the government had the power to ratify the Maastricht Treaty which reformed the Treaties establishing the European Communities and created the European Union without the approval of the House of Commons. A constitutional convention exists whereby the government undertakes to lay every treaty, when signed, for a period of 21 days before Parliament and to inform the House of all other international agreements and commitments which may bind the nation to specific action in specific circumstances (Ponsonby rule). The conventional rule also includes the commitment on the part of the government to make time for debate on a treaty if there is a formal demand from the opposition or other party. It was clear that there was substantial opposition to the Maastricht Treaty on all sides of the House, and the government was not confident that any vote would approve the treaty. Therefore the Prime Minister announced that if necessary the Treaty would be ratified under the prerogative, thus avoiding the risk of parliamentary disapproval. The High Court refused to grant an application of judicial review of the government’s decision by holding that the decision was legally within the prerogative of the Crown.58
b) Prerogative and statute
The basic rule governing the relationship between statute and prerogative was formulated by the House of Lords in Attorney-General v de Keyser’s Royal Hotel. During the First World War the Government took possession of De Keyser’s Royal Hotel in London for the accommodation of staff officers. Afterwards the owners of the Hotel sued the Crown for compensation for the use and occupation of the hotel. The main ground of their claim was that the Hotel had been taken under the Defence Act 1842 which provided for compensation. The Government’s reply was that the hotel had been occupied under the prerogative power to take property for the defence of the realm, which it was contended did not imply a duty to pay compensation. The House of Lords rejected this line of reasoning and held that it would be useless and meaningless for the legislature to impose restrictions and limitations upon the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions and by virtue of its prerogative do the very thing the statute empowered it to do. When a statute, expressing the will and intention of the King in Parliament, was passed, it would abolish the Prerogative to the extent that the power conferred by it could only be exercised in the manner and subject to the conditions provided for by the relevant statutory provisions. Since the Defence Act 1842 had regulated the acquisition of property for defense purposes, the taking could only be justified by the statute, and its provisions as to compensation had to be observed.59 The De Keyser’s case thus established the rule that where an Act of Parliament regulates a matter previously falling under the prerogative, the statute will prevail, even if it does not expressly abolish the prerogative. The prerogative power is set aside for the duration of the life of the statute. Should the statute be repealed, the prerogative will once more come into operation.
The relationship between statutory law and the prerogative is not always so easily defined. Sometimes statute and prerogative co-exist, for Parliament may have provided additional or alternative powers without intending to abridge the prerogative. Some statutes, like the Immigration Act 1971, expressly preserve the prerogative.60 In other cases, it is a matter of construction of the relevant statute whether it has displaced, in whole or in part, a pre-existing prerogative. The relationship between statute and prerogative power was a central issue in Re v Secretary of State for the Home Department ex p. Northumbria Police Authority. Section 4(4) of the Police Act 1964 provides that the police authority for a police area may provide and maintain such vehicles, apparatus, clothing and other equipment as may be required for police purposes of the area. In May 1986 the Home Secretary sent a circular letter to chief officers of police and police authorities, saying that several items of modern equipment (plastic bullets, CS gas) would be made available to chief officers of police from a central store, for use in situations of serious public disorder. A police force might be supplied with these items even if the police authority did not agree, if the chief constable’s request for them was endorsed by an Inspector of the Constabulary. The Northumbria Police Authority, in an application for judicial review, sought a declaration that the circular was ultra vires, arguing that the Home Secretary had no power to issue plastic bullets or CS gas to a chief constable without the consent of the local police authority.
The Divisional Court held that the only statutory power of equipping police forces was that conferred on police authorities by section 4(4) of the Police Act, but that the Home Secretary could make use of a prerogative power to supply a police force with equipment needed for the maintenance of peace. It was reversed on this point by the Court of Appeal which held that the power granted by section 41 of the Act to the Home Secretary to provide and maintain services for promoting the efficiency of the police also covered the supply of equipment by the minister to a police force without the consent of the local police authority. The Court then went on to determine whether such power was also available under the royal prerogative. Stating that there was undoubtedly a prerogative of defence of the realm, or war prerogative, the Court argued that this prerogative must be seen as part of a wider prerogative of protection which extended as much to unlawful acts within the realm as to menaces of a foreign power. There was no historical or other reason for denying to the war prerogative a sister prerogative of keeping the peace within the realm. Nor had the prerogative to keep the peace within the realm been curtailed or abolished by the Police Act. In particular section 4 of the Police Act could not be construed so as to grant a monopoly to the local police authority for the supply of police equipment. Unlike the executive action taken under the prerogative in De Keyser’s Royal Hotel which had resulted in the violation of individual property rights, the executive action under scrutiny in the case at hand was directed towards the benefit or the protection of the individual. Before the courts would hold that such executive action is excluded by statute, express terms must be found in the relevant legislation which unequivocally deprive the individual from receiving the protection intended by the exercise of the prerogative power. As the Police Act 1964 did not contain such terms, the appeal was dismissed.61
The Northumbria Police Authority case illustrates that the distinction between identification and extension of the royal prerogative is a fine one. Although it has been affirmed that “… it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative”62 Northumbria suggests that the position adopted by the courts is in fact a more nuanced one and that they will take into account the nature of the prerogative power and the purpose for which it is used when defining its scope. Prerogative powers which are directed towards the benefit or the protection of individuals are thus more like to receive a broad interpretation and definition than those powers which are on the contrary designed to limit or to infringe individual rights.
c) Judicial review of prerogative powers
The question arises whether the courts can control the lawfulness of the exercise of an existing prerogative. The subordination of the prerogative power to statute (see b) above) implies that the courts must check whether the prerogative power in question has been abolished or restricted by statutory law. If the statute has regulated the subject matter of the prerogative without abolishing the latter altogether, the exercise of the prerogative must henceforth conform to the requirements of the statutory regulation.63 Where there is no relevant statutory law, it seems at first sight that the executive would enjoy unfettered discretion how to exercise its prerogative powers. However, even in the absence of statutory law the exercise of the prerogative may be in conflict with individual rights or certain legitimate expectations protected by law.
The question whether the executive is bound to observe these rights and expectations in the exercise of its prerogatives was addressed in the decision Council for Civil Service Union v Minister of State for Civil Service. The Civil Service Order in Council 1982—adopted under the prerogative power of the Crown to regulate the Civil Service—gave power to the Minister for the Civil Service—at the time of the litigation, the Prime Minister—to regulate the terms of employment for members of the Civil Service. Acting under the Order in Council, the Prime Minister terminated the rights of workers at the Government Communications Headquarters in Cheltenham (GCHQ) to belong to trade unions. They were only allowed to join a departmental staff association approved by the director of the Communications Headquarter. The order followed industrial unrest which threatened to disrupt the interception of intelligence signals. The Union challenged the order under judicial review proceedings, claiming that they had a legitimate expectation to be consulted prior to their rights of membership being withdrawn. The Unions won at first instance, but lost both before the Court of Appeal and the House of Lords.
There was no unanimity among their Lordships as to the extent to which the exercise of prerogative powers may be reviewed by the courts. Lord Fraser, in his statement, distinguished between powers which are exercised directly under the prerogative—like the power to negotiate international treaties or to dispose of the armed forces overseas—and powers which have been delegated to the government by the Sovereign under the prerogative. Lord Fraser held that all powers exercised directly under the prerogative were immune from challenge in the courts, but that powers which had been delegated by the sovereign would normally be subject to judicial control to ensure that they are not exceeded (the argument was based on a parallel to the control of secondary legislation under a parliamentary statute in accordance with the ultra vires principle). Since in the present case the Prime Minister had used powers conferred upon her by delegation of the Sovereign, her decision was in principle subject to judicial review. The other judges, however, did not follow this line of reasoning. Lord Scarman rejected the distinction based on the source of the prerogative power. The widened scope of the law relating to judicial review evident in the contemporary jurisprudence of the courts, he said, made such a distinction unnecessary. The controlling factor in determining whether the exercise of prerogative power was subject to judicial review was not its source but its subject matter. The question therefore arose whether the use of the prerogative power to regulate the terms of employment for members of the Civil Service by the Prime Minister had been lawful. Their Lordships recognized that a legitimate expectation of the employees to be consulted before their rights of membership in the trade unions were withdrawn did indeed exist. However, the legitimate expectation of prior consultations could be superseded by considerations of national security. The decision whether the requirements of national security outweighed the duty to consult was for the government: the courts could not substitute their own judgement what national security did or did not require for the assessment undertaken by the government. The court could only verify, on the basis of the evidence made available to it, whether the decision of the Prime Minister had indeed been motivated by considerations of national security. If this was the case, the courts could not review the decision on its merits; national security was a non-justiciable matter. In the case at hand the House of Lords came to the conclusion that the evidence available supported the view that the Prime Minister did indeed consider that prior consultation would have involved the risk of disruption at the Government Communication Headquarters. It was therefore a decision based on concerns of national security which was not justiciable before the court.64
On the basis of the decision of the House of Lords in the GCHQ case, the exercise of prerogative powers of the Crown is, in principle, subject to judicial review in the same manner as the exercise of powers conferred by statute. However, a number of matters are still outside the scope of judicial review: the appointment of Ministers, dissolution of Parliament, grant of honors, treaties, and, above all, matters of national security continue to be inappropriate subjects for judicial review in accordance with this jurisprudence. In other areas, however, the courts have gradually whittled down the judicial immunity granted to measures taken under the prerogative. In R v Home Secretary, ex parte Bentley it was held that some aspects, at least of the exercise of the prerogative of mercy, are amenable to judicial review, notwithstanding authority to the contrary.65 In R v Foreign Secretary, ex parte Everett it was established that the power to issue a passport is now subject to judicial review.66
Perhaps the most striking example of the new readiness of the courts to examine the lawfulness of the exercise of the prerogative is provided by R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others. A criminal injury compensation scheme had been introduced under the Crown’s prerogative powers in 1964. This scheme provided for compensation of victims of violent crime on a case by case basis calculated substantially on common law principles applicable in actions for tort. The Criminal Justice Act 1988, an Act of Parliament, put this scheme on a statutory basis. The relevant section of the Criminal Justice Act was to come into force “on such day as the Secretary of State … may appoint”. No such appointment was made and the non-statutory scheme remained in operation. In 1993 the Home Secretary indicated that the enacted provisions would “not now” be brought into force but would be repealed at a suitable moment. The existing compensation scheme was to be replaced by a new tariff scheme under which awards to the victims of violent crime would be made ex gratia, by reference to a tariff fixed according to particular categories of injuries. It was to be expected that this new scheme would considerably reduce the benefits available to crime victims, especially for victims of very serious injuries involving prolonged loss of income. The House of Commons, in the Appropriation Act 1994, had approved the appropriation of a specified amount of money for the operation of the new tariff scheme.
In proceedings for judicial review the applicants, representing persons liable to suffer injury as victims of violent crime, sought to obtain a declaration by the court that the Secretary of State, first, had acted unlawfully by failing to bring into force the enacted compensation scheme and, secondly, had acted in abuse of his prerogative powers by introducing the new tariff scheme. On appeal the House of Lords ruled that the decision not to implement the statutory scheme and to introduce instead an alternative scheme under the prerogative was unlawful. The Home Secretary could not lawfully surrender or release the power granted by the Act so as to purport to exclude its future exercise. The introduction of the tariff scheme constituted an abuse of the prerogative since in doing so the Home Secretary had debarred himself from exercising his statutory power for the purposes and on the basis which Parliament intended when it adopted the Criminal Justice Act 1988.67
d) Reform of the prerogative
Recent years have seen considerable progress in further reducing the scope of the prerogative and bringing it under parliamentary control. This development has been the result of both statutory enactments and judicial ruling. The Constitutional Reform and Governance Act 2010 put the Ponsonby rule on a statutory footing. In essence, this means that the government can no longer ratify an international treaty if a majority in the House of Commons consistently objects to the ratification. Similarly, the Fixed-terms Parliament Act 2010 has abolished the power of the Prime Minister under the Prerogative to call a general election at any point during the legislature. The House of Commons now plays the central role in triggering early elections, either by voting against the government in a confidence vote or by adopting a motion for anticipated elections by a two-thirds majority. In a further move indicative of the reduced scope of the royal prerogative, including in foreign and defense matters, the UK Supreme Court on 24 January 2017 held that the government did not have the power under the Prerogative to notify the European Union of its intention to withdraw from the European Union following the majority vote in favor of leaving in the referendum of 23 June 2016 without Parliament’s prior authority.68
However, reform proposals to put parliamentary oversight and control on a statutory footing also with regard to other prerogative powers, including the power to deploy British troops abroad, the power to grant pardons; the power to issue, refuse to issue, revoke or withdraw passports; the prerogative of mercy, have remained unsuccessful so far.
3. Rule of Law
It was once again Dicey who provided the classic definition of the Rule of Law in British constitutional law. For him, the Rule of Law distinguishes the British constitution from all other constitutions. It contains at least three elements:
“It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government. … ; a man may with us be punished for the breach of law, but he can be punished for nothing else. … . It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. … . The “rule of law”, lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land”.69
The first principle excludes a system of government based on the exercise by those in authority of wide or arbitrary powers of constraint.70 The second principle means that nobody is above the law, that officials like private citizens are under a duty to obey the same law, that their actions are not governed by a special set of rules (droit administratif) which in cases of dispute are interpreted and applied by a special set of courts (administrative law courts or tribunals).71 And the third and final principle suggests that the rights of the individual in Britain are not secured by formal guarantees set out in written constitutional documents (constitutional codes) but by the decisions of the courts applying the ordinary law of the land.72
While Dicey’s approach captured well the essence of the Rule of Law as it was perceived by 19th century liberalism, it is less helpful in defining the meaning of the concept in present day circumstances. For one thing Dicey did not understand well the role of discretionary authority for the development of a modern administrative law. It is impossible to imagine a modern administration implementing government policies efficiently without enjoying at least some measure of discretion as to the way in which best to implement them. Attention today concentrates on the establishment of appropriate legal standards by which the exercise of discretionary powers may be controlled, not on their complete abolition. That British law has been comparatively slow in developing adequate standards for the judicial control of the exercise of discretionary powers by administrative authorities may also be due to Dicey’s influence. There is little doubt that he would have regarded as arbitrary many of the powers of government on which the successful management of the economy and the delivery of public services frequently depend.
Dicey’s understanding of equality before the law, on the other hand, was a fairly limited one. He did not have in mind an equal protection clause like the one contained in the US Constitution which also binds the legislature and enables legislation to be invalidated when it distinguishes between citizens on grounds which are irrelevant to the subject matter in question like race, sex, origin or religious conviction. The meaning he attached to the equality principle was that all citizens including officials were subject to the jurisdiction of the ordinary courts should they transgress the law which applied to them, and that there were no separate administrative courts, as in France, to hear the complaints of unlawful conduct by officials. He believed that administrative law favored the officials. Today it is well recognized that the legal protection of the citizens against unlawful official conduct is as efficient, if not more efficient, in legal systems which entrust the settlement of administrative law disputes to a specialized set of courts as it is in countries like Britain in which the jurisdiction of the ordinary courts also covers litigation between government officials and citizens concerning the proper conduct of the former in the exercise of their official duties.
Finally, Dicey’s third meaning of the Rule of Law, which he summarized in the conclusion that the constitution is the result of the ordinary law of the land, expressed a strong preference for the principles of common law declared by the judges as the basis of citizen’s rights and liberties. From a modern perspective it is difficult to share Dicey’s trust in the common law as the most efficient means of protecting the citizen’s liberties against the state. In the first place, the common law is subject to modification by statute in accordance with the well established principle of the legislative supremacy of Parliament (see 1. above): the most fundamental liberties may thus be abolished or curtailed by statute. If this is only a theoretical possibility today, this is less to due to intrinsic qualities of the common law than to the British political culture and the influence of European, especially of European human rights law (see IV. below). Moreover, the common law has traditionally focused on the protection of property rights and contractual relationships, concepts which are inadequate to deal with the problems raised by the growth of the welfare state and the protection of privacy rights. And while it remains essential that legal remedies should be effective, the experience of many Western countries shows that it is important to impose certain general limits on the powers of Parliament to infringe human rights and not to leave it to the decision of the courts in every individual case if, and to which extent, such rights are to be protected.
The modern discussion on the Rule of Law in Britain therefore displays many features which are known from similar discussions in other countries and from the general debates in constitutional theory and legal theory. Generally speaking, two main concepts of Rule of Law can be distinguished.73 The first “formal” concept of Rule of Law stresses the value of the inherent formal qualities of the law like generality, certainty, predictability, transparency etc. as potential barriers to arbitrary rule. However, it is unclear whether the common law with its focus on judge-made, case-specific law and its recognition of an essentially unfettered legislative supremacy of Parliament is ideally suited to this concept of Rule of Law. From this point of view the notions of “natural justice, procedural fairness and due process” seem more in tune with the traditional strengths of the common law which has long recognized that adjudicative mechanisms of one form or another are necessary to provide procedural checks on discretion in order to comply with the requirements of the Rule of Law.74 The alternative view of the Rule of Law stresses its substantive elements, i.e. the protection of the dignity and liberty of the individual as the main objectives which the Rule of Law is designed to serve. This concept is centered on the effective protection of fundamental rights and the comprehensive review of all state measures interfering with these rights as the main elements of the Rule of Law. In Britain this approach has gradually been asserted with the strengthening of judicial review of administrative action since the late 1970s and has been given new impetus with the incorporation of the European Convention on Human Rights into domestic law by the Human Rights Act 1998.75
4. Separation of Powers
In contrast to other countries (US, France) the principle of separation of powers has had little impact on the development of modern English constitutional doctrine.
“There is not, and never has been, a strict separation of powers in the English constitution in the sense that legislative, executive and judicial powers are assigned respectively to different organs, nor have checks and balances between them been devised as a result of theoretical analysis. Development of our public institutions has been mainly empirical.”76
The traditional British view saw in the democratic control of the executive through the House of Commons and the party system, not in a formal separation of powers, the main safeguard against bureaucracy and tyranny. As far as the relationship between the legislative and executive branches of government is concerned, the British system has been described as one of close union, or nearly complete fusion, of the executive and legislative powers.77 The executive is formed from the majority party in the House of Commons. The Prime Minister, the Chancellor of the Exchequer and other senior ministers sit in the House of Commons, and indeed by convention cannot hold office until they hold such a seat. Most of the legislation passed by the House of Commons is initiated by the government, which controls by means of party discipline the parliamentary majority. Except on the rare occasions when there is a significant party split, the government works closely with, and in effect dominates, the legislature.
By contrast, the need for an effective separation of the judiciary from the other branches of government has long been recognized. A substantial measure of protection for judicial independence was already provided by the Act of Settlement 1700 which stipulates that a judge may only be removed from office either for misbehavior or for other cause following an address from both Houses of Parliament. In addition, the courts are generally anxious to safeguard the judicial function against attempts of usurpation by the executive. This is confirmed by a number of decisions where they have interpreted very narrowly statutory provisions intended to limit or even exclude the judicial review of administrative action. A common justification for these rulings is that there is a presumption that Parliament did not intend the courts’ jurisdiction to be excluded, so the judges are giving effect to the will of the legislature in construing the relevant provisions narrowly.78 But this was never a very strong argument. The separation of powers principle provides a more convincing explanation, and in effect justifies what is in practice a restraint on the principle of parliamentary legal supremacy of Parliament.
On the other hand, the British judicial system retained until quite recently some features which went back to medieval traditions and clearly at odds with the modern concept of separation of power. The function of supreme appellate jurisdiction was exercised by a committee of the House of Lords, although by convention this function was reserved to people with special legal expertise, the “Law Lords”, while lay peers would not take part in the deliberations of the House of Lords as an appeal court. Still more striking was the position of the Lord Chancellor which was often described as a “walking contradiction of the separation of powers.”79 He was a member of the Cabinet while at the same time serving as the head of the judiciary (with an important role in judicial appointments) and as Speaker of the House of Lords (with the right to take part in the deliberations of the Appellate Committee of the House of Lords, although by convention he would not sit on cases of an overtly political nature).
However, the entry into force of the Human Rights Act 1998 (see IV. below) seems to have increased the awareness of judges and politicians alike with regard to the need for a clear separation of powers. In Hooper Lord Hoffmann stressed that in a domestic system concerned with the separation of powers, social and economic policy decisions on the equitable distribution of public resources are ordinarily recognized by the courts to be matters for the judgment of the elected representatives of the people.80 Conversely, in Anderson the power of the Home Secretary to determine the tariff terms to be served by defendants convicted of murder and sentenced to life was seen by the House of Lords, following the rulings of the European Court of Human Rights, as impinging on the fundamental principle of separation of powers and thus as incompatible with Article 6 (right to a fair trial) of the Convention.81
Perhaps even more importantly, the Human Rights Act and the Convention have induced the government and the legislature to strengthen the institutional safeguards of the independence of the judiciary. The Constitutional Reform Act 2005 has transferred the function of head of the judiciary from the Lord Chancellor to the Lord Chief Justice as President of the Courts of England and Wales (section 7 of the 2005 Act). He has also been removed as Speaker of the House of Lords which now elects its own Speaker. In addition the Act has established a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget, and created an independent commission for the vetting of candidates for high judicial office (see VI. below). The Lord Chancellor remains the Minister responsible for the Department of Constitutional Affairs which includes the administration of the courts, legal aid, human rights, constitutional reform, and the electoral system. Further reform followed in 2007 when the government decided to create a new Ministry of Justice which combines the responsibilities of the Department of Constitutional Affairs with responsibilities formerly discharged by the Home Office, like the prison service, the Parole Board and criminal justice reform.82
IV. Protection of Fundamental Rights
For a long time the British approach to protection of fundamental rights followed the principles recommended by Dicey (see III. 3 above). The common law which accords everybody a wide measure of individual liberty by the principle that citizens are free to do as they like unless expressly prohibited by law was seen as the most effective protection against arbitrary interference with personal or political freedom. Under this principle the people already enjoy basic freedoms like the freedom of religion, the freedom of expression or the freedom of trade and may be restrained from exercising these freedoms only on the basis of clear common law or statutory rules allowing for such restrictions.83 This traditional approach to protection of fundamental liberties is illustrated by a number of classical court decisions like the much celebrated Entick v Carrington in which the court denied that the state authorities had any general powers to infringe individual liberties in the interests of the State except those specifically assigned to them by the common law or statute.84 However, since the 1960s there was a growing recognition that the British concept of liberty is open to criticism on the ground that the unlimited freedom of some may easily lead to the infringement of the liberty of others. In particular the unfettered exercise of the freedom of contract may give rise to grossly unfair and discriminatory practices by those in a powerful economic and political position. For this reason the legislature enacted the Sex Discrimination Act 1975 and the Race Relations Act 1976 in order to eliminate the worst forms of discriminatory behavior in public and economic life. However, this was a far cry from the establishment of comprehensive code of fundamental rights on the model of foreign constitutions or international human rights treaties.
2. Incorporation of the European Convention on Human Rights
This situation finally changed with the incorporation of the fundamental rights and liberties guaranteed by the European Convention on Human Rights into British domestic law by virtue of the Human Rights Act 1998. Although Britain had been the first country to ratify the European Convention in 1951 and had allowed individuals the right of individual petition to the Convention organs in case of an alleged violation of their Convention rights in 1966, it remained reluctant to create the necessary statutory framework for the enforcement of Convention rights in British courts. The courts could only rely on the Convention to construe ambiguous legislation or to resolve any uncertainties in the common law but could not use the Convention rights directly as standards against which to measure the lawfulness of the conduct of public officials interfering with individual liberty. Britain’s poor record before the Court of Human Rights in Strasbourg seemed to expose the weakness of the traditional approach to fundamental rights protection; at the same time countries in the common law tradition like Canada, New Zealand and South Africa were introducing constitutional and legislative reforms for the better protection of human rights. Against this background the opposition Labour Party finally embraced the cause of incorporation to enable British citizens to enforce their Conventions rights in UK courts and swiftly introduced legislation to this effect after its return to power in the 1997 elections. The Human Rights Act (HRA) was passed by Parliament in 1998 and entered into force in England and Wales on October 2, 2000, in Scotland (due to the devolution arrangements) already two years earlier.
a) Scope of the Human Rights Act 1998
The Conventions rights which are incorporated into British domestic law by virtue of the Human Rights Act 1998 are defined in section 1(1) of the Act. They include Articles 2 to 14 of the Convention—i.e. the right to life, freedom from torture, inhuman and degrading treatment, slavery and forced labor, the right to liberty, the right to a fair trial, the prohibition of punishment without law, the right to privacy, freedom of religion, expression and association, the right to marry, the prohibition of discrimination—Articles 1 to 3 of the First Protocol—i.e. the right to property, education and free elections—and Articles 1 and 2 of the Sixth Protocol (prohibition of the death penalty in times of peace). These are to be read with Articles 16 and 17 of the Convention which permit the imposition of restrictions on the political activities of aliens and prohibit the use of Convention rights for activities aimed at the destruction of those very rights. The Act does not incorporate Articles 1 and 13. The government considered to have met the obligation in Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms set out in the Convention by the enactment of the Human Rights Act, although the territorial scope of the HRA defined by the term “jurisdiction” in Article 1 has subsequently given rise to important litigation before British courts with regard to measures taken by British occupation forces in Iraq in the aftermath of the 2003 invasion.85 Similarly the government claimed that the right to an effective remedy for the violation of Convention rights guaranteed by Article 13 of the Convention did not need to be incorporated into national law since this requirement was satisfied by the remedies provided for in section 8 of the HRA.
Section 6 defines the personal scope of the Human Rights Act by establishing a general duty for all public authorities to exercise their functions in accordance with the Convention rights. Any action or conduct by such authorities which is incompatible with a Convention right is considered to be unlawful. Section 6(2) defines “public authority” as meaning any court and tribunal and any person certain of whose functions are functions of a public nature, with the exception of either House of Parliament. Government departments, local authorities, the police and the armed forces undoubtedly belong to the public authorities within the meaning of section 6, but also those private persons or companies who are called hybrid” or “functional” public authorities because they carry out certain governmental functions like the running of prisons.86 By contrast, the Convention rights are not directly binding on private parties in their relations with other private parties; they produce in other words no direct horizontal effect. However, since the courts and tribunals are public authorities and act as such also in those cases in which they adjudicate disputes between private parties they are barred from taking action, like granting or refusing an injunction, which would violate the Convention rights of the applicant or the defendant. In this way the HRA is relevant not only for the interpretation of legislation, but also for the application of the common law and for the adjudication of private litigation by the parties.87
On the other hand, only an actual or a potential victim of an unlawful act may bring proceedings in respect of the unlawful conduct or may rely on Convention rights as a defense in legal proceedings (section 7). By restricting—in accordance with Article 34 of the European Convention—the right to submit applications to the victims or potential victims, the Act effectively bars public interest groups and others who may claim to have standing under the more generous criteria applied by British courts in judicial review proceedings88 from bringing claims that public authorities are violating Convention rights.89
b) Main duties under the Human Rights Act
If it finds a public authority to have acted unlawfully within the meaning of section 6, the court or tribunal may grant such relief or remedy, or make such order within its powers as it considers just and appropriate (section 8). The Human Rights Act thus does not create any new remedies but allows the remedies already recognized in the domestic legal system to be used for the purpose of sanctioning violations of Convention rights. This means that damages for breach of Convention rights are available only in a civil court which otherwise has the power to award damages; in assessing the damages, the court must take into account all the circumstances of the case, including the jurisprudence of the Strasbourg Court as to what constitutes a “just satisfaction” for the violation of Convention rights.90
Concerns that the Human Rights Act may be used to establish new causes in litigation between private parties gave rise to the inclusion of special provisions relating to freedom of expression and freedom of religion. The concerns of the newspaper industry that the generous protection granted by the Strasbourg Court to privacy rights91 may have a negative impact on press freedom in the UK are reflected in section 12(2), (3) which tries to restrict the power of the courts to grant interim relief against the press: such relief shall not be granted without the respondent having been notified and unless the court is satisfied that the application to restrain publication is likely to succeed at the full trial. In addition, section 12(4) provides that in proceedings relating to the “publication of journalistic, literary or artistic material” the court must have particular regard to the freedom of expression and “any relevant privacy code”, thus suggesting an important role for the Codes of Practice established by the self-regulatory bodies of the British Press in the judicial determination of the question whether privacy rights have indeed been violated. Similarly, section 13 seeks to provide special protection for religious bodies against the interpretation of Convention rights which might undermine their established doctrines and practices.92
The key obligation of the courts (and all other public authorities as defined by section 6) is defined by section 3 of the Human Rights Act: they must read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights, “so far as it is possible to do so”. This new rule of construction has been interpreted by the courts in a very broad manner, empowering them to give the legislation a construction which is consistent with the Convention not only in cases where the legislation is ambiguous but also where this implies the departure from the clearly expressed meaning of a statute.93 How this can be reconciled with the equally recognized maxim that section 3 shall not be used to amend rather than construe legislation94 is not easy to determine. Where it is not possible to construe legislation in a manner which is consistent with Convention rights, the courts have the power to strike down the relevant provisions only in the case of secondary legislation. By contrast, if the provision is contained in a statute, or if the parent Act prevents the removal of the incompatibility in the secondary legislation, the High Court and the superiour courts, after giving the Crown the opportunity to take part in the proceedings, may make a declaration of incompatibility (section 4). This declaration leaves the continued operation and validity of the provision unaffected. It is for the government and Parliament to decide whether to amend the legislation or not, although the refusal to do so will increase the likelihood of the Strasbourg Court finding Britain in breach of its obligations under the Convention. Section 10 empowers the government to make by order, i.e. by way of delegated legislation, such amendments to the primary legislation as it deems necessary to remove the incompatibility if it thinks that there are “compelling reasons” to do so. The purpose of this procedure is to enable incompatibility with a Convention right to be removed from the statute book more swiftly than would be possible if an amending Act of Parliament were needed.
c) Impact of the European Convention on fundamental rights protection in British domestic law
Section 2 of the HRA requires courts and tribunals “to take into account” judgments, decisions, declarations or advisory opinions of the European Court of Human Rights when they determine a question which has arisen in connection with a Convention right. They must also take into account the decisions and opinions of the (now defunct) European Commission on Human Rights and the decisions of the Committee of Ministers. The British Courts, especially the superior courts, have taken this obligation seriously. In particular, the courts have embraced the concepts of proportionality and necessity developed by the European Court of Human Rights for the purpose of determining the lawfulness of measures interfering with the exercise of Convention rights. These concepts provide greater scope for the protection of individual rights than the conventional Wednesbury test applied by the British courts in the judicial review of administrative action, which is limited to illegality, impropriety and procedural irregularity (see below VI. 4.). This was expressly acknowledged by Lord Steyn in the Daly case, stating that the criteria of necessity and proportionality as developed by the Strasbourg Court were “more precise and more sophisticated” than the traditional (British) grounds of review and that under the proportionality approach “the intensity of review is somewhat greater”.95
But the scrupulous observance of the Strasbourg jurisprudence has also been the object of criticism especially in those cases where the case law of the Strasbourg court itself is not very clear. For example, in the case of an asylum seeker who claimed that the effect of deportation would be to shorten her life dramatically since she had AIDS and would lack access to life-prolonging drugs in her home country, the House of Lords, despite acknowledging that the Strasbourg jurisprudence lacked its usual clarity, stuck to a close textual analysis of the Court’s case law and dismissed the applicants claim of a breach of Article 3 of the Convention as unfounded.96
V. Institutions of Central Government
1. The Crown
a) Legal status of the Crown
In some countries, the “State” is a separate legal entity with powers and duties peculiar to itself. This is not so in Britain. The idea that the “State” can be personified as a being in itself has gained little acceptance in the UK. The notion of state is of legal significance in international law where it means an independent country. In British domestic law, however, the term “State” is not widely used. Where it is, especially in statutory provisions, it does not refer to a well-defined, generally accepted legal concept. Rather its meaning depends on the particular context.
The Crown is the nearest British equivalent to a concept of state or government. Historically, the Crown is the monarch. Ministers, civil servants and members of the armed forces are servants of the Crown. The monarchy has many functions. In particular the Queen is part of Parliament, Head of State of several Commonwealth countries, head of the church, head of the judiciary, head of the executive and head of the Commonwealth. She has also special ceremonial and symbolic functions as Head of State of the United Kingdom.
Until recently the usual approach to explaining the idea of the Crown was to treat the Queen as a “corporation sole”.97 A corporation sole is an office which is regarded as a person separate from the individual who holds the office at any given time. This notion separates the Crown in its official capacity from the Queen personally. However, the concept sits awkwardly with modern conventions which require most Crown functions to be discharged by ministers and civil servants. For some authors, the Crown is therefore simply synonymous with the central government.98 This view has been sometimes been echoed by the courts. In Town Investment Ltds. the House of Lords held that the Crown meant the ministers and their departments. These were not merely servants of the Crown but were the Crown itself. Lord Simon explained that the expression “the Crown” symbolizes the powers of government which were formerly wielded by the wearer of the Crown. Historically the Crown has evolved by the hiving off of departments of state from the Royal Household and the creation of ministers to exercise the royal power. The legal concept which seemed in Lord Simon’s view to explain best the contemporary situation is to consider the Crown as corporation aggregate, similar to a company, headed by the Queen.99
One result of the constitutional settlement of 1688 was that Parliament can lay down by statute the rules governing who the monarch shall be. The Act of Settlement of 1700 provides that the Crown is to be held by the direct descendants of Princess Sophia, the grand-daughter of the deposed James II. The succession has been altered only once, when Edward VIII abdicated in 1936. Edward VIII and his descendants were excluded from the line of succession by His Majesty’s Declaration of Abdication Act 1936. The Succession to the Crown Act 2013 replaced male-preference primogeniture with absolute primogeniture, irrespective of gender, for those born in the line of succession after 28 October 2011, and ended the disqualification of a person who marries a Roman Catholic from the line of succession.
When the monarch dies, the successor immediately and automatically becomes monarch. A special “Accession Council” composed mainly of members of the House of Lords proclaim this. The proclamation is later confirmed by the Privy Council. The coronation ceremony has no legal significance, except in as much the monarch promises to maintain the Churches of England and Scotland, to join in communion with the former and to perform his or her royal duties. If the monarch is a minor, ill, or absent abroad, the royal functions are exercised by a Regent or Councillors of State under the Regency Acts 1937-53. In such cases, certain bills cannot be assented to, most notably a bill for altering the succession to the Throne.
The Crown has special privileges in litigation. In former times, no legal action would lie against the Crown at common law in respect of its property rights and contracts, or in respect of injuries (torts) caused by the Crown: The King can do no wrong. Nor was the Crown bound by Acts of Parliament. This obvious gap in the Rule of Law was avoided by the Crown’s practice of voluntarily submitting to the jurisdiction of the courts. In the case of actions involving property and contract this was through a special procedure called the “petition of right”. In the case of a tort, the individual Crown servant who committed the tort would be made liable, and where it was not clear who the responsible servant was, the Crown would name a defendant. In either case the Crown would pay the damages.
These somewhat makeshift arrangements were displaced by the Crown Proceedings Act 1947. The Act was intended to make the Crown liable as if it were a private person for breaches of contract, for the wrongs of its servants, for injuries caused by defective Crown property etc. Section 1 of the Act permits actions for breach of contract against the Crown. Section 2 permits actions in tort but only where a private person would be liable in the same circumstances. However, the Act leaves the Crown with several special privileges:
– No court order can be enforced against the Crown so that the plaintiff’s right to damages depends upon the Crown voluntarily paying up. Similarly no injunction lies against the Crown or its servants.
– In action for breach of contract the Crown can plead “executive necessity”. This means that it can refuse to comply with a contract where it has an overriding power to take some action in the public interest.
– In the case of actions in tort, the Crown is not liable for the acts of its “officers” unless the individual officer was appointed directly or indirectly by the Crown and wholly paid from central government funds; the Crown is not in any circumstances liable for wrongs committed by “judicial officers”, that is judges or members of tribunals; the officer himself also enjoys considerable immunity.
– The Crown is not bound by any Act of Parliament unless it expressly or by necessary implication binds the Crown. Necessary implication is a strict notion. It is not sufficient to show that exempting the Crown is unlikely to cause unfairness or inconvenience. It has to be shown that the statute would be unworkable unless the Crown were liable. This rule leaves unaffected, however, the liability of the Crown at common law.
– Finally, the monarch cannot be prosecuted or sued in her personal capacity.
b) Functions of the Crown
As has already been discussed (see III. 2. above), the powers of the monarchy have been greatly reduced since 1688. In former times all powers of government (at least in constitutional theory) belonged to the Crown. A number of the powers of government still technically are Crown powers in that in law it is the Crown, not a minister, that acts. These powers are known collectively as prerogative. Most of these powers are nowadays exercised by ministers. They include such powers as the power to declare war and peace, to make treaties and to conduct foreign relations, to command the armed forces, as well as the prerogative of mercy. One of the few Crown powers that remain important and in which the Crown acts without complying with the advice of ministers is that of the appointment of Prime Minister. There is no legal rule as to whom the Crown shall appoint to lead a government. In practice the Crown appoints as Prime Minister the leader of the political party which has the majority in the House of Commons, that leader having himself been elected by the Members of Parliament and his political party. If no party has an overall majority, the choice of the Crown whom to appoint is of political importance. In other cases where in former times the monarch may have enjoyed a certain discretion, when a Prime Minister died in office or decided to retire, the decision has effectively been taken out of the hands of the monarch by the establishment of a formal selection process of the successor by the political parties.
Apart from these personal powers, the competences of the monarch are largely of a symbolical nature, comparable to those enjoyed by Heads of State in most West European countries:
– The monarch appears as symbol of the nation participating for this purpose in public ceremonies and events.
– The monarch can advise, encourage and warn the government. The monarch, supported by her Private Secretary who acts as a link between the monarchy, the government and foreign governments, has access to all government documents and regularly meets the Prime Minister. The monarch is entitled to express views in private to the government but there is no convention as to the weight to be given to them.
– The monarch has to perform certain formal acts. In all cases she must accept the advice of ministers. These include assent to statutes (today this function is usually performed on the Queen’s behalf by a Commission), the consent to orders in council, the appointment of ministers, ambassadors, peers, bishops, judges etc., the making of royal proclamations, for example dissolving and summoning Parliament or declaring a state of emergency, the ratifying of solemn treaties. In all these functions, the monarch enjoys no real political power; this is vested in the government. The Crown has therefore been called as early as in the second half of the 19th century the “dignified part” of the British Constitution, in contrast to its “living parts”, namely Parliament and government.100
c) The Privy Council
The Privy Council is composed of all Cabinet ministers, other important politicians, senior judges and various other dignitaries. It is the descendent of the medieval ‘inner council’ of trusted advisors to the King. It has over 400 members who are entitled to be called ‘The Right Honourable’. The Privy Council meets wherever the Queen is residing at the time. In practice only three or four members attend and its proceedings are largely informal.
However, committees of the Privy Council have important functions. Among other things, committees of the Council, or consisting of Privy Councillors, have been used to consider special problems appropriate for investigation by an eminent non-partisan body, for instance the use of questionable interrogation techniques of security forces in Northern Ireland, or the recruitment of mercenaries to fight abroad, or the lessons of the Falkland conflict of 1982.
The most important committee is the Judicial Committee of the Privy Council which functions as final court of appeal for those Commonwealth countries which have chosen to retain its services (Antigua and Barbuda, The Bahamas, Cook Islands and Niue, Dominica, Grenada, Jamaica, Kiribati, Mauritius, St. Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, Tuvalu), for UK Overseas Territories (including Gibraltar) and the Crown Dependencies of Jersey, Guernsey, and the Isle of Man. In addition, the Devolution Acts for Scotland, Wales and Northern Ireland (see VII. below) conferred jurisdiction on the Judicial Committee to determine disputes relating to the scope of the devolved powers of the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly, the so-called “devolution issues”. This latter function, however, was transferred to the newly created Supreme Court by the Constitutional Reform Act 2005 (see VI. below).
d) The Crown and the British Commonwealth
The Commonwealth is a loose association of independent states linked by historical ties with the UK and through the UK with each other. All were once British dependencies, and became independent at different times and under different conditions. Australia, New Zealand and Canada (formerly known as dominions) originally retained a theoretical tie with Britain because under section 4 of the Statute of Westminster Parliament could still legislate for these countries at their request and with their consent but this ability has since been removed.101 Other Commonwealth countries were given an independent constitution by an Act of the UK Parliament, but in some cases (e.g. Kenya) later rejected this in favour of an entirely “home grown” constitution.
The Queen is Head of State of many Commonwealth countries (e.g. Canada, Australia, New Zealand), but in that capacity she is entirely separate from the British Government. The Queen is represented in these countries by a Governor-General. The powers of the Governor-General depend entirely on the constitution of the country in question.
Other Commonwealth countries (e.g. India and Kenya) are republics with an elected Head of State. All recognize the Queen as “head of the Commonwealth” but this involves no legal powers.
Relationships between the Commonwealth states depend upon agreements, conventions, shared values, and culture. Most Commonwealth states retain some British governmental institutions and their laws are influenced by English law. To be admitted to full membership a State must be independent, recognize the Queen as head of the Commonwealth and accept certain basic values, for example racial equality. Meetings of the Commonwealth countries are held periodically so that the Commonwealth could be regarded as a forum for political discussion. The UK’s close connection with other European states through the mechanisms of the EU has reduced her importance as part of the Commonwealth which is no longer bound together by strong economic ties. Until 1968 Commonwealth citizens were favorably treated under British immigration law. Since then a succession of statutes has reduced the rights of Commonwealth citizens to the point where Commonwealth citizens as such are broadly in the same position as other foreigners, and considerably worse off than EU nationals.
2. The Prime Minister
The office of Prime Minister is almost entirely governed by convention. The Prime Minister is mentioned only occasionally in legislation and then mostly in connection with matters such as salaries and pensions. The precise scope of powers conferred by conventions upon a modern Prime Minister is a matter of controversy among political scientists. From a legal perspective, however, it has to be recognized that except for intervention by the monarch and the remote possibility of rejection by the House of Commons there is no formal machinery to curb the power of a Prime Minister at the head of a majority government between elections. Everything therefore depends on the political balance between the particular holder of office, the Cabinet and party solidarity.
The powers of the Prime Minister have evolved gradually since the middle of the 18th century corresponding with the decline in the powers of the monarch. The function of the Prime Minister was originally that of a Cabinet chairman who acted as a deputy for the monarch and intermediary between the monarch and the government (primus inter pares). The office in the modern sense of policy-making leader is usually dated from the alternating premierships of Disraeli and Gladstone in the second half of the 19th century during a period which saw major parliamentary reforms and a move toward a party-dominated form of democracy.
The Prime Minister is appointed by the Queen who today has no discretion in the matter but is by convention bound to appoint the person who can command a majority in the Commons. There is no need for a newly appointed Prime Minister to be confirmed by a formal vote in the Commons. The Prime Minister also holds the office of First Lord of the Treasury (No. 10 Downing Street is the First Lord’s official residence) and in recent years that of minister of the Civil Service. However, it is another senior member of the Cabinet, the Chancellor of the Exchequer, who is effectively in charge of the Treasury. In unusual circumstances, the Prime Minister may take another portfolio as well. For example, Churchill was also Minister of Defence throughout his war premiership.
The most important conventions which secure the dominant role of the Prime Minister in the government are the following:
– The Prime Minister must be a member of and enjoy the support of the House of Commons. This was originally designed to limit the powers of government, but modern party discipline and the domination of the House of Commons by career politicians means that, given a majority of seats, the support of the Commons is usually automatic.
– The Prime Minister appoints and dismisses all government ministers. She or he has also powers of appointment in relation to senior judges and other important officials. As First Lord of the Treasury and Minister for the Civil Service the holder of the office of Prime Minister can make or influence senior appointments within the Civil Service. The Prime Minister also determines the status and hierarchical rank of other ministers.
– The Prime Minister controls the Cabinet agenda, formulates its decisions and allocates Cabinet business. He may entrust certain matters to smaller working groups of ministers or civil servants and in this way bypass Cabinet discussions which is then reduced to the role of a “rubber stamp”.
– The Cabinet is assisted by a secretariat in its functions. The Cabinet Secretary, a permanent official, is also head of the home Civil Service and reports directly to the Prime Minister. This gives the Prime Minister unique access to the government machine since the Cabinet Office co-ordinates the work of all government and is responsible for the training and deployment of the Civil Service.
– The Prime Minister may advise the Queen to dissolve Parliament without consultation with the Cabinet. Thus the Prime Minister can choose the date of a general election, holding his or her colleagues’ careers to ransom.
– The Prime Minister is head of the internal security services.
– The Prime Minister is the channel of communication between Queen and government.
– The Prime Minister is the main spokesman for the nation and as such has unique access to the media. The Prime Minister’s press office holds a key position.
The limits on the power of a Prime Minister are essentially of a political nature. It may be politically risky for a Prime Minister to dismiss ministers who enjoy political support in their own right. Equally, a Prime Minister’s freedom to appoint ministers may be restricted by party political considerations (the need to reconcile the different wings of his party). There are similar risks in overruling or bypassing a Cabinet discussion or in calling early elections (while the power to trigger early elections is now formally vested in the House of Commons under the Fixed-terms Parliament Act 2011, the Prime Minister retains a crucial role in taking the initiative for anticipated elections, as the botched dissolution of May 2017 has shown). An unpopular leader may be deposed as party leader and simultaneously lose the support of the Commons. Moreover, the Prime Minister does not have the support of a departmental staff of his own (apart from a small Private Office). However, he or she may have a staff of independent policy advisors brought in from outside the regular Civil Service.
3. The Cabinet
Like the Prime Minister, the Cabinet is the creature of convention. In theory the Cabinet is the policy-making body which is collectively responsible to Parliament and co-ordinates the work of government departments. The Cabinet originated in the 17th century as a group of Privy Councillors called together to give confidential advice to the monarch. The term ‘Cabinet’ referred to the King’s anteroom in which this group gathered. Eighteenth century Cabinets served the dual purpose of ensuring that the monarch could command the support of the Commons and that the Crown was ultimately responsible to the public at large, i.e. those classes of the population which were represented in Parliament. At the same time collective responsibility developed to present the monarch with a united front. Originally all Cabinet members did not necessarily belong to the same party. However the 19th century reforms in the electoral system which gradually broadened the franchise by extending voting rights to working class people strengthened party discipline and the principle that a government must have the support of the Commons.
Ministers are formally appointed and dismissed by the Queen, but she is bound to follow the advice given by the Prime Minister in any individual case. A majority of Cabinet members should be members of the House of Commons, the rest usually being members of the House of Lords. Cabinets usually comprise between 20 and 30 ministers, including the heads of the main government departments and certain other senior office holders. Other ministers and civil servants often attend Cabinet meetings for particular purposes.
Cabinet business is frequently delegated to committees and sub-committees or even to informal groups or ministers. This is an important method by which the Prime Minister can control the decision-making process. At the same time the use of committees and generous delegation seems to be an inevitable consequence of the size and complexity of modern government. There are two kinds of formal Cabinet committees: (a) ad hoc committees set up on a temporary basis to deal with specific problems and (b) permanent committees which help to coordinate policy issues straddling different departments (e.g. overseas policy or economic strategy). The Prime Minister allocates the membership of committees and chairs the more important ones.
There are about 100 ministers appointed and dismissed on the advice of the Prime Minister from members of the House of Commons and the House of Lords. Ministers are not all of the same rank. They fall into different categories:
– Cabinet ministers are the most important category of ministers. Most Cabinet ministers head the largest and most important departments but some offices are traditionally without departments and can be assigned to special or coordinating work by the Prime Minister, e.g. the Lord President of the Privy Council. The Leader of the House of Commons is also a member of the Cabinet and is responsible for managing government business in the House. Government whips control party discipline. The Chief whip is not a Cabinet member but attends Cabinet meetings. The largest government departments are headed by Secretaries of State.
– The Ministers of State are second in command within government departments and are usually allocated particular areas of responsibility. Also in this category are the law officers of the Crown (the Attorney General and the Solicitor General).
– Parliamentary Under-Secretaries of State who assist departmental heads with political and administrative work in cases where the head of department is a Secretary of State.
– Parliamentary Secretaries who do the same thing in departments not headed by a Secretary of State.
– Parliamentary Private Secretaries are members of Parliament who act as unpaid assistants to individual ministers.
The most important government departments are the Treasury, the Home Office and the Foreign Office. The Treasury is an overlord and coordinating department in the sense that it is responsible for the economy as a whole; it finances the other departments and is also responsible for most Civil Service matters. By convention all other department must seek Treasury approval for their spending plans with the Cabinet acting as a court of appeal.
The Home Office and the Foreign Office are 19th century creations. The Home Office exercises a mix of responsibilities and is essentially a receptacle for domestic matters not allocated elsewhere. Its responsibilities include law and order, immigration, passports, police, counter-terrorism and drugs policy, and crime victims.
The powers of the Lord Chancellor, on the other hand, have been curtailed by recent reforms. Until 2005 the Lord Chancellor was a politically appointed member of the Cabinet who served at the same time as the Speaker of the House of Lords and the head of the judiciary. As a senior judge, the Lord Chancellor was also entitled to participate in judicial proceedings, although by convention he would not exercise this right in disputes involving the Government or of an overtly political nature. The Constitutional Reform Act 2005 retained the office of Lord Chancellor in name but removed his judicial functions and his role as Speaker of the House of Lords. The Lord Chancellor’s Department ceased to exist and was replaced by the Department of Constitutional Affairs under the control of the Secretary of State. That department has itself been replaced in 2007 by the new Ministry of Justice headed by the Secretary of State for Justice and Lord Chancellor which has taken over the responsibilities of the Constitutional Affairs Department as well as the criminal justice functions previously exercised by the Home Office.102
The Cabinet operates under the doctrine of ministerial responsibility which was developed during the 18th and 19th centuries in close connection with the rise of the House of Commons and the decline in the power of the Crown. Nowadays, ministerial responsibility operates to strengthen the power of the Prime Minister and to reduce the House of Commons to the position of a “rubber stamp” of his political agenda. The main reasons for this reversal lie in the party system and in the complexity of modern government.
The doctrine has two aspects, collective responsibility and individual responsibility. These two principles are conventions and not law. They are difficult to pin down and liable to reinterpretation as social practice changes.
Collective responsibility means that all ministers must loyally support government decisions whether or not they personally participated in them. A minister is not entitled to disclose any disagreement he may have with his colleagues unless he or she resigns. Collective responsibility can be dispensed with by the Prime Minister over a particular issue (e.g. membership of the EC in 1975). Modern ideas of party solidarity make collective responsibility virtually meaningless as a method of control over governments, but very important as a method of asserting prime ministerial power and ensuring secrecy within the government. A parliamentary vote of confidence is the only method by which Parliament can enforce collective responsibility, but governments have rarely been defeated in this way in modern times. The last government to have lost a vote of confidence in the Commons and resigned was the Labour Government of James Callaghan in 1979.
Individual responsibility has three related aspects. Firstly, ministers are accountable for all official acts carried out in their departments whether or not they are actually involved. Secondly, civil servants must be anonymous, absolutely loyal to their ministers and politically neutral. Under the traditional doctrine there is no direct link between civil servants and Parliament. Government information is confidential and ministers shield civil servants from Parliament, thereby helping to ensure the political neutrality of civil servants. Conversely officials obey ministers, thus emphasizing the minister’s own accountability to Parliament. Finally, ministers are accountable to Parliament in that they must answer questions put to them in accordance with the rules of the House. They must give the House a full and frank explanation of policy and decisions. It is sometimes said that a minister must resign whether or not he is personally to blame if serious fault is attributed to his department. Modern practice does not support this and ministers have usually resigned only where they have been found personally responsible. Much depends on the seriousness of the matter, its political significance and the political strength of the minister in question.
Not all government activities are subject to ministerial responsibility to Parliament. In particular, ministers can refuse to answer questions on grounds of national security, foreign relations or other aspects of the public interest. The Prime Minister’s power to advise a dissolution of Parliament is also outside Parliamentary scrutiny as are other powers involving the monarch personally.
a) Bicameral structure of Parliament
The British Parliament consists of two chambers, the popularly elected House of Commons and the appointed House of Lords. In earlier times the House of Lords was the more important body. The Lords were originally the great landowners of the realm created as such by the monarch and transmitting to their descendants their property and the titles and power that went with it. The House of Lords was the King’s Great Council of advisors summoned and dismissed by the King (there was also an “inner council” of close advisors which later developed into the Privy Council, see 1. c) above). The origins of the Commons, on the other hand, lay in the occasional practice of the King to summon representatives from the shires and boroughs to assist in settling appeals from local courts and later to provide him with information. Parliament in the beginning thus had the character of a judicial body, not of a political body. It was practice to summon Parliament to obtain an authoritative opinion as to the existing laws and customs of the realm. Only since the fifteenth century did Parliament actually make new law. Technically it retained the position of a court of law of equal status to the High Court (therefore the traditional reference to the High Court of Parliament) for much longer. The Appellate Committee of the House of Lords has continued to serve as the highest court of appeal from the ordinary courts. It was only with the Constitutional Reform Act 2005 that that these functions have been transferred to a new Supreme Court which will be located outside Parliament (see VI. below).
The House of Lords retained considerable powers after the constitutional settlement of 1688 although the Convention Parliament which handed the Crown to William of Orange had been dominated by Commoners. It remained an essential part of the law-making process and could veto all legislation. With the rise of democracy in the 19th century, however, and the electoral reforms which came with it, the balance of power started to shift decisively in favor of the House of Commons. Until then, the right to vote for the Commons and the right to sit in the Commons had belonged only to a limited class of property owners. This was gradually changed, the last fundamental electoral reform in 1928 introducing the universal franchise for women. By the end of the nineteenth century the convention was emerging that the Prime Minister and the majority of the ministers should be members of the Commons. Throughout the nineteenth century there was an uneasy stalemate between the Lords and the Commons. The Lords claimed the right to veto legislation but not to amend financial measures since by convention money could be supplied only by the Commons. Matters came to a head in the early years of the 20th century when the Liberal government introduced a programme of social reform that laid the foundations for the modern welfare state. The Lords opposed much of this and the uncertain conventions governing the relationship between the Commons and the House of Lords became crucially important. Furthermore it was unclear whether the King could refuse the advice of the Prime Minister to appoint sufficient peers to secure a majority in the House of Lords.
In 1909 the House of Lords rejected the Liberal Government’s Finance Bill in breach of convention. In response the House of Commons passed a resolution that there had been a breach of the Constitution and an usurpation of the rights of the Commons, and called for the power of the House of Lords to be curbed. King Edward VII was called upon to create sufficient new peerages to allow the passage of the Finance Bill in the Upper House but refused to do so until the budget had been approved by the electorate in anticipated general elections. After the Liberal Government had been reelected triumphantly it forced the enactment of the Parliament Act 1911 by threatening to create more peerages to ensure the safe passage of the Bill. The Parliament Act placed the relationship between the Lords and the Commons on a statutory footing. The House of Lords was deprived of its power to veto legislation and the Commons could override any amendments suggested by the Lords. In the future the House of Lords could only delay the enactment of legislation for the period specified in the Act. The Parliament Act of 1949 reduced the delaying period further. Since then the ascendancy of the House of Commons over the Lords has never been questioned again, although, most recently, questions have resurfaced as to the precise limits of that ascendancy (see c) below).
b) House of Commons
The House of Commons at present has 646 members who are elected under the first-past-the-post system in single-member constituencies for five years (which may however be shortened if the House of Commons passes a motion for early elections with a two-thirds majority or withdraws its confidence from the government). The two main parties, the Labour Party and the Conservative Party, have alternated in power since the 1920s, the only exceptions being the Conservative-Labour coalition governments during World War II and, more recently, the coalition of Tories and Liberal Democrats from 2010 to 2015. Smaller parties like the Liberal Democratic Party, the Greens, the United Kingdom Independence Party (UKIP), as well as regional parties from Scotland, Wales and Northern Ireland are also frequently represented in Parliament.103
The House of Commons exercises the following main functions:
– The Commons chooses the government indirectly by virtue of the constitutional convention (see II. 2.) that the person who commands a majority of the Commons is entitled to form a government. Normally that is the leader of one of the two big parties who has been elected to that position under the party rules for the leadership contest, i.e. by vote of the parliamentary party, of a party conference, a constituency vote, or a mixture of all of these). By contrast, the Commons has no veto over individual appointments nor can it dismiss individual ministers: this power is reserved to the Prime Minister who exercises it through more or less frequent “Cabinet reshuffles” during the parliamentary term.
– The Commons sustain the government by supplying it with funds and authorizing taxation. In particular they vote the annual budget, although the complexity of the modern financial and taxation system means that the parliamentary approval is a mere formality while the real decisions on fiscal and spending policy are taken by the government, i.e. the Chancellor of the Exchequer, the Treasury, and the Prime Minister.
– The House of Commons exercises the legislative power. While formally the supreme lawmaker is the “Queen in Parliament”, it is the House of Commons which has the final word on almost any legislative matter since the House of Lords has only the power to delay legislation to which it is opposed and the Queen is by convention bound to give her assent to any Bill which has been duly passed by Parliament.
– The House of Commons supervises the government. Ministers must appear in Parliament to participate in debates, answer questions and appear before committees. The House of Commons can require a government to resign by a vote of no confidence.
– The House of Commons can redress grievances raised by individual MPs on behalf of their constituents although this is today usually done by way of correspondence between the MP and the competent minister. It also serves as a forum for the discussion of matters of public concern.
The House of Commons regulates its internal procedures by way of Standing Orders. The House as a whole and its individual members enjoy a number of privileges which ensure that they retain control over their own affairs and are protected against disruptions and disturbances both from outsiders and from within its ranks. Parliamentary privilege was originally designed to protect the right of the King to the services of his advisers. Later, it was increasingly used to protect the fledgling Parliament from the power of the Crown. Interference of the Crown with parliamentary business played a central role in the 17th century power struggle between Parliament and the King, one of the main results was the reassertion of the ‘ancient and undoubted privileges’ of the House of Commons against the Crown. The House of Lords also has its privileges but lacks the power to punish offenders for their violation. Parliamentary privileges form part of the “law and custom” of Parliament and are embodied in the rules of the Houses of Parliament.
The most important privileges concern the collective privilege of each House to control its own composition and procedure and the freedom of speech in parliamentary debate. Although the qualifications for being a Member of Parliament are fixed by the general law, each House has the exclusive right to decide who shall actually sit, to regulate all matters within the House, and to expel members. In practice, the parliamentary chambers will obey the general law, and subject to good behaviour will accept all those qualified to sit, that is, Peers in the Lords and election victors in the Commons. Until 1868, Parliament exercised jurisdiction in election disputes. Since then, that power has been transferred to the courts.
The central privilege for MPs is the freedom of speech. An MP must be able to speak and write without fear of interference from outside bodies. The privilege of freedom of speech is statutory. Article 9 of the Bill of Rights states that “The Freedom of Speech or Debates or Proceedings in Parliament ought not to be impeached or questioned in any court of law or place out of Parliament”. It is important to notice that this freedom holds good not only against the Crown but against private individuals as well. A Member speaking in either House is quite outside the law of defamation: he or she may accuse any person of the basest crime and will still be protected from liability, unless actual malice on his/her part is proven.104
However, the question whether a specific conduct of a Member of Parliament constitutes speech within the meaning of Article 9 of the Bill of Rights has repeatedly given rise to doubts which had to be resolved by the Committee of Privileges of the House and, in the final instance, by the full House. In the Duncan Sandy case Mr. Duncan Sandy, a member of the House of Commons, had sent to the Secretary of State for War the draft of a parliamentary question in which he drew attention to a shortage of military equipment. He quoted figures which, in the view of the War Office, could have been obtained only as a result of a breach of the Official Secrets Act 1911. A select committee was established to consider the relevance of the Official Secrets Act to Members acting in their parliamentary capacity. The Committee came to the conclusion that the behavior in question was indeed covered by privilege and observed that:
“the privilege is not confined to words spoken in debate or to spoken words, but extends to all proceedings in Parliament, covering everything said or done by an MP in the exercise of his functions as a member in the Committee of either House, as well as everything said or done in either House in the transaction of parliamentary business”.105
The approach of the House differed in the case of Strauss and the London Electricity Board of 1958 which raised the question whether or not communication in a written form between a MP and a Minister was protected by privilege. Mr Strauss had forwarded a letter from a member of his constituency to the relevant Minister in which criticism was made of the manner in which the London Electricity Board disposed of scrap metal. The Minister passed the letter to the Board for comment, which threatened to sue Mr Strauss for libel. The Committee of Privilege concluded that the letter written was a proceeding in Parliament and that accordingly the board had committed a breach of privilege. By narrow majority, however, the House rejected the findings of the Committee and held that such letters should not be protected by privilege.106 This suggests that a letter of an MP is privileged only if it is to do with a matter currently being debated in the House or an official parliamentary question. Alleged grievances reported by constituents against government departments and associated public bodies, on the other hand, do not seem to be covered by privilege.
As a general rule, the courts are not prepared to intervene in the internal affairs of the House. On the other hand, where parliamentary activity involves the rights of persons outside the House, the courts have claimed the power to intervene at least to the extent of deciding whether the privilege asserted by Parliament exists or not. In Stockdale v. Hansard, a prison inspector made a written report to the Secretary of State alleging that “improper books” were being circulated in Newgate prison. The report was subsequently published by Hansard on order of the House of Commons. Stockdale, the publisher of the “improper” book sued Hansard as publishers of the report which he regarded to be libellous. In defence, Hansard argued that the publication had been by an order of the House of Commons and was accordingly covered by the privilege of the House. The Court of Queen’s Bench ruled that such publication was not covered by privilege, and moreover that the House of Commons could not by a resolution deprive the courts of jurisdiction to protect the rights of individuals. Stockdale was awarded damages.107 But that was not the end of the matter. When the Sheriff of Middlesex levied execution on Hansard’s property to satisfy the award of damages to Stockdale, the House of Commons responded by passing a resolution to commit the Sheriff for breach of privilege and contempt of Parliament. When the Sheriff applied for a writ of habeas corpus to test the legality of his detention, the Sergeant-at-Arms (enforcement officer of Parliament) produced a certificate from the speaker stating simply that the Sheriff was “guilty of a contempt and a breach of the privileges of this House”. The Court refused to control the lawfulness of the Sheriff’s detention, stating that since the Speaker’s warrant did not specify the facts justifying the detention it was not for the court to enquire into Parliament’s business, thus conceding in effect jurisdiction on the matter to the House of Commons and rendering itself powerless to provide a remedy for an individual who found himself incarcerated for trying to enforce a court decision.108
Another problem related to parliamentary privilege concerns the question whether the courts in the adjudication of individual disputes may refer to Hansard reports of the debates in Parliament as an aid to the interpretation of statutes. The orthodox view, which was based (at least partly) on Article 9 of the Bill of Rights had been that courts may not under any circumstances refer to Hansard since this would amount to an enquiry into the proceedings in Parliament. In Pepper v. Hart six of the seven judges hearing the case in the House of Lords opted for a modification of the traditional approach, concluding that there were no constitutional reasons which outweighed the merits of a limited reference to Hansard as an aid to construction. The rule should be relaxed where (1) legislation is ambiguous or obscure, or leads to an absurdity (2) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect and (3) the statements relied upon are clear.109
c) The House of Lords
The House of Lords has about 800 members (2017). Its composition has changed over time. For a long time its membership was limited to hereditary peers, both spiritual and temporal (secular) summoned by the King in order to give advice, decide on appeal cases and, under certain circumstances, to make financial grants to the King. With the suppression of the monasteries in the 16th century the House of Lords became a predominantly secular body. However, this did not mean that the spiritual peers did altogether disappear from the House of Lords. The Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and 21 other diocesan bishops of the Church of England are members of the House of Lords and emphasize the close link which still exists between the Church of England and the State. They vacate their seats in the Lords once they leave their ecclesiastical office.
The first life peerages were created in the 19th century in order to allow people with legal expertise to join the Judicial Committee of the House of Lords, the highest domestic court. Non-judicial life peers were not introduced until 1958 when the Life Peerages Act opened the way for the creation of merit-based peerages in order to let in “the great and the good” from various backgrounds of expertise and experience. Former government ministers and members of Parliament, but also members of the academic and the business community have been awarded such life peerages.110
Until 1999 the membership of the House of Lords had grown to more than 1300 members, making it the largest legislative chamber in the world. The Labour government then introduced the House of Lords Act which reduced this number by half by ejecting 654 of the 746 hereditary peers from the House. The Act provides that no one shall be a member of the House of Lords by virtue of a hereditary peerage. However, in order to prevent the peers from rejecting the Act a compromise was struck which allows 90 hereditary peers elected by the House, together with the Earl Marshall and the Lord Chamberlain (i.e. in total 92 peers) to retain their seats as peers for life.
The government had originally envisaged a comprehensive reform of the Lords of which the abolition of the hereditary peerages was to be only the first stage. However, all attempts to move to the second stage of the reform have failed, due to the underlying disagreements on the future role of a reformed House of Lords and to the low political priority given to the matter by the subsequent Labour governments. A joint committee of the House of Commons and the House of Lords set out seven options ranging from complete election to complete appointment, all of which were rejected by the Commons.111 Pending further reform, the present system remains in place, under which the life peers are appointed by the Crown on the advice of the Prime Minister. The Prime Minister’s conventional power to select life peers is subject to a non-statutory House of Lords appointment commission. Appointed by and reporting to the Prime Minister, the Commission vets all proposals for political appointments on the ground of propriety and also administers a process for non-political appointments. However, it has no decision-making power and merely advises the Prime Minister in the exercise of his appointment powers.112
The main function of the House of Lords is to scrutinize proposed legislation, to provide a forum for public debate, and to act as a constitutional watchdog. The legislative powers of the House of Lords have been greatly curtailed by the Parliament Acts 1911 and 1949. The 1911 Act abolished the right of the House of Lords to reject Money Bills. A Money Bill is a Bill which deals exclusively either with central government taxation or central government borrowing or accounts. The certificate of the Speaker that a Bill is a Money Bill is conclusive for all purposes. The Parliament Act 1911 imposes a one-month time limit during which the Lords may consider such Bills and suggest amendments. If the Bill is not approved without amendment within that period, provided it has been sent to the Lords within one month before the end of the session, it will proceed to receive the Royal Assent without the approval of the Lords. If the Lords propose amendments, these may either be rejected or retained by the Commons. With regard to non-Money Bills the 1911 Act replaced the right of the House of Lords to veto legislation with the power to delay Bills for a two-year period spread over three sessions, a period which was reduced by the Parliament Act 1949 to one year over two sessions.
A number of Bills are not covered by the Parliaments Acts 1911 and 1949, including Private Bills,113 Bills originating in the House of Lords and Bills containing financial measures but not certified as Money Bills.114 The most important among these is a Bill to prolong the life of Parliament. Because of this exemption the House of Lords retains the key constitutional role of preventing a government from overriding elections by prolonging its own life beyond five years.
The validity of the Parliament Act 1949, which was enacted without the House of Lords’ consent under the 1911 Act’s procedure, was challenged in R (Jackson) v Attorney General on the ground that there were implied limits inherent in the 1911 Act which prevented the procedure provided for by this Act from being used for the adoption of legislation which further diminishes the legislative powers of the Lords. While the House of Lords rejected this argument and held that there was nothing in the 1911 Act which prevented its use for the purpose of further reducing the delaying powers of the Lords, it reiterated the limits of the application of the 1911 Act which does not apply to Private Bills, Bills introduced in the House of Lords, and a Bill to prolong the life of Parliament beyond five years. While some judges argued that these limits could not be circumvented by altering the 1911 Act itself since this would subvert the clear intention of the legislation, others took the contrary view that since the 1911 Acts were fully subject to the exercise of parliamentary sovereignty as traditionally conceived (see III. 1. b) above), the courts could not prevent this from happening.115
VI. The Judiciary
1. Structure of the judicial system
The judiciary in the United Kingdom is decentralized in the sense that different court systems operate in England and Wales, Scotland and Northern Ireland. However, the system is integrated at the top, with the Appellate Committee of the House of Lords functioning as final court of appeal not only for the courts of England and Wales, but also for the courts in Northern Ireland and—in civil cases—the courts of Scotland.116 Minor criminal cases in England and Wales are dealt with by the magistrate courts, while civil cases are heard by the county courts. The Crown Court has jurisdiction to hear the more serious criminal cases. The superior courts in England and Wales which have been renamed ‘senior courts’ by the Constitutional Reform Act 2005 form the Supreme Court of Judicature. They include the High Court which deals with major civil cases and the Court of Appeal which in two divisions hears appeals in civil and criminal cases.
The function of the highest appellate court in the United Kingdom is exercised by the Appellate Committee of the House of Lords. The Appellate Committee hears appeals from all the UK jurisdictions except Scottish criminal cases (which are dealt with in last instance by the High Court of Justiciary in Edinburgh). Although its members are made life peers and can sit in Parliament, in practice it is independent of the rest of Parliament. Nevertheless there have been increasing concerns about separation of powers with regard to the dual function of the House of Lords in both the legislative and the judicial fields. While Article 6 of the European Convention on Human Rights which was incorporated into British domestic law by virtue of the Human Rights Act 1998 does not prescribe specific institutional requirements for the courts which are to give effect to the right to a fair trial, it requires that in the particular circumstances the court is not only independent, but also be seen to be independent.117
In order to avoid any confusion with regard to the relationship between the legislative and the judicial role of the House of Lords the government therefore decided to sever the institutional links between the House of Lords and the highest appellate court. The Constitutional Reform Act 2005 creates a new Supreme Court to which the appeal functions of the House of Lords and the jurisdiction of the Privy Council in devolution issues (see below VII) have been transferred. Like the Appellate Committee of the House of Lords the Supreme Court comprises 12 judges appointed by the Queen by letters patent. The judges appointed to the new Supreme Court are no longer members of the House of Lords. The Supreme Court resides in the renovated Middlesex Guildhall on London’s Parliament Square opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury.
The Act also provides for the establishment of an independent Commission which shall select suitable candidates for appointment to high judicial office, including membership of the Supreme Court, and recommend them to the Lord Chancellor. The Lord Chancellor can reject the selection made by the Commission only once, and ask for reconsideration one further time. At the third stage he must accept the selection of the Commission. The power of the Lord Chancellor to reject the selection can only be exercised on the ground that, in the Lord Chancellor’s view, the person selected is not suitable for the judicial office concerned (sections 29, 30 and 73, 74 of the 2005 Act). The appointments are made by the Queen by letters patent. The Prime Minister intervenes in the nomination of the Supreme Court justices by making a recommendation which person to appoint to the vacancy; however, his role is purely formal because he must recommend the person whose name has been notified to him by the Lord Chancellor (section 26(3) of the Constitutional Reform Act 2005). Section 63(2) of the 2005 Act expressly provides that judicial appointments must be based solely on merit.
Judges of the Supreme Court hold office during good behavior and may be removed from it only on the address of both Houses of Parliament (section 33). Their salary, which is to be determined by the Lord Chancellor with the agreement of the Treasury, can be increased but may not be reduced (section 34(4)). The Lord Chancellor and the other Ministers of the Crown are under a statutory duty to uphold the continued independence of the judiciary. In particular, they must not seek to influence particular judicial decisions through any special access to the judiciary (section 3(1),(5)).
A peculiar feature of the common law designed to protect the authority of the courts is the concept of contempt of court. The law of contempt is designed to ensure that court orders are obeyed, that court proceedings are not disrupted and that the course of justice is not impeded by improper comment upon litigation in process or criticism of individual judges. Persons to be found guilty of committing a contempt can be fined or imprisoned by the court, either in a summary procedure in relation to a contempt committed “in the face of court” (e.g. abusive or insulting behaviour of witnesses) or in separate proceedings in cases which involve comment upon legal proceedings.
2. Constitutional jurisdiction
The United Kingdom does not have a specialized constitutional jurisdiction like many countries on the Continent (e.g. France, Germany, Italy, and Spain). But the superior courts are competent to determine constitutional issues which are brought before them in the context of civil, criminal or public law litigation in exercising their ordinary jurisdiction. The constitutional role of the superior courts has been strengthened through the Human Rights Act 1998 which gives them the power to scrutinize legislation, including primary legislation, for its consistency with the Convention rights and—subject to certain conditions—to issue a declaration of incompatibility of statutory provisions with those rights, and the emergence of “devolution issues”, i.e. of legal controversies concerning the scope of the devolved powers of the Scottish, Welsh and Northern Ireland regional institutions (see VII. 2. below).
3. Role of tribunals
Nor does the United Kingdom, unlike France or Germany, have a specialized set of courts for the adjudication of disputes concerning the interpretation and application of rules of administrative law. Instead most disputes involving the proper exercise of the power of government bodies are dealt with by so-called tribunals. They decide matters allocated to them by particular statutes (e.g. the Immigration Act or the Housing Act). They use procedures that are less formal than those of ordinary courts and are not bound by strict rules of evidence. On the other hand, their independence is less effectively protected—perhaps not surprisingly, since they often include lay persons who have been chosen for their expertise in the matter concerned or as representative of the interests involved. Their main advantages are the relative speed with which they operate and the lower costs they offer in comparison to ordinary court proceedings.
The Tribunals, Courts and Enforcement Act 2007 provides for radical overhaul of the tribunal system in the UK, creating a new unified structure with two new tribunals to embrace the former fragmented scheme, and a Senior President of Tribunals. Section 3 of the Act creates two new tribunals to which existing jurisdictions will be transferred, a First-tier Tribunal and an Upper Tribunal. The tribunals are divided into several chambers, each to bring together a single subject matter, for example employment. Some tribunals will still lie outside the new system. There will be a right of appeal on a question of law from the First-tier to the Upper Tribunal and some limited jurisdiction for judicial review. The Upper Tribunal will be a senior court of record. There is a right of appeal to the Court of Appeal of England and Wales, Court of Appeal in Northern Ireland or Court of Session (Scotland).
4. Judicial review of administrative action
Decisions of tribunals are generally subject to appeal on points of law to the superior courts in the procedure for judicial review. Judicial review is the procedure whereby a court of law examines the conduct of a body or person in order to establish whether that body or person has acted lawfully, i.e. has stayed within the scope of its lawful powers. It plays a central role in ensuring that public decision-making bodies act to exercise their powers in accordance with the Rule of Law.
The Supreme Court Act 1981 provides that no application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of the court. In particular, leave shall not be granted until the court is satisfied that the applicant has a sufficient interest in the matter to which the application relates. The courts frequently have interpreted the locus standi requirement broadly, arguing that flagrant and serious breaches of the law by persons and bodies acting in the exercise of governmental authority have to be checked in order to preserve the Rule of Law.118 In accordance with recent case law it makes no difference whether that authority is derived from statute or from the royal prerogative, although some areas in which it is exercised may be more suitable to judicial review than others.
The main grounds for judicial review are illegality, irrationality and procedural impropriety, including the failure to observe basic rules of natural justice. The remedies available to the successful applicant in a procedure for judicial review include both private law remedies (i.e. award of damages and the equitable remedies of declaration and injunction) and public law remedies (i.e. prohibition, mandamus; certiorari; the latter allows the court to quash the attacked decision of the administrative authority and to substitute it, where necessary, with its own decision).
1. Structure of the United Kingdom
The United Kingdom is a multinational-state. Its inhabitants identify themselves not only as “British” but also—indeed sometimes exclusively—as Scots, Welsh, Ulstermen or Irish. The United Kingdom is a Union of what were formerly the separate states of England, Scotland and parts of Ireland.
The Union between England and Scotland is the result of the Treaty of Union concluded by the two countries in 1707. The Treaty provides for the abolition of the respective sovereign Parliaments of England and Scotland and the creation of a common Parliament under the title of the Parliament of Great Britain, and a common flag, common taxation and common coinage. It also contains several important clauses designed to protect continued existence and autonomy of the Scottish legal system which prior to the Treaty of Union had developed in close contact to the so-called civil law systems on the Continent and thus was markedly different from the common law system in England. In particular, the provisions of the Treaty provide that the Scottish superior courts—the Court of Session (the highest court on private law matters) and the High Court of Justiciary (the highest criminal court) should remain “in all time coming” with their authority and privileges. While the Parliament of Great Britain was authorized to alter the laws of Scotland, it was stipulated that no alteration should be made in private law, “except for evident utility of the subjects within Scotland”. However, whether the Treaty offers sufficient protection against the subsequent enactment of statutes by the Union Parliament which violate the terms of the Union or whether the new legislation would prevail in accordance with the principle of Parliamentary supremacy (see III. 1. above) remains unclear. The question was occasionally raised before the courts prior to the entry into force of the devolution legislation but received no definitive answer.119 The feeling that the UK government and the Westminster Parliament did not take adequately into account the particular needs of Scotland was a driving force behind the movement for devolved government in Scotland since the 1960s which finally succeeded with the adoption of the Scotland Act 1998.
Unlike Scotland, Wales has never been a State in its own right. It was conquered by the English at the end of the 13th century and has been subject to English law since 1284. The enduring Union between England and Wales was formally effected by an Act of the English Parliament in 1536. English became the official language, and all Acts of Parliament were deemed to extend to Wales. Throughout the 19th and 20th century nationalist feeling has been on the rise, with demands for a greater recognition and representation of Welsh interests, although separatism has not been an issue.
In Ireland, English rule stretches back to the twelfth century when Henry II was awarded the overlordship of Ireland by the Pope, although the decision to extend English influence beyond the Pale—a stretch of coastal land running some 50 miles north of Dublin and 20 miles inland—was only taken during the reign of Elizabeth I (1558-1603). The Acts of Union 1800 united the Kingdom of Great Britain and the Kingdom of Ireland to create the Kingdom of Great Britain and Ireland, with a common Parliament at Westminster. When the Union broke down as result of the Irish uprising in the early 20th century, the UK Parliament passed the Government of Ireland Act under which the country was partitioned, with six of the original nine Ulster counties being separated from the remainder of Ireland. In the south, a Council of Ireland was to be established, with exclusive jurisdiction over a number of all-Ireland matters. In the northern counties, characterized by a majority of Protestants, a separate Parliament was set up. However, the Parliament of Southern Ireland, the Dail, rejected the scheme. After further fighting an Anglo-Irish Treaty was finally signed in 1921 which provided for the creation of an Irish Free State with Dominion status under the Crown, to be represented by a Governor-General. The Parliament of Northern Ireland was given the choice as to whether or not it should be part of the Irish Free State. It decided not to join the Free State, with the consequence that the 1920 Act continued in force in Northern Ireland whereas it ceased to apply in the territory of the Irish Free State. Under the Act, Northern Ireland enjoyed a measure of self-government from 1920 to 1972. The Northern Ireland Parliament at Stormont had powers to make laws for the “peace, order and good government” of Northern Ireland. This included law and order, the police and lower courts, local government, health and social services, education, planning and internal trade, agriculture and finance. The Executive was headed by the Governor, appointed by the Crown. Westminster retained reserved powers and the ultimate sovereignty over Northern Ireland. Religious strife, in addition to the reserved powers, ensured that the U.K. continued to play a role in Northern Ireland. The period of self-government came to an end when in 1972, in response to growing unrest and increasing sectarian violence in Ulster known as “the troubles”, the UK government assumed full control, proroguing the Parliament at Stormont and transferring the powers of the Northern Ireland government to a Secretary of State for Northern Ireland. Subsequent attempts in the 1970s and 1980s to restore devolved government were unsuccessful.
The Labour government elected in 1997 was committed to devolving government and legislative powers to Scotland and Wales and to renew efforts to establish peace as a precondition for the restoration of devolved government in Northern Ireland. As a first step, referendums were held in Scotland and Wales in which local voters backed the government’s schemes for devolution. Subsequently the Scotland Act 1998 and the Government of Wales Act 1998 were enacted by Parliament. In Northern Ireland, lengthy talks between the governments of the United Kingdom and the Republic of Ireland with the parties to the conflict finally resulted in the ‘Good Friday’ Agreement of April 1998 which provides, inter alia, for the restoration of devolved government in Northern Ireland. It was subsequently endorsed by voters in Northern Ireland and the Republic of Ireland in separate referendums. The possibility of complementing devolution in Scotland, Wales and Northern Ireland through the creation of regional assemblies in England has occasionally been discussed,120 but government plans to this end were shelved after the rejection of the proposal to introduce an elected assembly in the North Eastern region in 2004 seemed to demonstrate that there is little interest in such schemes in the English regions for the time being.
The Scotland Act 1998 creates a unicameral Parliament whose 129 members are elected every four years, partly (73 members) in single-member constituencies by simple majority vote and partly (59 members) in regional constituencies under an ‘additional member’ system of proportional representation. The Scottish Executive comprises the First Minister, other ministers and the law officers (i.e. the Lord Advocate and the Solicitor-General). The First Minister is appointed by the Queen upon nomination by the Parliament (section 46 of the Scotland Act 1998). Under the mixed electoral system practiced in Scotland the formation of coalition governments is much more likely than at the UK level. Following the 2007 elections to the Scottish Parliament the coalition government of Labour and the Liberal Democrats was replaced by a government led by the Scottish National Party (SNP) and tolerated by the Greens. The Executive is accountable to Parliament and must resign if the latter resolves that the Executive no longer enjoys its confidence.
Under the Scotland Act 1998 the Scottish Parliament enjoys broad law-making powers on all those matters which the Westminster Parliament has not reserved to itself. Reserved matters include the Crown, the Union, foreign affairs, the civil service, defense of the realm and a long list of domestic matters, including fiscal, economic and monetary policy, trade and industry, but also certain aspects of home affairs (e.g. immigration and nationality), energy, social security, employment, broadcasting and equal opportunities (see Schedule 5 to the Scotland Act 1998). In addition, the Scottish Parliament may not enact legislation which affects the law of any country outside Scotland or conflicts with Community law or the rights guaranteed by the European Convention on Human Rights (section 29(2) of the 1998 Act). If the Scottish Parliament were to go outside its competence by legislating on a reserved matter or by ignoring any of the other limits just mentioned, the provision in question would not be law (section 29(1) of the Scotland Act 1998).
When a Bill is introduced in the Parliament, the responsible minister must be satisfied that it is within the competence of the Parliament, and the presiding officer must also consider the matter (section 31). The Supreme Court may be asked to determine whether the Bill is within the Scottish Parliament’s competence (section 32A). The Scotland Act 1998 also provides for the adjudication of ‘devolution issues’. Such issues may arise in any court or tribunal proceedings in which it is claimed that an Act of the Scottish Parliament or executive decision does not stay within the devolved powers, including the limits resulting from Community law and the European Convention on Human Rights (Schedule 6 to the Scotland Act 1998). A devolution issue may be referred by the court or tribunal in which it is raised to a superior court (in Scotland to the Court of Session or the High Court of Justiciary) and from such a decision appeal may lie to the Privy Council/Supreme Court.
The Scotland Act 1998 does not create a federal system in the legal sense. The devolution arrangements do not affect the power of the Westminster Parliament to legislate for Scotland and, in doing so, to override any laws the Scottish Parliament may have enacted in the exercise of its devolved powers (see section 28(7) Scotland Act 1998). Prior to some expectations, it has done so frequently, with no less than 42 “Sewell motions” being passed during the first term of the Scottish Parliament.121 The Sewel motions derive their name from the convention that Westminster will not exercise its power to legislate on devolved matters without the prior consent of the Scottish Parliament.
Although it had been widely assumed that Labour would dominate the new Scottish Assembly (elected under a system of proportion representation) for the foreseeable future, this assumption quickly proved to be wrong. Due to a series of untimely deaths of prominent Scottish Labour politicians and a lack of talented people in the younger generation Labour soon lost its commanding position in Scottish politics. The Labour government of the first legislature was replaced by a Labour-Liberal coalition in the second, a minority Scottish National Party (SNP) government in the third and a majority in the current legislature. As promised in the 2011 election campaign, the SNP government moved quickly to schedule a referendum on national independence in 2014, exactly 700 hundred years after early attempts by the English to subdue the Scottish were decisively defeated in the famous Battle of Bannockburn. Unlike the Spanish government in the case of Catalonia, the Conservative-led government in London did not try to block the referendum by resorting to legal arguments (which could be derived from both the Treaty of Union and the Scotland Act 1998).
In the end, however, the independence campaign failed, although by a closer margin than many had expected at the outset of the campaign (55 to 45). In response to the unexpected strength of the pro-independence movement, Westminster considerably extended the powers of the devolved institutions in Edinburgh in the Scotland Act 2016. The Scotland Act 2016 gives extra powers to the Scottish Parliament and the Scottish government. In particular, it hands control over the electoral system to the Scottish Parliament (which can now adopt changes to the electoral rules by a two-thirds majority), grants it full powers to set income tax rates and recognizes Scotland’s right to receive half of the Value Added Tax raised in Scotland. In addition, the Act recognizes the Scottish Parliament and a Scottish Government as permanent features of the UK’s constitutional arrangements which may only be abolished by way of referendum.
With the vote of a majority of the British electorate in favor of leaving the European Union in the referendum of 23 June 2016, however, a second independence referendum seems to be firmly back on the agenda of Scotland’s SNP government, which can point to the fact that the Scottish electorate voted by a comfortable margin in favor of continued EU membership and does not want to lose access to the EU’s single market.
The powers devolved to Wales under the Government of Wales Act 1998 differed markedly from those devolved to Scotland. Although the legislation provided for the creation of a directly elected National Assembly for Wales (as in Scotland, its members are elected under a mixed system combining majority vote in single-member constituencies with proportional representation based on regional constituencies), it was given no general power to make laws for Wales. Instead the 1998 Act transferred the responsibilities formerly exercised by the Secretary of State for Wales, including the power to make secondary legislation, to the Assembly. The United Kingdom Parliament continued to legislate for Wales while the executive powers formally vested in the Assembly were in practice exercised on its behalf by the Assembly secretaries, soon referred to as ‘ministers’. The result was a lack of accountability as decisions were taken in the name of the Assembly by ministers or civil servants under delegated powers.
In 2004, the Assembly appointed a commission which recommended that the Assembly should be given a broad power to make laws for Wales and that there should be a clear distinction between legislative and executive powers. In response the UK Parliament enacted the Government of Wales Act 2006. The 2006 Act establishes a Welsh Assembly Government as an entity separate from the National Assembly. The Government is headed by the First Minister nominated by the Assembly for appointment; he appoints the other ministers from among the Assembly members. Ministers must resign if they no longer enjoy the confidence of the Assembly (sections 47 and 48 Government of Wales Act 2006).
In addition, the Act provides for the transfer of law-making powers from the United Kingdom Parliament to the Welsh Assembly on subject matters like agriculture, economic development, education, social welfare, town and country planning and tourism (Schedule 7 to the Government of Wales Act 2006), to come into force once the transfer is approved by a majority of the Welsh electorate in a referendum (section 105 of the Government of Wales Act 2006). The referendum took place on 3 March 2011 and ended in a resounding victory of the yes vote. The rules for the exercise of the new power are modelled closely on those applying to enactments of the Scottish Parliament. Acts on matters which have been reserved to the UK Parliament or which conflict with Community law or Convention rights are not law (section 108).
c) Northern Ireland
The Good Friday Agreement of 1998 provides for the creation of a devolved Assembly in Northern Ireland elected on the basis of proportional representation (Single Transferable Vote) and a power-sharing Executive chaired by a First Minister and Deputy First Minister who are drawn from the Unionist and Nationalist blocs, respectively. The other ministerial offices in the Executive and the chairs of the various Assembly Committees which oversee the work of ministers are allocated to the respective parties sitting in the Assembly according to their electoral strength. Key decisions in the Assembly, which include those on the election of the Assembly Chair, of the First and Deputy Minister, standing orders and budget allocations, have to be taken on a cross-community basis, i.e. either with an absolute majority of the Assembly members present and voting which include a majority of the Unionist and Nationalist designations present and voting, or with a 60 per cent majority which includes at least 40 per cent of the Nationalist and Unionist designations.
The Assembly is given the power to adopt primary legislation in the devolved areas, i.e. those areas that were administered by the six Northern Ireland government departments at the time of the Agreement, including agriculture, economic development, education, the environment, health and social security. Crucially, law and order matters were part of the reserved matters which did not fall within the competence of the Northern Ireland institutions under the original arrangements but could be devolved to them at some future point. Excepted matters like foreign relations and defence will continue to fall within the responsibility of the UK Government until Northern Ireland ceases to be part of the United Kingdom. The sovereignty of the UK Parliament, i.e. its right to legislate for Northern Ireland, remains unaffected by these arrangements. By enacting the Northern Ireland Act 2000 Parliament has authorized the UK Government, by means of an Order in Council whose draft version has to be submitted for parliamentary approval, to suspend the devolved institutions.
The UK government made use of these powers in 2002 and again in 2003 when, faced with a virtual complete breakdown of communication between the main political forces in the Assembly and the Executive, it decided to suspend devolution and to return to direct rule by London. Devolution was restored to the Northern Ireland Assembly only on May 8, 2007, following fresh Assembly elections and the establishment of a four-party Executive headed by Reverend Ian Paisly from the (Unionist) DUP as First Minister and Martin McGuiness from (Nationalist) Sinn Féin as Deputy First Minister. Although hiccups would occur every now and then, the constitutional arrangements held up in subsequent years. However, the majority decision of the British electorate in the referendum of 23 June 2016 to leave the European Union poses a serious threat to the Peace Agreement for Northern Ireland (whose electorate voted in favor of ‘remain’, although by a less comfortable margin than in Scotland), as it raises the specter of the reestablishment of border controls between Ireland and Northern Ireland, which will become the EU’s external frontier on Britain’s exit from the EU, something which is hardly acceptable to nationalists. No solution to this dilemma is yet in sight.
1 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 (para. 40).
2 A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law, 14th edition 2007, 12.
3 See, e.g., A. Carroll, Constitutional and Administrative Law, 8th edition 2015, 60.
5 Bradley & Ewing (note 4), 13, quoting Pollock and Maitland’s famous dictum from “The History of English Law”.
6 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 (para. 60).
7 For a discussion on the doctrine of precedent in English law see Cross & Harris, Precedent in English Law, 4th edition 1991.
8 Case of Proclamations (1611) 12 Co Rep 74.
9 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5.
10 Entick v Carrington (1765) 19 St Tr 1030.
11 See Lord Bingham in R v Environment Secretary, ex p. Spath Holme Ltd  2 AC 349, 388.
12 I. Jennings, Cabinet Government, 3rd edition 1959, 81/82.
13 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 1886, 25.
14 H. Barnett, Constitutional and Administrative Law, 8th edition 2011, 39.
15 For a list of the most important conventions see Barnett (note 16), 33.
16 Bradley & Ewing (note 4), 29.
17 A-G v Jonathan Cape Ltd  QB 752.
18 Dicey (note 15), 35.
19 See Barnett (note 16), 156:
“Sovereignty is the fundamental rule of the common law, for it is the judges who uphold parliament’s sovereignty. For as long as the judges accept the sovereignty of parliament, sovereignty will remain the ultimate rule of the constitution.”
20 A. Bradley, The Sovereignty of Parliament—Form or Substance?, in: J. Jowell/D. Oliver, The Changing Constitution, 5th edition 2004, 31.
21 Bradley & Ewing (note 4), 52.
22 Case of Proclamations (1611) 12 Co Rep 74.
23 Most famously in the much celebrated Dr Bonhams Case (1610) 8 Co Rep 113b.
24 Dicey (note 15), 36.
25 See Barnett (note 16), 158.
26 Burmah Oil Co v Lord Advocate  AC 75.
27 Edinburgh and Dalkeith Railway v Wauchope  8 Cl. & F. 710, 725.
28 Bradley & Ewing (note 4), 56.
29 Barnett (note 16), 148.
30 Maugham LJ in Ellen Street Estates Ltd v Minister of Health  1 KB 590, 597.
31 Harris v. Minister of the Interior  (2) SA (South Africa).
32 Jackson v. Attorney General  3 WLR 733 and below V. 4. c).
33 Dr Bonhams Case (1610) 8 Co Rep 113b.
34 Pickin v British Railways Board  AC 765 HL.
35 Garland v. British Rail Engineering Ltd.  2 AC 751.
36 Case 26/62, Van Gend en Loos v. Nederlandse Tarief Commissie  CMLR 105, 129.
37 Case 6/64, Costa v ENEL  CMLR 425, 455-6.
38 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 (para. 60).
39 H.P. Bulmer Ltd. v. Bollinger SA  Ch. 401, 408.
40 Garland v. British Rail Engineering Ltd.  2 AC 571.
41 Case 213/89, The Queen/Secretary of State for Transport, ex parte Factortame, ECJ Rep. 1990, I-2433.
42 R v Secretary of State for Transport, ex parte Factortame Ltd  2 AC 85.
43 Case 221/89, The Queen/Secretary of State for Transport, ex parte Factortame, ECJ Rep. 1991, I-3905.
44 R v Secretary of State for Transport, ex parte Factortame Ltd No. 2  1 AC 603, 643, per Lord Bridge.
45 Human Rights Act 1998, s. 3(1).
46 Human Rights Act 1998, s. 3(2).
47 Human Rights Act 1998, s. 4.
48 Bradley (note 22), 59.
49 For the situation in Wales and Northern Ireland see below VII. 2.
50 The extensive use of Westminster’s continuing supremacy is controversial and may have been facilitated by the close relationship between the Labour governments in London and Edinburgh during the first years of devolution, see Bradley & Ewing (note 4), 46.
51 Bradley (note 22), 53.
52 W. Blackstone, Commentaries on the Laws of England, vol. I, 1765, 239.
53 Dicey (note 15), 353.
54 According to Coke CJ, where statute affected the prerogative power the King could suspend the Act of Parliament. In the case of Thomas v Sorrell  it was declared that the King could not dispense with a penal law made for the public good. However, in Godden v Hales  the court accepted that the King could dispense with a penal law where that law fell within his jurisdiction. But the excessive use of the dispensing power by James II., who used it as a tool to rehabilitate Catholicism, contributed heavily to his downfall and the “Glorious Revolution” of 1688.
55 In the Case of Ship Money (1637) the court confirmed the power of the King to charge his subjects for the safety and defence of the Kingdom, notwithstanding any Act of Parliament. Acts of Parliament that took away the royal power in defence of the realm were void. This court ruling went very far in affirming the prerogative powers of the Crown on defence matters. In particular, in allowing the Crown to rely on the doctrine of necessity in order to justify taxing powers of the Crown of considerable significance, it tilted the balance of power between Parliament and the Crown in favour of the latter. However, the Shipmoney Act passed in 1640 by Parliament reversed the decision and Article 4 of the Bill of Rights of 1689 settled the matter once and for all by declaring it illegal for the Crown to levy money without parliamentary approval.
56 This claim was rejected by Coke CJ in the Case of Prohibitions  in which he declared that legal disputes were not decided by natural reason which the King could also claim to possess, but by the artificial reason and judgment of the law which required long study and experience and was therefore reserved to the judges. In a similar vein, Coke refused several years later the request of the King to adjourn legal proceedings before the Court of King’s Bench with the argument that this would cause a delay of justice contrary to the law, whereupon he was dismissed from the Bench. On the other hand, the courts decided in the Five Knights case (1627) that where the King detained a prisoner under special order the court would not look behind the order. This was contrary to the common law rule according to which the legality of a detention could be tested before the courts by means of a writ of habeas corpus. Thus, while the King could not determine cases, he could nevertheless hold a subject prisoner free from interference by the judges. The Petition of Rights of 1628, however, declared such power to be unlawful, and in 1640 the Habeas Corpus Act guaranteed that habeas corpus would lie against the Crown.
57 Blackburn v Attorney-General  1 WLR 1037.
58 R v Secretary of State for Foreign Affairsex parte Rees-Mogg  QB 552.
59 Attorney General v de Keysers Royal Hotel Ltd  AC 508.
60 See Immigration Act 1971, s. 33(5): “This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.”
61 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority  2 WLR 590.
62 Lord Diplock in BBC v Johns  Ch 32.
63 Laker Airways Limited v. Department of Trade  QB 643.
64 Council of Civil Service Unions v Minister of State for Civil Service  AC 374.
65  QB 349.
66  QB 811.
67 R v Secretary of State for the Home Department ex parte Fire Brigades’ Union  2 AC 513.
68 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5. The European Union (Notification of Withdrawal) Act was finally adopted on 13 March 2017 after amendments proposed in the House of Lords, which would have required parliamentary approval of the outcome of the exit negotiations by both Houses of Parliament, had been voted down in the House of Commons.
69 Dicey (note 15), 193–195.
70 Dicey (note 15), 180.
71 Dicey (note 15), 186.
72 Dicey (note 15), 189.
73 See P. Craig, Formal and Substantive Conceptions of the Rule of Law, Public Law 1997, 468–484; J.W.F. Allison, The English Historical Constitution, 191–195.
74 J. Jowell, The Rule of Law Today, in: Jowell/Oliver, The Changing Constitution (see note 22), 16.
75 See Allison (note 75), 195/96. Jowell (note 76) emphasizes that “the practical implementation of the Rule of Law makes it clear that it is a substantive and not merely a procedural principle” and notes that UK courts nowadays are increasingly prepared to adopt stricter scrutiny of a decision where human rights are in issue.
76 O. Hood Phillips & Jackson, Constitutional and Administrative Law, 8th edition by P. Jackson and P. Leopold 2001, para. 2-020.
77 W. Bagehot, The English Constitution, 1878, 10.
78 For an illustration of this approach see Anisminic v Foreign Compensation Commission  2 AC 147.
79 J. Alder, Constitutional & Administrative Law, 7th edition 2011, 186.
80 R (Hooper) v Work and Pensions Secretary  1 WLR 1681.
81 R (Anderson) v Secretary of State for the Home Department  4 All ER 1089.
82 See Barnett (note 16), 89.
83 Bradley & Ewing (note 4), 420.
84 Entick v Carrington (1765) 19 St Tr 1030.
85 See Al-Skeini and others v. Secretary of State for Defence  UKHL 26 in which the House of Lords held that the Act applies only in very narrow circumstances to acts done or omissions committed by British troops operating outside the national territory.
86 For a summary of the main case law relating to the definition of “public authority” within the meaning of the HRA see N. Parpworth, Constitutional & Administrative Law, 5th edition 2008, para. 16.81.; D. Oliver, Functions of a Public Nature under the Human Rights Act, Public Law 2004, 328; see also Joint Committee on Human Rights, The meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003-04, HL Paper 39, HC Paper 382.
87 See N. Bamforth, The true ‘Horizontal Effect’ of the Human Rights Act 1998, Law Quarterly Review 117, 117 (2001); D. Beyleveld & S. Pattinson, Horizointal Applicability and Horizontal Effect, Law Quarterly Review 118, 623 (2002).
88 For a summary of the relevant case law on locus standi in judicial review procedures see Parpworth (note 89), paras. 12.61–12.64.
89 See J. Marriott & D. Nicol, The Human Rights Act, Representative Standing and the Victim Culture (1998) EHRLR 730.
90 See A. Mowbray, The European Court of Human Rights’ Approach to Just Satisfaction, Public Law 1997, 647.
91 See L.P. Carnegie, Privacy and the Press: the Impact of Incorporating the European Convention on Human Rights in the United Kingdom, Duke Journal of International & Comparative Law 9, 311 (1998).
92 See P. Cumper, The Protection of Religious Rights under section 13 of the Human Rights Act 1998, Public Law 200, 254–263.
93 Lord Nicholls in Ghaidan v Godin-Mendoza  2 AC 557, at para. 30.
94 Lord Nicholls in Re S (FC)  AC 291, at para. 39.
95 R (Daly) v Secretary of State for the Home Department  UKHL 26, at para. 27.
96 N v Secretary of State for the Home Department  2 AC 68.
97 See Allison (note 75), 50.
98 Hood Philipps & Jackson (note 78), para. 15-007.
99 Town Investment Ltds. v Department of the Environment  AC 359, HL.
100 Bagehot (note 79), 12.
102 See Parpworth (note 89), para. 2.12.
103 The Scottish National Party (SNP) even managed to become the third party in Westminster, almost monopolizing parliamentary representation from Scotland, by taking 56 out of 59 Scottish seats in the 2015–2017 Parliament. It retains third position in the current legislature elected in June 2017, although with a substantially reduced number of seats (35).
104 R v Rule  2 KB 375. Parliamentary privilege was upheld as being compatible with Article 6 (right to a fair trial) and Article 13 (right to an effective remedy) of the European Convention on Human Rights by the European Court of Human Rights in A v United Kingdom  All ER (D) 264 (Dec). Conversely, Section 13 of the Defamation Act 1996 now allows Members of Parliament to bring an action for defamation to defend their actions, provided that they waive Article 9 protection and thereby allow the defendant to submit evidence which otherwise would be excluded on the basis of privilege, see Barnett (note 16), 470.
105 Report from the Select Committee on the Official Secret Acts, HC 146 (1938–39).
106 See Barnett (note 16), 464. The Board subsequently withdrew its action for libel and was cleared from any suspicion of wrongdoing in an independent enquiry set up by the minister.
107 Stockdale v Hansard (1839) 3 St Tr (NS) 723.
108 The decision in Stockdale v Hansard was formally reversed by statute in 1840 through the enactment of the Parliamentary Papers Act 1840 which provides that the publication of parliamentary papers is protected by privilege.
109 Pepper v Hart  2 WLR 1032.
110 Occasionally there have been claims that peerages have been awarded to bribe supporters or in exchange for generous donations to party finances, and a police enquiry into the possible sale of life peerages in exchange for party political contributions during the Blair government has been under way for some time.
111 See the government’s 2007 White Paper: The House of Lords: Reform, Cm 7027.
112 Alder (note 81), 259.
113 Private Bills are those which—unlike Public Bills—are not intended to alter the general law but are directed to particular persons or places, e.g. a Bill to build a new section of a railway line, see J. Alder, Constitutional and administrative law, 8th edition 2011, 286.
114 Even Finance Bills—which include the taxes that must be authorized afresh each year—are not automatically Money Bills, and over half of the Finance Bills sent to the Lords since the enactment of the Parliament Act 1911 have not been certified as Money Bills, see Barnett (note 16), 443.
115 Jackson v. Attorney General  3 WLR 733.
116 In criminal cases the final court of appeal is the High Court of Justiciary in Edinburgh.
117 McGonnell v United Kingdom  30 EHHR 289.
118 See, e.g., R v Secretary of State for Foreign & Commonwealth Affairs, ex parte World Development Movement Ltd  1 All ER 111.
119 MacCormick v Lord Advocate  SC 369; Gibson v Lord Avocate  SLT 1975.
120 See P. Leyland, Post Devolution: Crystallising the Future for Regional Government in England, Northern Ireland Legal Quarterly 56, 435 (2005).
121 Bradley & Ewing (note 4), 46.