Public Law Notes PDF

PUBLIC LAW NOTES WHAT IS PUBLIC LAW? -> A branch of law which consists of rules and principles associated with the regulation of a particular state and its government -> Focuses on the powers and relations between the governing public institutions of a country -> Modulates the relationship between individuals and the state and ensures the legal system is regulated -> 2 main components: constitutional law (governing framework and fundemental institutions of a state) and administrative law (gives public authorities and public bodies legal power/duties) -> Public law is composed of: 1) institutions 2) constitutional principles 3) constitutional practices What is a constitution? -> collection of rules, conventions and practices which establish and regulate government powers + organisation as well as the relationship between state institutions + between state and citizens -> Perceived as highest source of power + authority in government system as it precedes government, limits executive powers and ensures protection of individual rights -> Reflects democratic principles -> UK constitution described as a set of rules (legal + non-legal) that establish/regulate the entire government system -> Everywhere but the UK defines constitution as a collection of legal rules contained in 1 document Features of the Uk Constitution: 1. Uncodified: -> UK has an uncodified nature in which there is no single legal document which outlines state’s basic, fundamental rules (New Zealand is also uncodified) -> UK constitution is instead derived from a range of legal + non-legal sources including parliamentary acts, case law (common law) and constitutional conventions, evolving over time since Norman Conquest (1066) -> Its gradual evolution suggests that its components serve as ordinary law, so amendments are easier to implement through a simple majority in parliament -> Consists of similar features to that of a codified constitution 2. Flexible: -> UK has a flexible constitution, enabling it to adapt to societal change with minimal procedural constraints, making it more relevant -> parliament passes numerous acts which change the constitution -> Flexible nature means that there is no separation between laws pertaining to constitutions and regular laws as they have the same legal enforcement 3. Subordinate -> UK’s uncodified constitution is subordinate to parliamentary sovereignty as its powers are conferred by a higher authority (parliament) -> UK’s constitution is not protected from politics and has no other safeguards -> Parliamentary acts can amend constitution as there is no distinction between higher and ordinary law -> UK Supreme Court which succeeded Appellate Committee of the HOL , functions primarily as highest court of Appeal but doesn’t have special powers to challenge parliamentary sovereignty and its ability to scrutinise executive actions is restricted by justiciability principle 4. Unitary -> UK operates under a unitary constitutional system in which power (executive + legislative) lie in the centre in a single location; Westminister. -> Both Central government + Parliament are authorised to make decisions and law affecting the entire UK -> Although there are local authorities and devolved powers granted to Scotland, Wales and Northern Ireland, these entities are legally dependent on the central government and can have their powers revoked by parliament 5. Separation of Powers - Parliamentary -> The UK has a partial separation of power as there is an overlap between executive + legislative branches as the executive (government ministers) are drawn from legislature (parliament) -> However, ‘checks and balances’ system was developed for this concern so that one state branch can scrutinise/regulate the other + limit their power -> State power is divided into 3 key constitutional branches: the legislative, the executive and the judicial branches -> Doctrine of Separation of Powers mandates that these powers be exercised by evidently distinct individuals + institutions to prevent power concentration/abuse and thus avoiding oppressive tyrannical rule -> Legislature: representative power as it is elected by the public and expresses their views. It restricts governmental power by holding them accountable and creates laws in the form of parliamentary acts, statutes and legislation -> Executive: governs according to the law as set out by legislature/policy execution, accountable to legislature and handles decision-making -> Judiciary: Independent, handle legislation interpretation, review executive action, dictate legal disputes. 6. Monarchical -> UK has a monarchical system where its hereditary monarch serves as Head of State, Commander-in-Chief of the Armed Forces and Supreme Governor of the Church of England within a constitutional monarchy established by the Bill of Rights 1689 -> System limits Crown’s powers via constitutional rules, with Bogdanor describing a constitutional monarch as one which ‘reigns but does not rule’ -> Monarch currently only holds formal authority whilst government handles executive decision- making -> The monarch, governed by constitutional conventions, grants royal assent to legislation, summoning Parliament, appointing a new PM and approving Orders in Council -> If monarch cannot fulfil duties, Regency Act 1937 enables the next in line to be appointed as Regent and for short-term absences, Counsellors of State are designated on monarch’s behalf Features of Other Constitutions 1. Codified -> Constitutional rules are written in a single place, established at a particular point in time -> document unified and establishes basis of the state -> difficult to amend -> Superior to all institutions and people within a state, including legislature as it is a higher source of law which differs from ordinary laws in terms of creation + enforcement -> Typically arise following significant events such as revolutions, to establish a new government structure, as exemplified with the US Constitution, formed in 1787. 2. Rigid -> constitutional amendment necessitates a special process which is time-consuming and requires societal acceptance -> Constitutional laws are more difficult to amend than ordinary laws as exemplified by the US Constitution only being amended 27 times in 240 years -> Advantages: offers consistency + certainty of long-lasting protection and more sacred 3. Supreme -> In the US, primary state institutions are perceived as equal under constitution as a result of the prevalence of codified constitutional document -> Codified constitutional document has supreme authority, making all legal processes/ institutions inferior, including regular legislative authority, subordinate to constitution -> Constitution is not controlled by any higher power -> Entrenched in which can be amended strictly through a difficult constitutional process which in the US requires 75% of states to agree + 2/3 of each house of Congress -> US: Supreme Court is ultimate interpreters of constitution with authority to invalidate actions which exceed constitutional limits, thereby protecting constitutional provisions -> Supreme Court can scrutinise legislative + executive actions 4. Federal -> Federal system establishes 2 or more levels of executive + legislative authority within country, each hold varying powers/responsibilities -> E.g. US: authority is divided between federal government who address nationwide matters+ individual states who manage problems which may vary locally -> US power distribution is contained in Article 1 specifying national government powers and the 10th Amendment reserves unallocated powers for the states/people. -> This reinforces principle of subsidiaries, enabling states to govern areas affecting their citizens’ lives, liberties + properties 5. Separation of Powers: Presidential -> Full separation of powers -> Executive branch is separate in terms of personnel 6. Republican -> Head of state is elected directly/indirectly and is referred to as the president in US, France, Ireland + Germany -> Head of state is the Head of Executive in the US + France -> Head of State is ceremonial + symbolic in Sweden + Japan A Legal and Political Constitution -> UK constitution has a dual nature, encompassing legal and political elements -> The legal constitution compromises statutory provisions, legal principles + common law rules that form the foundation of the constitutions, enforced by state institutions like parliament, the executive and the courts. -> Political constitution emphasises significance of political processes + events in shaping constitutional norms, particularly in context of UK’s uncodified constitution -> Griffith’s perspective: constitution is dynamic, evolving with daily political occurrences that are integral to its identity as legal sources. Interplay between political events like general elections or Brexit and the legal framework, exemplifies how politics influences governance + constitutional practice L. 2 Sources for the Constitution Principles of the Constitution: 1. Parliamentary Sovereignty: -> Parliament has absolute power in which it has an overpowering legal authority to form law and is the most vital principle of UK Constitution -> Sovereign power is not divided between the 3 government branches as it’s held solely in Parliament who can create or abolish any law -> Parliament can amend constitution by enacting Parliamentary Acts 2. Rule of law -> No single accepted definition but can be described as the notion which states that no governing institution or person is above the law -> The universally binding essence of law serves as a shielding principle against arbitrary, oppressive government which is a concept represented by the Magna Carta -> Lack of a codified constitution is why an independent judiciary is crucial for safeguarding the freedoms + rights of citizens -> Lord Woolf emphasises that constitutions must evolve to address needs of citizens and UK’s constitution enables for this in a flexible manner. However, this flexibility has the disadvantages of lacking protections to essential societal institutions, particularly an effective, efficient and independent legal system. Democratic society committed to the rule of law would be fundamentally flawed without such a legal framework. 3. Separation of Powers -> State power is divided into 3 branches; legislative, executive + judicial -> Uk has a partial separation of powers -> Constitutional Reform Act 2005: Enacted to ensure that constitution adequately reflects a separation of powers -> Human Rights Act 1998: Ensures that judiciary can check exercise of executive power in respect of fidelity to rights Sources of UK Constitution 1. Legislation/Statutes -> constitutional statutes differ from regular ones which typically do not contain constitutional rules -> 2002: Laws LJ proposed a distinction in Thoburn b Sunderland City Council case, defining constitutional statutes as those that either (a) condition legal relationship between citizens + state in significant way, or (b) alter fundamental constitutional rights -> This differentiation is vital as constitutional statutes cannot be impliedly repealed by ordinary statutes + can only be expressly repealed by subsequent constitutional statutes. -> E.g. Magna Carta 1297, Bill of Rights 1689, European Communities Act 1972 and Human Rights Act 1998, etc. 2. Common Law -> England + Wales is a common law jurisdiction -> common law significantly influenced development of constitutional principles in 17th/18th century + is perceived by legal figures like Coke and Blackstone as a primary source of law during that period -> Currently, statutory was supplant common law in establishing constitutional rules, but court decisions remain crucial in interpreting statutes + clarifying constitutional law -> Case law by courts developed rules and principles -> Judges have increasingly taken on a quasi-constitutional role, particularly via judicial review + HRA, with former Supreme Court President Lady Hale regarding them as ‘guardinas of UK constitution’. -> Role is exemplified in R (Miller) v Prime Minister (2019) UKSC 41; judges assessed validity of law from devolved institutions + ensure executive compliance with law -> Constitutional principles including limitations on judicial power regarding parliamentary processes + binding nature of statutes enacted by parliament, are demonstrated by various judicial decisions 3. Royal Prerogative -> An unwritten source of executive legal power within the constitution, containing powers like making treaties, issuance/revocation of passports, and deploying armed forces -> Although it is recognised by common law, powers don’t originate from Parliament Act but rather from historically monarch authority -> As Monarch’s power has diminished, many prerogative powers are currently exercised by government ministers in monarch’s name. -> A.V. Dicey described royal prerogative as ‘residue of arbitrary + discretionary powers legally left in hands of the Crown’ -> William Blackstone described it as special powers of the King -> Prerogative powers cannot be expanded/newly created (Diplock LJ) -> When a prerogative power is codified into statute, it becomes a statutory power as exemplified with Fixed-term Parliaments Act 2011 -> Prerogative powers are categorised into those exercised by Queen/King and those by the government ministers -> Monarch’s prerogatives include royal assent to legislation, appointing new PM + awarding certain honours. -> Legal prerogatives of the Crown also encompass rights like principle that the Crown can do no wrong + ownership of unmarked swans + and royal fish in UK waters -> Prerogative executive powers, exercised by ministers are vital for government efficiency + can be subject to judicial review, regulated by constitutional conventions 4. Law and Custom of Parliament -> this pertains to the special internal rules/procedures which govern behaviour of its members + its proceedings with no external entity, including the courts, permitted to intervene in Parliament’s self-regulation -> Legal framework + traditions of Parliament creates parliamentary privilege which includes specific rights + immunities granted to members of parliament and privileges of both Houses. -> This framework is established via statutes such as the Bill of Rights (1689), Judicial rulings, parliamentary resolutions and parliamentary practices 5. International Treaties -> Treaties serve as an indirect UK constitution source, reflecting UK’s legal rights +obligations under international law due to its membership in organisation like UN, NATO and previously, EU -> Relationship between domestic + international law is explained via 2 theories: dualism and monism 1. Dualist system like the UK: International + domestic law are distinct; treaties must be incorporated into domestic law via a parliamentary act, to be enforceable in UK courts. This approach aligns with parliamentary sovereignty as treaties cannot create legal rights/duties without parliamentary approval 2. Monism system: international treaties+ domestic law as equally effective, automatically incorporating treaties into national law -> UK’s legal framework needs a Parliamentary Act to bridge international treaties and domestic law, with courts presuming that parliament doesn’t intend to breach international obligations. However, if a UK statute conflicts with international law, parliamentary sovereignty prevails -> prominent exception to this dualist approach was UK’s membership in EU established by the European Communities Act 1972, enabling EU law to take effect in the UK without further legislation. -> This arrangement granted EU law precedence over UK law. Post-Brexit, EU (withdrawal) Act 2018 repealed ECA, ending EU law’s statistics as a source of UK law, although it remained in effect till the end of 2020 6. Authoritative Works -> where there is no codified collection of constitutional rules, it is beneficial for judges, lawyers, ministers + civil servants to consult the written works of authoritative commentators on the constitution for direction, even though they don’t constitute a legal source of the constitution -> Examples: Coke’s Institutes of the Laws of England, Blackstone’s Commentaries on the Laws of England, A.V. Dicey’s introduction to the study of the Law of the constitution, Privileges as well as Proceedings and Usage of Parliament 7. Constitution Conventions -> rules of political custom + practice, while not legally binding nor enforced by courts, hold great importance politically -> They produce an understanding of expected behaviour among vital constitutional figures such as the monarch, PM, ministers, Members of Parliament + Civil Servants -> Dicey calls them “rules of political morality”, emphasising their significance in ensuring the constitution operates efficiently + flexibly. -> Conventions may introduce changes, regulate institutional operations (especially within parliament), and restrict discretionary powers of the monarchy. -> E.g. Monarch exercises their power based on ministerial advice, except in grave constitutional crisis, thereby constraining exercise of power -> Conventions can be found in the Cabinet Manual, Ministerial Code, identified from past practices (bottom-up conventions), declared to exist (top-down conventions) -> Bottom-up convention identification test: Jennings Test Crucial Conventions: -> Cardinal Conventions: controlling monarch’s personal /reserve prerogatives) ->Individual Responsibility: Ministers ought to resign if they commit misconduct) -> Collective Responsibility: Cabinet ministers may disagree with cabinet policy in private but in public must support it and resign if they can’t do so -> Sewel Convention: if westminister seeks to levitate on a devolved matter or enlarge/minimise competences of devolved assemblies, it must first receive consent of devolved legislature Advantages and Disadvantages of Conventions + flexibility + adaptability — uncertainty — not legally binding — lack of accountability Creation of Convetions -> can arise from political agreements or established practices that become obligatory -> Sir Ivor Jennings identified 3 key questions for creation of a convention: existence of precedents, whether the involved parties believe they are bound by a rule and the rationale behind the rule -> Last 2 questions are crucial for validating a new practice ->Conventions can evolve or disappear. -> There’s been ongoing debate regarding establishment of a Ware Powers Convention since 2003, particularly concerning deployment of UK armed forces -> Traditionally, prerogative power was held by the monarch and exercised by PM without parliamentary approval -> However, March 2003: Tony Blair sought parliamentary approval for military action in Iraq which raised questions about whether this set a precedent for future actions. -> 2011 Cabinet Manual acknowledged a developing convention obliging parliamentary debate before troop deployment except in emergencies -> Subsequent military actions such as in Libya in 2011 + Syria 2013 tested this convention. While parliament was consulted before Syria intervention, UK engaged in airstrikes against Syrian government in 2018 without prior approval, leading to claims that convention was violated. -> status of War Powers Convention remains ambiguous with calls for a formal War Powers Act to clarify parliamentary control over military actions L. 3 Parliamentary Sovereignty Concept of Parliamentary Sovereignty -> rooted in orthodox theory articulated by A.V. Dicey who asserts that parliamentary sovereignty means that Parliament has the authority to create or repeal any law, and no individual or entity can override or invalidate its legislation -> Dicey identifies 2 aspects of the principle: 1. Positively: any act of Parliament which creates new law or modifies existing law will be upheld by courts 2. Negatively: no person/group can establish rules that contravene a parliamentary act Historical Development Pre-1688: -> Historically, the Crown held supreme authority in England with monarch exercising executive power mainly via Privy Council + some legislative power through royal proclamations -> Over time, Parliament merged as vital legislative body, particularly during the Tudor period, enabling monarchs to legalise their actions -> But Stuart Kings sought to reaffirm divine right of Kings, causing conflicts with parliament. -> Tension led to legal disputes regarding powers of the Crown + Parliament -> Bate’s case: Court upheld King James I’s right to impose taxes without parliamentary approval, while in the case of proclamations, court ruled that King could not legislate without parliament’s authority -> However, monarch retained power to summon + prorogue Parliament, limiting its authority -> Tensions escalated under Charles I who tried imposing taxes without consent + ruled without Parliament for 11 years -> conflict culminated in English Civil War (1642-51) leading to Charles I’ execution in 1649 -> Interregnum (1649-60): establishment of Oliver Cromwell as Lord Protector (1653-8) -> Restoration (1660): Charles II acceded to the throne in 1660 then James II (1685-8) which led to religious strife due to his disregard for parliamentary authority so he was overthrown in: ->Glorious Revolution (1688): William of Orange seized thrones, James II fled to France + constitutional shift where parliament became supreme over Crown Glorious Revolution and Bill of Rights 1688 -> William of Orange + Mary were invited to jointly assume the condition of accepting Bill of Rights which established a settlement between Parliament + Crown , clarifying their relationship and emphasising parliament’s superior authority over Crown -> stipulated that Crown cannot exercise authority without parliament’s consent, via Article 9 which protected freedom of speech + debates in parliament from external questioning -> Bill mandated regular Parliamentary meetings, affirmed MP’s rights to free speech + self- regulation without Crown/Courts interference -> Provisions ensured parliament can function as a sovereign legislature, establishing constitutional stability + facilitated the historic foundations for doctrine of parliamentary sovereignty -> Principle which asserts parliament’s legal supremacy over Crown was further confirmed by Act of Settlement 1700 (established that line of succession to Crown is regulated by Parliament) -> Justification of Parliamentary sovereignty is rooted in in its democratic mandate as its elected/accountable to electorate Legal Basis of Parliamentary Sovereignty: Wade, Jennings and Goldsworthy -> Parliamentary sovereignty legal basis lies with the courts in which courts recognise it as sovereign Wade and Rule of Judicial Obedience: -> Wade links parliamentary sovereignty to rule of judicial obedience which states that judges must adhere to the decisions of democratically elected parliament, emphasising that this rule is foundational to legislation legitimacy in which legislation derives its authority from this rule rather than the other way around as it is the ultimate political fact the entire legislation system hangs on -> Wade highlights 3 points for basis of legal sovereignty: 1. Recognition of sovereignty: Parliament is sovereign because courts recognise it acts as such. This is supported by Lord Steyn in R (Jackson) v Attorney-General who explained that parliamentary sovereignty is a construct of common law formed by judges 2. Political Principle: parliamentary sovereignty is not merely a legal principle but also a political one rooted in constitutional frameworks which cannot be amended by parliament itself. If Parliament’s authority were contingent on an enabling statute, it would undermine its sovereignty 3. Origin of Sovereignty: sovereignty cannot be derived from legal sources but is an ‘ultimate political fact’ originating from historical political settlement between Parliament, Crown + courts, particularly referencing the 1688 agreement. Political reality underpins courts’ acceptance of parliamentary sovereignty -> Wade concludes that alterations to parliamentary sovereignty could only occur via significant political shifts (revolution) where courts may realign their allegiance to a different sovereign authority as exemplified in 1649 and 1699. Therefore, his conception of parliamentary sovereignty is fundamentally based on political reality rather than legal authority, contrasting within other interpretations Jennings and Common Law -> Jennings proposes that the common law principle has evolved within UK constitution -> he emphasises that legislature’s power roots from law establishing it which in the UK (lacking written constitution) emerges from common law -> argues that parliament is sovereign as it has historically been recognised as such by courts who haven’t challenged parliamentary Acts’ validity -> claims that there are no common law principles which parliament cannot repeal + modern trend favours parliament’s supremacy over common law -> Jennings describes parliamentary sovereignty as legal concept reflecting relationship between Parliament + Courts suggesting that Parliament can alter its sovereign powers by changing common law rules that underpin its sovereignty Goldsworthy -> Conversely Goldsworthy critiques Jennings assertion that parliamentary sovereignty is a product of common law, arguing that it is primarily distinct from ordinary common law rules since it was neither created by judges nor can it be unilaterally reversed by them or parliament -> Contended that parliamentary sovereignty stems from a consensus among senior legal officials across government branches and is thus superior to Parliament itself -> emphasised that it wold be undemocratic for either the courts or parliament to unilaterally alter this doctrine as it may lead to undemocratic constitutional changes Albert Venn Dicey’s (1835-1922) conception of Parliamentary Sovereignty -> Dicey defines parliamentary sovereignty with 3 key points that mirror the orthodox principle’s essence : 1. Parliament can make/unmake any law regarding any matter (positive factor) 2. No individual/institution holds the pioneer to override/derogate from a parliamentary act (negative factor) 3. Parliament cannot be bound by its predecessors or bind its successors 1. Parliament can make any law on any subject matter -> Laws enacted by parliament are Acts of Parliament passed by HOC + HOL -> according to Dicey’s orthodox theory, particularly the positive limb, Parliament possesses authority to to create/repeal any law on any subject without legal restrictions. -> can even do so outside its jurisdiction presenting its extensive law-making powers Parliament changing itself -> parliament has ability to modify its composition and legislative procedure, a capability exercised on several occasions -> E.g. Parliament Act 1911 established new legislative process, later amended by the Parliament Act 1949, enabling HOC to enact laws without HOL approval if latter delays bill for over a year -> Despite this procedure being infrequently used, it serves as a vital mechanism for elected HOC to advance legislation obstructed by unelected HOL -> Constitutional validity of this procedure was examined in R (Jackson) v Attorney-General where appellants argued that Parliament Act 1911 formed a new process for delegated legislation, thus rendering laws enacted under this process as non-primacy legislation -> However, HOL dismissed this argument affirming validity of Acts passed under the Parliament Acts -> Lord Carswell noted that there is no constitutional principle preventing legislature from changing its own constitution via its own powers, provided these powers are derived from sufficient original authority -> HOL Act 1999 reformed HOL by crucially reducing number of Hereditary Peers and raising number of Life Peers Parliament and International Law -> Relationship between domestic parliamentary law + international law highlights the scope of parliament’s law-making powers, particularly in context of UK dualist legal system -> in a dualist state such as the UK, international treaties do not automatically become part of domestic law upon signing; they require incorporation by Parliament to have legal force -> E.g. the UK’s signing of the European Convention on Human Rights 1951 only became enforceable in UK courts after being incorporated via that Human Rights Act 1998. -> Parliamentary sovereignty concept underpins this relationship, emphasising that Parliament is the highest authority + that government actions like signing treaties do not bind parliament. -> E.g. Mortensen v Peters (1906): courts upheld domestic legislation over an international treaty, asserting that Parliamentary acts are supreme and must be enforced regardless of conflicting international agreements -> UK government exercises prerogative power to sign treaties but these don’t impose legal obligations domestically until Parliament enacts them into law -> contrastingly, in monist states, international and domestic law are treated as one Legislating with Extra-territorial Effect and Grants of Independence -> Jennings has suggested that Parliament holds legal authority to legislate on matters affecting areas outside the UK such as banning smoking in Paris -> he recognises that enforceability in French courts would restrict the law’s application -> parliament’s law-making power extends to enacting laws that impact individuals outside the UK as exemplified by numerous acts including the Sexual Offences Act 2003 where UK national/resident commits an act which constitutes a sexual offence if done in UK, then the individual is guilty -> other acts: the Canada Act 1982 and Australia Act 1986 transferred legislative powers from UK parliament to their respective dominions while the Statute of Westminster 1931 granted dominions freedom to legislate independently, barring any request for UK parliament involvement -> Despite Parliament’s theoretical ability to repeal these acts, doing so would conflict with political realities + established independence of these nations -> Judicial opinions like those from Privy Council + Lord Denning, emphasise that although parliament retains legal sovereignty, it is unlikely to exercise this power to revoke independence once granted 2. No Person Or Body May Question Parliament’s Enactment -> Negative limb of Dicey’s parliamentary sovereignty interpretation emphasises that no individual/institution, particularly courts, may question validity of Parliament Act, since doing so would undermine parliament’s authority. -> This raises 2 primary issues: substance of legislation + procedure for its passage Substance of Legislation -> Parliament has legal power to enact laws that may be considered outrageous, immoral, unethical or unconstitutional, as emphasised by judicial authority in cases such as Madzimbamuto v Lardner-Bruke -> Lord Reid highlighted that while specific actions by Parliament may be deemed unconstitutional in a moral sense, they remain within Parliament’s power + courts cannot invalidate such Acts. -> Dicey acknowledges that although Acts opposed to morality could be viewed as invalid, there is no legal basis for judges to overrule them as courts must treat all laws as valid -> Regardless, there are indications that courts may intervene in extreme cases. Lord Woolf suggested that there may be situations where courts may need to question legislation’s validity to uphold rule of law, referencing Anisminic Ltd v Foreign Compensation Commission and others where HOL maintained judicial review despite an ouster clause in legislation -> R (Jackson) v Attorney-General: Lord Steyn indicated that there may be circumstances where courts could reassess parliamentary sovereignty if it threatened judicial review -> AXA General Insurance Limited v Lord Advocate: Lord Hope suggested that the potential for a government to misuse its power, emphasising that judges must retain authority to reject extreme legislation that undermines rule of law. Therefore, while the negative limb of parliamentary sovereignty protects legislative authority, there are possible limits as suggested by judicial commentary and case law, implying that courts may uphold particular fundamental principles even against sovereign legislation Enrolled Bill Rule and Continued Judicial Obedience -> Enrolled Bill Rule: legal principle which prevents courts from challenging validity of legislation after it passed through HOC, HOL + received Royal Assent -> This rule (established in Edinburgh and Dalkeith Railway Company b Wauchope 1842) affirms that validity of Parliamentary Act can’t be challenged based on procedural issues during its passage. In this case, HOL ruled in Wauchope’s favour, asserting his right to claim payments for passenger transport was not negated by his previous claims for goods alone. Court emphasised that it can only verify whether a bill passed both houses + received Royal Assent without delving into legislative process details -> Enrolled Bill Rule has been reaffirmed in subsequent cases like Manuel v Attorney General and Pickin v British Railways Board, where courts reiterated their duty to apply Parliamentary Acts without challenging their validity or parliamentary process. Lord Reid, in Pickin noted the historical importance of parliamentary sovereignty, highlighting that courts cannot disregard an Act’s provisions on any grounds -> While Enrolled Bill Rule is a cornerstone of parliamentary sovereignty, suggestions indicate if Parliament were to overstep ethical boundaries, courts may be compelled to challenge Acts’ validity however currently, no institution can challenge parliament legislation’s validity 3. No Parliament is Bound By its Predecessors or Can Bind its Successors -> Although parliament is deemed sovereign, it experiences a key restriction: it cannot bind future Parliament or be bound by its predecessors -> Principle is vital as binding successors would limit their law-making capabilities, undermining their sovereignty -> Dicey notes that a Parliament cannot impose restrictions on further Parliament via any statute, ensuring their legislative freedom. -> Therefore, inability to bind succeeding Parliament crucial for maintaining legislature’s sovereignty. This principle is mainly enforced via doctrine of implied repeal. Implied Repeal: -> Repeal: process of revoking legislation which may occur via express/implied means. -> Express repeal: involves clear language in legislation that recognises and explicitly repeals previous laws as exemplified by Equality Act 2010, which lists statutes that are repealed. -> Implied repeal: occurs when a new Act conflicts + contradicts with an existing one, resulting in a conclusion that the newer legislation has implicitly revoked earlier law -> Principle is upheld by courts to ensure that Parliament’s latest intentions are respected, as no Parliament can bind its successors -> Key judicial support for implied repeal is exemplified in 2 cases: Vauxhall Estates v Liverpool Corporation and Ellen Street Estates Ltd v Minister of Health where the courts in both cases, determined that provisions in Housing Act 1925 conflicted with earlier Acquisition of Land Act 1919, leading to the conclusion that 1925 Act impliedly repealed 1919 Act. -> Courts stressed that Parliament cannot bind future Parliaments, reiterating doctrine of implied repeal -> If a new statute contradicts an existing one, it is understood that new law would imply the revocation of older law, even if not explicitly stated. Raises question of if courts should infer repeal when Parliament has not expressly repealed Act. -> This raises 2 competing theories; continuing sovereignty + self-embracing sovereignty Continuing Sovereignty: -> Concept within orthodox theory that affirms Parliament’s sovereignty is ongoing + continuous -> every time parliament convenes, it is not constrained by prior enactments + holds the unrestricted authority to enact any law -> However, it cannot bind future Parliaments, as emphasised by Dicey. Wade further explains that by highlighting the importance of implied repeal, arguing that no legislation is immune to being repealed implicitly. He asserts that Parliament cannot entrench legislation, as all laws are subject to repeal by ordinary Acts and it cannot bind its successors -> Wade’s perception of sovereignty is rooted in political settlement of 1688 + ongoing relationship between Parliament + Courts -> While Parliament can attempt enacting laws that bind future Parliaments, courts may not validate these laws. Therefore, continuing sovereignty aligns with orthodox theory, affirming that while Parliament has extensive legislative power, it cannot bind future legislative bodies Self-embracing Sovereignty -> Parliament can undo its sovereignty a) Parliament is reliant on common law for acknowledgement of its absolute power b) Parliament, as sovereign legislature, is superior to common law c) Parliament can therefore amend the common law rules determining its own sovereignty -> ‘Manner and form’ theory of sovereignty suggests that Parliament could establish rules for how it makes laws + can make it more challenging to change/repeal laws but correct ‘manner + form’ -> advocates of self-embracing sovereignty argue that Parliament can bind itself + entrenched legislation, challenging traditional views of parliamentary sovereignty. -> this view (supported by Jennings) posits that if Parliament is sovereign, it must have power to impose restrictions on itself including ability to enact laws which bind future parliaments. -> Entrenchment refers to mechanisms that protect specific laws from repeal like requiring a supermajority for amendments -> Foreign and Domestic Taxes Act (2027) mandates a 2/3 majority for repeal which raises questions regarding its validity under orthodox principle that Parliament cannot bind future Parliaments -> Wade argues that such a provisions is invalid as it tries to alter parliamentary sovereignty while Jennings argues that Parliament may redefine its sovereignty via its legislative power -> Attorney-General of New South Wales v Trethowan: Privy Council upheld a provision requiring a referendum for constitutional changes, demonstrating that legislative procedures can bind future Parliaments. However, this doesn’t directly apply to UK parliament as it hasn’t established entrenched provisions -> while self-embracing sovereignty presents an intriguing theoretical framework, its practical application is uncertain in UK since there are no precedents for Parliament binding itself in this sense UK Joining EU + Parliamentary Sovereignty -> UK joined EU on January 1st, 1973 -> UK enacted the European Communities Act 1972 facilitated incorporation of EU law into UK law. -> S 2(1) states that all ‘rights, powers, liabilities, obligations + restrictions’ emerging from treaties are automatically recognised in UK law without further enactment. This provision is dynamic, adapting to amendments in EU law. -> S 2(4) ‘any enactment passed or to be passed…shall be construed + have effect subject to the foregoing provisions of this section’, establishing EU law supremacy, ensuring UK legislation complies with current + future EU law -> S 3: English courts must follow CJEU decisions -> Referendum (5/6/1975): 67.2% in favour of UK European communities membership -> Mcarthy’s Ltd v Smith (1979) ICR 785: Courts of Appeal ruled that principle of equal pay Under Article 119 of the EEC Treaty had direct effect in UK law, prioritising EU law over domestic legislation -> Jackson v AG (2005) UKHL 56: ‘Doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants…’ ‘Parliament has…for the time being…limited its own powers by the European Communities Act 1972’ UK Leaving EU -> Article 50 Treaty on European Union 1992 ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’ -> Referendum (23/6/2016): 51.9% in favour of leaving EU -> R (on the application of HS2 Alliance Limited) v Secretary of State for Transport 2014 at (79), (203)- (205): clarified that EU law is incorporated into UK law only by virtue of provisions of UK law itself (via specific legal provisions set by Parliament) so EU law doesn’t automatically apply to UK as its application is dependent on UK legal framework which recognises + enforces it -> R (Miller) v Secretary of State for Exiting the European Union (2017) UKSC 5: only Parliament can remove rights produced by Acts of Parliament and government (executive) cannot trigger Article 50 without Parliament’s approval -> EU Withdrawal Act 2018 repealed European Communities Act -> EU Withdrawal Agreement Act 2020 marks the transition period Entrenchment: Manner and Form + Constitutional Statutes Manner and Form: -> Parliament is unable to bind its successors via entrenchment of legislation, yet it is required to adhere to standard procedures for enacting laws. (Jennings) -> Will of Parliament is only recognised as law when these formal rules are adhered to -> Logically, Parliament’s unrestricted legislative authority encompasses ability to modify its own lawmaking processes, raising questions regarding entrenchment Constitutional Statutes: -> Implied repeal concept challenges traditional notions of sovereignty, particularly in context of European Communities Act 1972 and its interaction with UK legislation -> Implied repeal indicates that if 2 laws conflict, newer law overrides earlier one -> Thoburn v Sunderland City Council (2002) EWHC Admin 195, (62)-(63): Weights + Measures Act 1985 was changed to comply with EU regulation, leading to convictions for using non-metric measurements. -> Defendants argued that 1985 Act, being enacted after ECA 1972, impliedly repealed its provisions. However, High Court + Court of Appeal dismissed this argument, affirming that constitutional statutes like ECA 1972 cannot be impliedly repealed + can only be expressly repealed -> Laws LJ highlighted the need to recognise hierarchy of Parliament Acts, differentiating between ‘ordinary’ + ‘constitutional’ statutes. He defined constitutional statutes as ones which shape the relationship between citizens + state or affect fundamental rights. ECA 1972 is considered a constitutional statue due to its significant impact on domestic law + its incorporation of EU rights + obligations Constitutional Statutes After HS2 and Miller I 1. ‘Fundamental statute’ e.g. Bill of Rights 1689 is immune from implied repeal + will prevail in a clash with constitutional statute 2. ‘Constitutional statute’ e.g. Human Rights Act 1998 is immune from implied repeal + will prevail in a clash with normal statute 3. ‘Normal statute’ e.g. Theft Act 1957 is not immune from implied repeal In context of an application by James Hugh Allister and others for Judicial review (Northern Ireland) (2023) UKSC 5 -> Act of Union (1800) guaranteed freedom of trade between UK + Ireland (now only Northern Ireland). Second Limb obliged that in all treaties Ireland would be on the ‘same footing’ as Great Britain -> Brexit: Northern Ireland Protocol imposed distinct conditions on trade between NI and UK -> Incorporated into UK law, through EU (withdrawal) Act 2018, s7A, with all legislation to be read as being subject to Withdrawal Agreement (including NI Protocol) -> Appellant questioned Protocol’s constitutionality + lawfulness, contending that it altered the constitutional status of NI within UK Rule of Law/Common Law: Jackson v AG (2005) UKHL 56 -> Lord Steyn (102): Principle of parliamentary sovereignty is ‘…a construct of the common law. The judges created this principle. If that so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism’ -> Lord Steyn (102): ‘in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ L4. Royal Prerogative The Crown; The Executive R (Miller) v Secretary of State for Exiting the European Union (2017) UKSC 5, (41) Lord Neuberger: -> ‘Originally, sovereignty was concentrated in Crown, subject to limitations which were ill-defined + which changed with practical exigencies. Crown largely exercised all powers of state…However, over centuries, prerogative powers (Royal Prerogative), were progressively reduced as Parliamentary democracy + rule of law developed -> ‘By end of 20th century, great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in 3 principle organs of state, legislature (2 Houses of Parliament), executive (ministers + government more generally) + judiciary (judges) Paul Craig & Adam Tomkins, ‘Introduction’ The Executive & Public Law (OUP 2005) 1.: -> ‘Executive power is power of governments. It is the legal authority vested in, + exercised by, e.g. prime ministers, presidents, cabinets, + councils. It is political power that all those who embark on a career in politics dream of wielding. It is the power to set policy, take action, + to implement law. In the great theory of separation of powers that has hovered over Western constitutional thinking since mid-eighteenth century, preserve of executive is to do. While role of legislature is to speak + that of judiciary is to judge, governments act’ The Crown- Executive Branch -> power of governing is vested in ‘the Crown’ -> monarch used to govern personally, but gradually, within legal concept of Crown, power of governing is exercised by Cabinet, ministers or government departments? -> Crown is accountable to Parliament for how it ‘governs’ -> ‘Crown is a convenient cover for ignorcance’ ( FW Maitiland (CUP 1908)) Sources of Power of the Crown Statute Law: Royal Prerogative: ‘Third Source’ -> Acts of Parliament -> Recognised by common law+ -> ‘RAM DOCTRINE’ Power to -> Delegated Legislation belonging to the Crown do what individuals can do -> Prerogative is part of common law so prerogative powers can thus be abolished, regulated or superseded by an Act of Parliament -> Prerogative powers are of a distinct nature to those provided by statute Scope of Prerogative Powers -> Prerogative reflects position of the Crown: ‘Special pre-eminence with the King hath, over + bore all other persons, + out of ordinary course of common law, in right of his Royal dignity…it can only be applied to those rights + capacities which King enjoys alone, in contradistinction to others’ (William Blackstone, Commentaries on te Law of England Volume I (first published 1765-69, OUP 2016) 155. -> Prerogative is part of common law: ‘King hath no prerogative, but that which law of land allows him’ (Case 0f Proclamations, 1611 12 Co Rep 74, Coke CJ) -> Prerogative as ‘residue’: ‘residue of discretionary or arbitrary authority, which at any given time is legally left in hands of Crown’ (AV Dicey, Introduction to the Study of the Cosntitution (8th end, first published 1915, Liberty Fund 1982) 282-283). -> No new Prerogative powers can be created: ‘It is 350 years + civil war too late for Queen’s courts to broaden prerogative. Limits within which executive government may impose obligations/restraints on citizens of UK without any statutory authority are now well settled + incapable of extension’ (BBC v Johns (1965) Ch 32, 79 (Diplock LJ)). -> No complete catalogue of prerogative powers: ‘government do not maintain list of public functions performed by Ministers otherwise than under statute…it would not be practicable to compile such a list’ (Viscount Cranbourne, written answer to the HOL, 1st February 1996) R v Secretary of State for the Home Department ex p Northumbria Police Authority (1989) QB 26 -> Home Secretary announced that baton rounds + CS gas would be available to police forces -> This would be directly available from Home Office, even if local police authority declined to use of baton rounds + CS gas -> Police authority questioned this -> ‘It has not at any stage in our history been practical to identify all of prerogative powers of Crown. It is only by piecemeal, decisions over a period of centuries that particular powers are seen to exist/not to exist’ (LJ Norse, at 56) -> Held: Prerogative includes power to keep the peace which has ‘never been questioned’ vague? Statute + Prerogative Powers Compared Statute Supersedes Prerogative -> Attorney General v De Keyser’s Royal Hotel (1920) AC 508 Hotel seized during WW1; Acting under regulations, compensation to pay Crown contended acting under prerogative- no compensation. Hotel owners challenged -> Lord Dunedin, at 528 ‘If the whole ground of something which could be done by prerogative is covered by statute, it is statute that rules’ Prerogative is said to be in ‘abeyance’ R (Miller) v Secretary of State for Exiting the European Union (2017) UKSC 4 -> government firstly intended to withdraw from EU by ‘triggering’ Art 50 TEU using the royal prerogative -> Supreme Court held that legislation was required -> ECA 1972 is the ‘conduit pipe’ by which EU law is introduced into UK domestic law. ‘So long as 1972 Act remains in force, its effect is to constitute EU law an independent + overriding source of domestic law’ at (65) -> Invoking Art 50 TEU , would inevitably mean that legal rights acquired via 1972 Act would be lost when UK left EU -> Triggering Art 50 TEU would remove EU law as source of UK law, + 1972 Act was an expression of Parliament’s approval of UK entry, giving effects to UK’s membership, ‘in a way which is consistent with the future exercise by ministers of any prerogative power to withdraw from such treaties’ at (77) -> Application of ‘frustration princple’ (R v Secretary of State for the Home Department, ex p Fire Brigades Union (1995) 2 AC 513 Ministerial Prerogative Powers -> Sovereign retains prerogative powers but, by constitutional convention, majority of these powers are exerted by, or on advice of, his or her responsible ministers, save in a few exceptional instances (‘reserve powers’) HM Government, The Cabinet Manual (1st edn, 2012 HM Government) para 6. Types of Prerogative Power King-in-Council? -> The Privy Council. Membership is for life By convention, all Cabinet Ministers are members of Privy Council. Meets in secret in presence of King -> Council meetings are occasions on which the Sovereign conveys formal approval to Order in Council’ (Cabinet Manual, para 1.15) form of primary legislation enacted under royal prerogative (similar to Acts of Parliament), or form of delegated legislation (passed under authority of an Act of Parliament) -> Once was very significant, now superseded by Cabinet Role Of ‘Advice’ -> For most of the King’s prerogatives + for all his statutory powers, king will act on ‘advice’ ‘Cardinal Convention’: the king always acts on advice of his ministers Ministers are accountable to Parliament for effect of advice they provide -> ‘Advice’: possibly misleading term because the advice is binding recognised in R (Miller) v Prime Minister (2019) UKSC 51 (30) ‘It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice’. -> Theoretically, if monarch rejected government’s advice, consequence would be government’s registration Warn, Counsel and Advice -> ‘sovereign has, under constitutional monarchy such as ours, three rights- right to be consulted, right to encourage, right to warn. And a king of great sense + sagacity would want no others’ Walter Bagehot, The English Constitution (2nd edn, Chapman & Hall 1876) 86 -> King meets PM for weekly audience No notes taken so discussion is unknown Personal Prerogative Powers Definition: ‘Personal discretionary powers that remain in the (king’s) hands’ (House of Common Puvlic Administration Committee, Taming the Prerogative (HC 422 2004-05) (5)) -> How these powers are exercised is regulated by constitutional convention -> Robert Blackburn, prefers ‘formal’ or ‘ceremonial’ powers to ‘personal’ ‘The Formal Powers of the Royal Head of State: Terminology, concepts, and Practice’, UK Const. L. Blog (23rd November 2023) -> Is there any discretion for the King? -> Powers include granting royal assent to legislation, appointment of PM + dissolution of Parliament Royal Assent to Legislation -> When a bill has been passed by HOC + HOL , it requires the King to grant the royal assent -> By convention, King will always grant assent by signing Letters Patent, which is then ‘signified’ before each House -> Last monarch to refuse assent was Queen Anne in 1708, who refused assent to Scottish Militia Bill (apparently on governmental advice) -> Can the King refuse to give assent? ‘The royal veto is as dead as Queen Anne’ (Asquith) ‘But the Queen has no such veto. She must sign her own death-warrant if the 2 houses unanimously send it up to her. It is a fiction of the past ascribe to her legislative power) (Bagehot) -> Could Government advise King to refuse royal assent? EU (withdrawal) (No 1) Act 2019 mandated that the government extend period for Brexit negotiations. This was despite government’s oppositions. Some argue that government could advise Queen to refuse consent Clash of 2 constitutional conventions? ‘Cardinal convention’, and convention that assent is always given -> Letter from constitutional experts to The Times, 3rd April 2019 ‘Any attempt to advise refusal to Royal Assent to a bill passed by Parliament would stand constitutional principle on its head. It would presume a governmental power to override Parliament, yet it is in Parliament, not Executive, that sovereignty resides. It would also give rise to a conflict between Parliament + Government into which the Queen would inescapably be drawn, compromising her position above political controversy’ Appointment of the Prime Minister -> PM is appointed by the King, exercising a personal prerogative power -> government must be able to command confidence of the HOC (Cabinet Manual, para 2.7) -> Leader of the party forming government is the appointed PM -> PM ‘hold office unless + until they resign’ (Cabinet Manual, para 2.8) -> ‘Recent examples suggest that previous PM have not offered their resignations until there was a situation in which clear advice could be given to the sovereign on who should be asked to form a government’ (Cabinet Manual, para 2.13) Other Circumstances -> ‘Hung’ Parliaments (when no one party has an overall majority of seats in HOC) -> ‘Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the HOC + should form the next government. The Sovereign would not expect to become involved in any negotiations’. (Cabinet Manual, para 2.13) -> Party leadership elections… -> Key point is that King does not actively make a choice Dissolution of Parliament -> Fixed-term Parliaments Act 2011 abolished this prerogative power, but it was ‘revived’ by Dissolution + Calling of Parliament Act 2022, S 2(1) -> Parliaments lasts for 5 years from date it meets. Can be ‘dissolved’ earlier by King at ‘request’ of PM, triggering a general election -> ‘in certain exceptional circumstances, the Sovereign could refuse to grant a dissolution’ -> ‘Lascelles Principles’, stem from letter to The Times, 29th April 19950 1. The existing Parliament was still vital, viable + capable of doing its job 2. General election would be detrimental to national economy 3. Another PM could be found who could carry on the government, for a reasonable period, with a working majority in HOC -> Boris Johnson in 2022…Officials war-gamed the scenario of him making an inappropriate request to dissolve parliament It was decided that Queen would be ‘unable to come to the phone’ (Sebastian Payne, The Downfall of Boris Johnson (Macmillan 2022) -> ‘Reserve powers exist to support + give effect to fundamental constitutional principles including responsible government, representative government, rule of law, + separation of powers…when considering exercise of a reserve power, head of state should…consider whether that action is consistent with, + supportive of, fundamental constitutional principles + how any conflict between those principles can best be resolved’ ( Anne Twomey, The Veiled Sceptre (CUP 2017) XXIII-XXIV Regulating the Exercise of Prerogative Powers Through: 1. Constitutional Conventions 2. Legislation 3. Courts via judicial review Legislation -> Prerogative power could be abolished by legislation -> Legislation can also regulate the way a prerogative power is exercised -> Ratification of treaties- Constitutional Reform and Governance Act 2010, S20 Ratification can only occur once treaty has been ‘laid’ before both HOC + HOL; For 21 sitting days, during which time, either House may pass a motion saying the Treaty should be ratified If HOC has passed a motion, then a Minister can lay a statement explaining why they still want Treaty to be ratified HOC then has a further 21 sitting days to pass a second motion stating that Treaty should still not be ratified if this second motion is not passed, then government can ratify the treaty The Courts -> Traditionally, courts considered that they lacked power to review exercise of prerogative- Hanratty v Lord Butler (1971) 115 SJ 286- No power to review whether Monarch was advised correctly in relation to prerogative of mercy -> However, Rv Criminal Injuries Compensation Board, ex p Lain (1967) 2 QB 864, Lord Parker CJ at 881. ‘I can see no reason, either in principle or in authority, why a board set up as this board was set up is not a body of persons amenable to jurisdiction of this court. True, it is not set up by statute, but the fact that it is set up by executive government, i.e., under prerogative, does not render its acts any the less lawful’ Judicial Review -> Council of the Civil Service Unions v Ministers of State for the Civil Service (1985) AC 374 Decision made under the royal prerogative to ban the staff at GCHQ from being members of a trade union Made without consultation; fear of threat to national security Trade Union made a challenge to this decision -> ‘I see no reason why simply because a decision making power is derived from common law + not from statutory source it should for that reason only be immune from judicial review’, Lord Diplock, at 410 -> GCHQ continued: But…not every prerogative power is subject to review by the courts: There are prerogative powers which raise non-justifiable issues due to their subject matter Making of treaties; Granting honours; appointment of ministers; deploying armed forces -> In this case, decision of Minister was justified by national security -> But this concept of non-justiciability of some prerogative powers is challenged by ‘Miller 2’ R (Miller) v Prime Minister (2019) UKSC 41 -> Challenge to Boris Johnson’s ‘not a normal’ prorogation of Parliament, in context of Brexit -> Power of prorogation, to ‘suspend’ parliament, ending 1 session, starting another. Long considered ‘just’ a formality -> (42) ‘the sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if executive could, through use of prerogative, prevent Parliament from exercising its legislative authority for as long as it please…An unlimited power of prorogation would therefore be incomplete with legal principle of Parliamentary sovereignty’ -> (34) ‘By ensuring that Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to separation of powers’. -> (46) ‘important to understand that this argument only arises if issue in these proceedings is properly characterised as one concerning lawfulness of exercise of a prerogative power within its lawful limits, rather than as one concerning lawful limits of the power + whether they have been exceeded. As we have explained, no question of justifiability, whether by reason of subject matter or otherwise, can arise in relation to whether the law recognises existence of a prerogative power, or in relation to its legal limits. Those are by definition questions of law. Under separation of powers, it is function of courts to determine them’ -> (50) ‘ (A) decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if prorogation has effect of frustrating/preventing without reasonable justification, ability of Parliament to carry out its constitutional functions as a legislature + as body responsible for supervision of executive. In such a situation, court will intervene if effect is sufficiently serious to justify such an exceptional course’ ->Note Dissolution and Calling of Parliament Act 2022, S3, courts may not question the ‘exercise’ or ‘purported exercise’, ‘any decision or purported decision’ or ‘limits or extent’ of revived power to dissolve Parliament Reform or Abolition of the Prerogative -> Rule of Law? Executive action under prerogative is not ‘as’ democratic as action approved by Parliament? Collection of arbitrary rules, contrary to rule of law? -> Ministry of Justice, The Governance of Britain, July 2007 (Cm 7170) (20) ‘in most modern democracies, government’s only powers are those granted to it by a written constitution or by legislature. Distinguishing feature of British constitution is the extent to which government continues to exercise a number of powers which were not granted to it by a written constitution, nor by Parliament, but are, rather, ancient prerogatives of the Crown. These Powers derive from arrangements which preceded the 1689 Declaration of Rights + have been accumulated by government without Parliament or people having a say’ -> Prerogative is increasingly being made a subject… to conviction; As in sending troops abroad To statutory regulation… 1. Either- via regulating how prerogative is to be exercised (as with ratification of treaties) 2. Or abolition of prerogative powers… -> Regulation by the courts? GCHQ case; R (Miller) v Prime Minister (2019) UKSC 41 -> Likely this approach will continue? L. 5 Central Government Historical Origins -> Historically, most significant minister advising monarch was Lord High Treasurer… -> Since 1714, position was placed in ‘commission’, meaning that it’s been carried out by appointed commissioners working together -> In 1721, Robert Walpole became the First Lord of the Treasury + during that time became known as ‘Prime Minister’ Especially after George II became in 1727 + authority of monarchs declined -> From this, system of Prime Minister, Cabinet, Ministers + government departments emerged -> This means that the office of Prime Minister is almost entirely regulated by convention + practice rather than law -> This applies to much of central government -> Emphasis on conventions rather than law Cabinet Manual Ministerial Code: (note, new version published on 6th November 2024) Can be unclear what the conventions are or how they apply in any particular circumstance Ministerial Responsibility What is Central Government? -> Refers to PM, Ministers, Cabinet, government departments + civil servants -> Commonly known as ‘Whitehall’ Prime Minister -> PM appointed by monarch, holds significant responsibilities in UK government, though monarch’s role is largely ceremonial -> PM is head of government, accountable to both Parliament + public, + must have seat in HOC -> ‘Personal’ royal prerogative power, appointed by King, on convention of being the MP who is best suited to command confidence of HOC -> Leader of party with a majority of seats (326+) in HOC -> “PM holds office until they resign” (Cabinet Manual, para 2.8). Subject to removal by their party Conservative Party leadership elections in 2015, 2017, 2019, 2022 (July); 2022 (October) King appoints winner of leadership contest -> ‘Primus inter pares” (first amongst equals) Powers of the Prime Minister -> Over time, role has evolved + while not clearly defined by statutes, PM’s powers are established via practice. Key responsibilities include: 1. Appointment + Dismissal of Ministers: PM appoints + dismisses ministers, overseeing government organisation + departmental leadership 2. Cabinet Leadership: PM determines Cabinet membership, sets its agenda + leads Cabinet meetings 3. Governmental + Civil Service Organisation: PM can restructure government departments + appoint senior civil servants, influencing government direction. 4. Constitutional Role: PM advises monarch (‘Cardinal convention’) + is responsible for government- monarch relationship. They also manage government’s relationship with devolved administrations. PM is also the Minister for the Union 5. National Security + Intelligence : PM oversees national security, appoints heads of intelligence agencies, + chairs National Security Council 6. Armed Forces: PM authorises military deployment including UK’s nuclear deterrent + in extreme cases, decisions such as drone strikes or military action 7. International Relations + Brexit: PM represents the UK in international forums + handles negotiation like Brexit process + UK’s ongoing relationship with EU. Commonwealth; NATO; G7 8. Crisis Management: PM leads government’s response to crises, convening meetings like COBR to coordinate responses 9. Covid; flooding 10. Public appointments: e.g. Chair of BBC, Governor of Bank of England; Bishops, appointment of Life Peers to HOL -> Honours -> PM’s role has expanded over decades Downfall of Prime Ministers -> PMs are enormously powerful, but their authority is political; dependent on: internal politics of their party size of their majority in HOC + support in the county (particularly as an election approaches) -> Example- Margaret Thatcher PM (1979-1990): She led Conservative Government who was very divided over UK’s EU membership. At same time, she introduced Poll Tax, a profoundly unfavourable policy. She lost popularity with public + within the Party so was under pressure to resign/effectively ousted by her cabinet. -> Example- Liz Truss PM (6/9/22-25/10/22): Introduced ‘mini-budget’, sent markets into chaos and immediately lost authority. Party leadership election: won the Members but only had support of 31.6% of Conservative MPs (Sunk 38.3%; Mordaunt 29.3%) Appointment of Cabinet Ministers -> PM tasked with forming a government -> Monarch formally appoints Ministers under royal prerogative on advise of PM who possesses practical power to hire/fire them -> Most Ministers are assigned to specific departments with Cabinet Ministers being most senior -> The Cabinet, chaired by PM includes all secretaries of state who head government departments -> There are 24 governmental departments + each are represented in Cabinet -> 2 Key departments are the Treasury, headed by Chancellor of Exchequer, which is the 2nd most vital minister following PM + Cabinet Minister which mainly supports PM + is headed by Cabinet Secretary, highest-ranking civil servant. -> Among ministers, certain positions are considered more prestigious, including Chancellor of the Exchequer, Foreign Secretary + Home Secretary, known as the ‘Great Offices of State’. Other roles like Leader of HOC + Leader of HOL, focus on facilitating government’s legislative agenda -> Some ministerial positions are sinecures- titles with little responsibility like Chancellor of the Duchy of Lancaster or Lord Privy Seal- offering PM’s flexibility in appointments while providing ministers with a salary -> although, PM appears to have free rein in appointments, choices are constrained by legal, conventional + political factors Legal Restrictions -> Ministerial + Other Salaries Act 1975: 109 ministers can receive a salary. Only 21 out of 109 can receive salary of Secretary of State -> HOC Disqualification Act 1975 s. 2(1): provided that 95 ministers can come from/sit in HOC -> Lord of Chancellor receives their own specific salary -> although more than 109 ministers may be appointed, further ministers must be unpaid Conventional Restrictions -> Ministers must come from HOC/HOL, ensuring link between executive + legislature + allowing government to be accountable to Parliament -> Most ministers are MP, reflecting dominance of HOC over HOL -> Ministers can be appointed without seat in either House but are generally given a seat in HOL soon after their appointment Political Restrictions -> limit PM’s ability to appoint ministers + Senior party figures often expect a Cabinet position based on their standing + experience -> PM must balance political views within their party when making appointments, ensuring representation of distinct factions, reflecting influence of party on PM’s decisions -> E.g. Gordon Brown became PM in 1997, his standing within Labour Party meant he was almost guaranteed position of Chancellor of the Exchequer. -> Similarly, Theresa May in 2016 had to balance political factions after EU referendum. Although she sought to put her own stamp on Cabinet by replacing figures like George Osborne, she had to ensure both ‘soft’ + ‘hard’ Brexit supporters were represented to maintain party unity. Failing to do so could’ve left 1/2 the party feeling alienated, particularly regarding Brexit -> Contrastingly, Boris Johnson in 2019 felt no such restrictions after becoming PM. He had campaigned for a ‘no deal’ Brexit during Conservative leadership contest + after winning, made Brexit support the key criterion for ministerial appointments which led to resignation of 6 ministers who opposed a ‘no deal’ Brexit. Johnson made sweeping changes to Cabinet, retaining only 3 minister from May’s team. -> Coalition Government 2010-2015, ministerial positions were divided ‘approximately in proportion the size of the two parliamentary parties’. 80% Conservative; 20% Liberal Democrat; with Nick Clegg as Deputy Prime Minister -> Labour Party Deputy leader is usually the Deputy PM; E.g. Angela Rayner Government Departments -> There are 24 government departments; e.g. HM Treasury, Home Office, Ministry of Justice; Ministry of Housing, Communities + Local Government; Department For Education; Department for Transport; Department for Health + Social Care; PM can change ‘machinery of government' -> Headed by a Secretary of State, with ‘Junior’ ministers, either Minister of State or Parliamentary Under Secretary of State -> Parliamentary Private Secretaries (PPS) are MPs who are unpaid ‘eyes + ears’ of ministers in parliament -> Secretaries of State also have ‘special advisors’ who are the ‘alter egos’ of Minister within the department Junior Ministers and Parliamentary Private Secretaries -> In a government department, most senior minister is Secretary of State who holds overall responsibility for department. -> Below them are junior ministers who are appointed as either Minister of State or Parliamentary Under Secretary of State, the latter being most junior role -> Junior ministers are assigned specific responsibilities within the department like Foreign Secretary who is supported by ministers responsible for policy in distinct regions, like Europe, the Americas, Asia, Middle East + Commonwealth -> Many ministers are also assisted by a parliamentary private secretary (PPS), an unpaid role where the PPS acts as the minister’s ‘eyes +ears’ in HOC, facilitating communication between ministers + backbench MPs. -> Although not part of government, PPSs are expected to vote with the government in Parliament, + serving as a PPS can lead to future junior ministerial positions Cabinet Reshuffles -> PMs periodically conduct Cabinet reshuffles, moving ministers between positions to align government with their vision, promote loyalty, + manage party factions -> E.g. David Cameron reshuffled his Cabinet after 2015 General Election + reshuffles may also occur after ministerial resignation. -> These reshuffles enables PM to adjust their government’s direction, but PMs are also influenced by their party’s political dynamics Tony Blair- Cabinet Reshuffles: -> Blair reshuffled his Cabinet regularly, often annually, but faced limitations with senior ministers like Gordon Brown, whom he couldn’t suck due to risk of deepening party divisions between the ‘Blairites’ + ‘Brownites’ -> Blair’s experience shows that political divisions can constrain a PM’s ability to act freely David Cameron- Cabinet Reshuffles: -> During Coalition Government (2010-2015) reshuffles were less frequent due to constrains of sharing power with Liberal Democrats -> Cameron had to maintain balance of Conservative + Liberal Democrat minister + could not ultimately remove Liberal Democrat ministers without Deputy PM’s approval. -> Cameron also expressed preference for stable Cabinet appointments, avoiding frequent reshuffles seen under Blair Theresa May- Cabinet Reshuffles: -> upon taking office in 2016, she had political space to reshape her Cabinet like by replacing George Osborne as Chancellor but after 2017 General Election which saw her lose her majority, her authority weakened. -> She couldn’t carry out a broad reshuffle/remove ministers like Philip Hammond who opposed her Brexit approach. -> inability to control her Cabinet’s direction contributed to numerous resignations + instability Boris Johnson- Cabinet Reshuffles: -> Johnson’s first full reshuffle came in September 2021, after criticism of some ministers like Gavin Williamson. -> Johnson’s approach to reshuffles appeared aimed at maintaining tight control over his cabinet, often preferring less experienced ministers who were less likely to challenge his authority -> Approach seen in Covid-19 where key decisions were made by small group of ministers -> Johnson’s attempt to consolidate power led to Sajid Javid’s resignation in 2020 after Johnson sought greater control over Treasury, replacing David with Rishi Sunak who later gained political prominence during Pandemic’s economic response -> CA: Margaret Thatcher’s ousting A ‘Deputy’ Prime Minister? -> Unlike many other government heads, PM does not have a designated deputy under UK Constitution which creates uncertainty in case where PM is unavailable. I.e. April 2020 where Boris Johnson was hospitalised with Covid-19. -> In instance, Johnson chose Dominic Raab, Foreign Secretary + First Secretary of State, to stand in for him. -> However, Raab did not assume role of ‘acting’ Prime Minister + key decisions, particularly related to pandemic response, were deferred until Johnson’s return. -> Title of First Secretary of State has historically been used for most senior Cabinet Minister after PM, but it is a sinecure title with no formal powers -> Deputy Prime Minister role is similarly flexible + reflects political considerations rather than a constitutional requirement. E.g. John Prescott served as First Secretary of State under Tony Blair, but Chancellor (Gordon Brown) would likely have deputised if needed, given his seniority in both substance + politics -> Cabinet has ultimate authority to choose a deputy if no prior selection has been made by PM. -> Thus, when Johnson was ill, no formal appointment of new PM was needed as Cabinet continued to govern -> Flexibility means that roles like First Secretary of State + Deputy Prime Minister reflects the political situation rather than creating it -> I.e. during 2021 reshuffle, Raab lost his position as Foreign Secretary and First Secretary of State, but was appointed Deputy Prime Minister, title that did not alter his demotion. -> absence of clear deputy structure highlights need PM designation of a stand-in, to clarify who would deputise if PMs becomes unavailable. Such a designation could be formalised in an updated Cabinet Manual. Role of Cabinet -> In 1918, Haldane Committee identified 3 key functions of Cabinet: 1. Determine policy to be presented to Parliament, 2. Controlling national executive to implement that policy, 3. Coordinating activities of various government departments -> Functions suggest that Cabinet is a collective decision-making body where ministers debate + work together -> Modern Cabinet Manual echoes this, describing Cabinet as ultimate decision-making body, where ministers collectively decide on policy. However, Cabinet Manual tones down language of Haldane Committee, notably by emphasising the PM, not Cabinet, now has supreme control over national executive Traditional Approach -> Cabinet government is a collective-decision making process distinct from a presidential system where a single leader makes decisions unilaterally -> Cabinet meets weekly to make significant decisions: Military action legislative priorities in Queen’s Speech Constitutional matters (e.g. monarchy, parliament reforms, devolution) Key domestic + international policy issues National emergencies including terrorism -> Below Cabinet, there are Cabinet Committees which are subcommittees tasked with relieving pressure on Cabinet by handling more specific issues -> These committees, formed by PM often consist of Cabinet + junior minsiters -> Decisions made in Cabinet committees have same authority as those made in full Cabinet Collective Responsibility -> Key principle of Cabinet government is collective responsibility, meaning all ministers must publicly support Cabinet decisions, even if they disagreed during discussions -> once decision is made, it is recorded in minutes + circulated to ministers -> Expectation is that ministers will not criticise these decisions publicly + will defend them when necessary -> This ensures unified government position to public + Parliament -> For principle to function effectively, Cabinet discussions are kept confidential Modern Practice -> Only function of Cabinet that remains valid today is final approval of policy + even this is increasingly happening outside the formal Cabinet structure -> Cabinet Manual reflects this shift, stating that it is up to incumbent government to decide how collective decision-making is organised -> In practice, especially during prime ministerships of Margaret Thatcher + Tony Blair, traditional Cabinet system was undermined -> Both leaders preferred to use informal, smaller groups outside Cabinet to develop policy, enabling more flexibility in decision-making -> these groups could be manipulated to ensure outcomes aligned with PM’s preferences, making them more effective at overcoming internal disagreement than full Cabinet -> Sidelining of Cabinet was evident under Thatcher as Nigel Lawson, her Chancellor, described Cabinet meetings as ‘restful’ + ‘relaxing’ since their role had become little more than to rubber- stamp decisions already made in smaller groups Tensions -> fundamental tension between role of No 10 at the centre + Secretaries of State + their departments All policy announcement must ‘go through’ No 10 (Ministerial Code, para 8.2); Treasury approval needed for expenditure -> In recent decades, PMs increasingly rely on their own advisors instead of Secretaries of State + Departments No 10 has around 25-30 special advisors; e.g. Nick Timothy, Fiona Hill, Dominic Cummings + Sue Gray have all become centre of controversies -> Myth of collective decision-making? -> Margaret Thatcher: often dominated Cabinet discussion, by starting discussions with her view -> Tony Blair: ‘Sofa government’; Gordon Brown a central figure on domestic policy -> Coalition government: ‘The quad’ (David Cameron (PM), George Osborne (Chancellor); Nick Clegg (DPM) + Danny Alexander (SoS Scotland) decided issues between Conservative + Lib Dems -> Boris Johnson: Referred to (by some) as ‘the shopping trolley’ for constantly changing direction Government Departments -> Government departments are headed by a Secretary of State + staffed by civil servants, who are politically impartial -> These departments derive legal powers from statute or royal prerogative, but there is no precise legal definition of government department -> Ministers in these departments develop + implement policies, often based on their party’s election manifesto, which provides mandate to pursue these policies -> Cases where new powers are conferred by state are usually given to Secretary of State, but in practice, relevant Secretary of Statute will exercise these powers. -> Day-to-day work of government is carried out by permanent civil servants who remain in post regardless of political changes -> Most Cabinet members head government departments, each responsible for specific policy areas. e.g. Education Secretary leads the Department for Education + oversees education policy. -> However, PM may intervene in affairs of a department, limiting autonomy of ministers in some cases. Reorganising Government Departments -> PM has royal prerogative organise the government + allocate functions between ministers, allowing changes without needing Parliament’s approval -> Power is limited by fact that only 21 ministers can receive salary of a Cabinet minister -> PM can use this power to restructure government departments based on their policy priorities -> 1998: Department of Health + Social Security was split into 2, creating Department of Health + Department of Social Security which later merged into Department for Work + Pensions in 2001 to align social security with employment policies -> September 2021: Boris further restructured departments, renaming Department for Communities + Local Government to Department for Levelling Up, Housing and Communities, reflecting his government's focus on economic growth outside London, especially in Northern England. He abolished Department for Exiting the EU after UK’s departure from EU + merged Department for International Development into Foreign, Commonwealth and Development Office to align international aid with foreign policy goals. -> decisions are politically driven + can cause disruption, as merging/creating departments risks losing expertise from original departments + requires time to establish new structures within Whitehall. Role of Government Departments -> Maintain operation of government according to law + existing policy Collecting taxes; paying out pensions + social security payments issuing passports, funding NHS, organising railways; road construction, etc. decisions are made in name of Secretary of State, vast majority made by civil servants on their behalf Carltona Doctrine, powers vested in Secretary of State are lawfully made by Civil servants (Carltona v Commissioners of Works (1943) 2 ALL ER 560 Changing policy (within scope of law) or developing new policy. E.g. The new government, within days of coming into office removed restrictions on developing onshore win by issuing policy statement policy will be driven by party of government who seeks to implement their manifesto that they put to country at last election if new policy requires legislation then government will introduce this into parliament civil servants will advise on development of policy Public (“Arms-Length”) Bodies -> Some functions are thought to be better if delivered ‘independently’ of a government department away from political interference sometimes derided as ‘Quango’ state question of accountability if one step removed from Ministers -> 295 Public Bodies 20 Non-ministerial departments (NMDs) 237 Non-Departmental Public Bodies (NDPBs) 38 executive agencies; -> Responsible for $295bn of public expenditure; -> employing 320,000 staff Accountability -> vital principle is that government is accountable for its actions, expenditure + policy -> Requires those holding power to explain + justify their conduct to those they are accountable to who can ask questions + judge those responsible -> This facilitates concept of ‘good government’ as explain by HOC Public Administration Select Committee, in Good Government (HC 2009-10, 97) Public Administration Committee, Good Government -> Good People: Right people are in the right positions to effectively deploy skills + abilities within central government -> Good Process: Good processes to ensure appropriate structures, systems + procedures for government to run smoothly to develop good policy, legislation, implementing policy. -> Good Accountability: Good arrangement to hold government including officials for their performance, decisions + actions; -> Good performance: Ensure that central government is meeting their objectives, + highlighting how improvements can be made -> Good Standards: High ethical standards are required to ensure trust + confidence in central government. Strong ethical regulation is needed to ensure ethical leadership to underpin high ethical standards Accountability Systems Political: Legal: Administrative: -> Ministers + civil -> Decisions of Central -> Ministers + civil servants servants are accountable government can be held to responsible for to public + parliament via account by individual implementation of policy + elections + parliamentary citizens before the court (via its performance + scrutiny judicial review) + tribunals effectiveness -> Accountable for overall -> Parliamentary committee -> Ensures government conduct of government, but inquiries or Ombudsman according to law, with especially policy + its investigations, can lead to unlawful decisions effects. Focus of rest of reforms in government or overturned/quashed this lecture compensation Political Accountability -> Accountability of government to Parliament is described as core constitutional principle by Supreme Court in R (Miller) v PM (2019) UKSC 41 -> Bobb v Manning (2006) UKPC 22 (13), Lord Bingham: ‘The conduct of government by a PM + Cabinet collectively responsible + accountable to Parliament lies at heart of Westminster democracy. The conduct of government by a PM + Cabinet collectively responsible + accountable to Parliament lies at the heart of Westminster democracy’ Collective (Cabinet) + Individual (Ministerial) Responsibility Collective Responsibility -> PM has overall responsibility for conduct of government; with the government as a whole being accountable to Parliament -> Collective responsibility: within government; all minister are free to express opinions on policy in private to parliament + the public: all ministers must defend government policy + conduct Covid Fraud: Lord Agnew resigned while speaking in HOL, frustrated with Government’s inability to tackle fraudulent loans made during Covid -> If a minister no longer feels that they can support government, they must resign 2009: resignation of James Purcell as part of an attempt to challenge Gordon Brown’s premiership. No one followed him, + so it petered out -> PM has ability to set collective responsibility aside: 1975: Cabinet split on membership of EEC 2011: Coalition split on electoral reform 2016: Cabinet split on Brexit referendums were held on all 3 issues -> Collective responsibility can be set aside on matters that are ‘free vote’ in HOC. Matters of conscience e.g. upcoming vote on Assisted Dying Bill currently before Parliament -> Realities of politics: leaking…’lifesaver of collective responsibility’ (Rodney Brazier, Constitutional Practice (3rd end, OUP 2009) 145 2016: when Theresa May warned against leaking, this was then leaked Andrew Lewer was sacked as minister, when he was discovered to be leaking to journalists Breakdown in Collective Responsibility? Collective Responsibility -> Brexit: Theresa May’s government suffered unprecedented numbers of resignations 10 ministers resigned because the government’s Brexit was too ‘hard’ Andrea Leadsom’s resignation letter. ‘the tolerance to those in Cabinet who have advocated policies contrary to the government’s position has led to a complete breakdown of collective responsibility’ -> Downfall of Boris Johnson: 29 government ministers, 25 parliamentary private secretaries + others resigned in little over 48 hours. Government could no longer funciton -> Starmer’s government (so far) appears more stable; bolstered by his majority Individual Responsibility -> Secretaries of State are primarily accountable to Parliament for their departments ‘Ministers have a duty to Parliament to account, + be held to account, for the policies, decisions + actions of their departments + agencies’, (Ministerial Code, para 1.6b) -> Major policy announcements should be made to Parliament first (Ministerial Code, Para 9.1) -> Minister must give ‘accurate + truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to PMs’ (Ministerial Code, Para 1.6c) e.g. resignations of John Profumo (1963); Amber Rudd (2017) When Ministers Resign? -> Failure within their departments: Lord Carrington’s resignation following Argentina’s invasion of their Falkland Islands in 1982 Kwasi Kwarteng resigned as Chancellor in 2022 when his ‘mini-budget’ bombed but did not save Liz Truss’s premiership -> Operational/Policy distinction: Maxwell-Fyfe principles: closer the failure is one of ‘policy’ as opposed to being ‘operational’ the more likely it is that minister should resign -> But politics is a key influence ‘whether a minister is forced to resign depends on three factors, on himself, his Prime Minister + his party’ (SE Finer, ‘The Individual eResponsibility of Ministers’ (1956) 34 Public Administration 377, 393) Chris Grayling did not resign after awarding a ferry contract to a company that did not have any ferries Gavin Williamson did not resign after ‘mutant algorithm’ malfunctioned when determining A-level marks during Covid Personal Conduct L 6. Parliament I: Democracy + Structure What is Parliament? -> Democratic, political centre of constitution -> Elections to parliament indirectly decide who forms government -> Gives government its political legitimacy to govern on basis that it enjoys confidence of HOC -> Representative function of MPs, representing their constituents + serving as national debating forum. E.g. current contention on assisted dying triggered by -> Government is accountable to Parliament -> Parliament enacts legislation -> Parliament consists of HOC, HOL + monarch so a two-chamber structure The ‘Life’ of a Parliament -> Life of parliament refers to period between elections or every parliamentary term -> Legally, parliament is not a permanent instiitution -> Parliament is rather summoned by monarch, existing until it has been dissolved -> Once dissolved, no parliament exists until a new one, summoned by monarch, meets again for first time -> Parliament is summoned by monarch to meet at Westminster on advice of PM Current parliament summoned to meet at Westminster from 9th July 2024 King/Queen’s Speech sets out government’s legislative agenda -> Dissolution + Calling of Parliament Act 2022, s4: ‘If not dissolved, earlier, Parliament will be dissolved. Five years after date Parliament has first met’ Means, existing Parliament will be dissolved 8th July 2029 -> When Parliament is dissolved, all seats are vacant + there are no MPs; dissolution triggers general election Dissolution of Parliament -> Fixed-term Parliaments Act 2011 was repealed by Dissolution + Calling of Parliament Act 2022 so royal prerogative power to dissolve Parliament has been ‘revived’. -> Prerogative power of dissolution: ‘The exercise of prerogative was, in practice, subject to constitutional conventions. E.g. The sovereign dissolved Parliament only when requested to do so by PM, + in certain exceptional circumstances , the Sovereign could refuse to grant a dissolution’ (Explanatory notes to 2022 Act, para 6) -> Parliament runs for 5 years maximum but is expected that PM requests monarch to dissolve parliament at some point during 5-year term. Often referred to as ‘calling of election’ where PM thinks it is politically best For their party e.g. 2001; 2005;…) or if government has lost confidence of HOC + PM decides to ‘go to the country’ as in 1979 -> ‘Request’ not ‘advice’: Accepted that king can refuse a request in exceptional circumstances -> Fixed-term of 5 years unless 66% of MPs voted on early general election or a vote of no confidence -> Monarch officially dissolves Parliament on date set by royal proclamations at Privy Council meeting -> General election is held 25 working days after dissolution, allowing a campaign period -> 2010-2015: Parliament ran for full 5-year term -> 2017: Parliament voted for early general election -> 2019: During Brexit negotiations, increasing pressure for an election but the 66% threshold was not met (on 3 occasions) Parliament then enacted Early Parliamentary General Election 2019, setting date for an early election in December 2019 Exercise of parliamentary sovereignty? Legislation only requires simple majority, overriding 66% requirement Prorogation: Sessions of Parliament -> ‘life’ of parliament is split into sessions; usually of around a year starting in May but practice varies -> Prorogation: power to ‘suspend’ parliament by ending 1 session of Parliament + setting date of start of next session -> this is prerogative power, exercised by monarch on advice of PM (R (Miller) v Prime Minister (2019) UKSC 41) -> Parliament stands prorogued during period between end of 1 session + start of another -> Each session begins with another State Opening of Parliament + Queen’s Speech which sets out government’s legislative agenda for next session -> Bill passing via legislative process must complete all its stages before session ends or it will be lost (unless ‘carried over’) + Bill would need to be reintroduced in following session -> Select Committees cannot meet when Parliament is prorogued -> Power to prorogue Parliament perceived as becoming a formality so typically annual sessions are held (sessions last 1 year) with approximately 1 week between end of one session + start of new one House of Commons- Elections -> HOC is dominant house within Parliament as it is elected so its capability to govern determined by its maintenance of confidence of House -> County is split into 650 constituencies which are each represented by 1 MP so HOC has 650 MPs Constituencies established by Boundary Commissions, operating under Parliamentary Constituencies Act 1986 -> First-past-the-post: An electoral system used to choose MP for constituency + is where registered voters in each constituency choose 1 candidate standing in their constituency they want to represent them. Candidate with most votes wins + granted a seat at Westminster. Operates under Representation of the People Act 1983 -> Candidates (usually) represent a particular political party so are likely to vote for candidate based on political party they’re representing rather than based on candidate’s characteristics -> this is due to voter’s choice of MP indirectly leads to their preference of government as government is typically established by Party that has highest # of seats in HOC The Electorate -> Electorate: refers to individuals entered onto register of constituency’s electors -> who can vote: 1. 18 years of age on polling day; 2. British, Commonwealth or citizens of Republic of Ireland ( all British citizens) -> Who cannot vote: 1. Individuals with mental incapacity 2. people held in mental health institutions 3. HOL members 4. Convicted criminal offenders who are detained in ‘penal institutions’ (e.g. prisons) (Hirst v the United Kingdom (No 2) (2005) ECHR 681); (R (Chester) v Secretary for Justice (2013) UKSC 63.) 5. Foreigners 6. British/Irish citizens that have been living overseas longer than 15 years Should 16/17 year olds vote? -> in Scotland, 16/17 y/o could vote in 2014 Scottish Independence Referendum + 2016 + 2017 Scottish Parliamentary Elections but not in 2017 + 2019 UK General Elections -> This led Labour + Liberal Democrats to propose allowing 16/17 y/o to vote in all UK elections. -> Supporters argue that if 16-17 y/o can marry, have sex + join military then they should have right to vote. -> Opponents believe 16 is too young + lack experience needed for informed decision-making 2024 General Election -> Government must be able to ‘command the confidence’ of HOC (Cabinet Manual, para 2.7) -> 326 seats required for an overall majority. Labour won with a majority of 174. -> As Rishi Sunak, PM of the Conserv

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