Constitutional Law PDF

Constitutional Law Introduction to constitutional Law NOTE: - The Parliament is the body that makes the law - The Executive is the body that executes the law - The Judiciary is the body of the government that interprets th...

Constitutional Law Introduction to constitutional Law NOTE: - The Parliament is the body that makes the law - The Executive is the body that executes the law - The Judiciary is the body of the government that interprets the law The Constitution is a set of laws, institutions, established to regulate government, and it is concerned with the relationship between government and the individual. (the definition of a constitution is very flexible) Constitutions constitute. Can constitute anything: - establish a type of state or political order - set limits to the state and to the exercise of power through institutions - has a symbolic function, telling the story of people. - Thomas Paine in his book The Rights of Man (1791), it “gives a country legal legitimacy”, for example to dictatorial regimes. Situations that lead to constitutions: a. Social and economic crisis b. Revolution. c. Regime collapse d. Defeat in War e. The creation of new nation during constitutional moment. f. Liberation from colonial rule. g. Constitutions could be evolutionary. Constitutionalism as a normative political doctrine has three pillars: - limits on state powers - separation of powers - rights Different types of constitutionalism = how to hold the government to account o Liberal Constitutionalism: Democracy, the free market/capitalism, equality and liberty of individuals, and private property. Periodic elections, separation of powers, and civil and political rights o Transformative constitutionalism: Transformation is a permanent ideal, it is about constantly changing the document to suit new circumstances; Adjudication is also political in nature o Political constitutionalism: The government power is restricted mainly by political processes, actors and Parliament. o Legal constitutionalism: by the law (legal rules) or by political rules, customs, conventions, traditions Features of the UK constitution o UNCODIFIED. o FLEXIBLE. o UNITARY STATE.  o MONARCHICAL. o PARLIAMENTARY. o DEMOCRATIC. Sources of the UK Constitution Key Constitutional principles in the UK 1. Parliamentary Sovereignty. 2. The Rule of Law. 3. The Separation of Powers. Law LJ’s examples of constitutional statutes (8) The Magna Carta 1215; The Bill of Rights 1689; The Act of Union 1707; The Reform Acts 1832 (which enlarged the franchise); The European Communities Act 1972. The Human Rights Act 1998; The Scotland Act 1998; The Government of Wales Act 1998; 4 sources of the UK Constitution 1. Parliament 2. Common Law 3. Conventions 4. Works of Authorities Constitutional Monarchy Case of Proclamations (1610) EWHC KB J22 defined some limitations on the royal prerogative at that time. Principally, it established that the monarch could make laws only through Parliament. Parliamentary Sovereignty British Railways Board v Pickin AC 765 Issue was P’s ownership of land beneath abandoned railway line/tracks. P claimed the land. P argued BRB had misled Parliament when it passed the British Railways Act 1968. Government is subject to the law Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884 HL held that a charge imposed by the ministry of food on a company to collect food in certain areas of the country was a tax and that the ministry had no right to impose it without the consent of parliament, under the Bill of Rights article 4. Common law and human rights A and others v Secretary of State for the Home Department UKHL 56 (Belmarsh Case) The ruling in this case was a landmark decision. The House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights – however the Home Secretary was not required to release the prisoners. Human Rights + asylum R (AAA & others) v Secretary of State for the Home Department UKSC 42 the Supreme Court unanimously dismissed the Home Secretary's appeal and held that Rwanda is not a safe country for the UK to send asylum seekers to for determination of their claims. Asylum = the protection granted by a state to someone who has left their home country as a political refugee. Constitutional conventions o Rules of good political behaviour. o To count as a convention, they must be generally accepted as ‘binding’. o Parallels with norms of social behaviour. o They usually develop from established constitutional practice. o They play a key role in the UK constitution + are usually obeyed. Some convention purposes: 1. Constitutional flexibility 2. Accountability 3. Good Governance Rationale for collective ministerial responsibility - In private, ministers disagree. - But in pubic they must be united, to demonstrate · Clear policy. · A common front. · A strong government. AG of Ontario v Information and Privacy Commissioner of Ontario and CBC (2024) Canada’s Supreme Court gave guidance on Cabinet confidentiality in 2024. ‘The convention of Cabinet confidentiality … promotes the efficiency of the collective decision-making process [and] promotes candour, solidarity, and efficiency, all in aid of effective government.’ ‘Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner’. Examples of conventions Ministerial Responsibility: Ministers are accountable to Parliament. Collective responsibility: Ministers should support government policy, even if privately they disagree. Judges will not criticise government policy. Ministers will not criticise judges for their individual decisions. Conventions and the Law Madzimbamuto v Lardner-Burke 1 AC 645 it was found that where an illegal regime creates legislation, these will be considered invalid and will not have the capacity to override the right of Parliament, who is the lawful sovereign, to create acts. In 1960s Zimbabwe was then called Rhodesia. It was a self-governing British colony. In 1965 its white minority Government, unilaterally declared its independence. Following this Unilateral Declaration of Independence (UDI), Rhodesia severed its links with the UK. UK regarded UDI as illegal. The appeal court for UK overseas territories is the Judicial Committee of the Privy Council. It held that a UK statute (Southern Rhodesia Act 1965) that rejected UDI took priority over a convention. This was even if the statute breached the convention that the UK should not legislate for a former colony which is now an independent state. Did the Sewel Convention give Scotland and NI a ‘veto’ over Brexit? – NO! R. (on the application of Miller) v Secretary of State for Exiting the European Union UKSC 5 Supreme Court: Those regions (Scotland and NI) which voted against Brexit could not require the UK Govt to get their approval before the UK left the EU. S.Ct: while Westminster would not normally legislate on devolved matters without the consent of the devolved authorities, it was not for the Court to police the scope of a constitutional convention. The principle The Courts may recognise the existence of conventions. But conventions are not formally legally binding. ** Breadth of Conventions - 4 examples. Conventions - found in many different areas. 1. Conventions regulate relations in Parliament between the 2 Chambers, the Commons and Lords. 2. Conventions regulate relations between the UK and former colonies. 3. Conventions guide the Monarch. 4. Conventions hold Govt to account. Reasons why Govt Ministers should resign Failure to do the job properly. Incompetence. Negligence. Inattention to detail. Laziness. Resignation from Ministerial Office is rare R (Miller) v The Prime Minister UKSC 41 S.Ct held that the PM’s advice to the Queen on the prorogation of Parliament was unlawful.The PM (Boris Johnson) didn’t resign. 3 reasons why Ministers should adhere to certain standards of propriety: Because Ministers have great power and influence. The symbolism of a Minister’s democratic mandate. The Ministerial Code sets out the standards of conduct expected of ministers and how they discharge their duties.. Ministerial Code – underpinning principles -- 7 principles of public life Committee on Standards in Public Life (1995) Selflessness Integrity Objectivity Accountability Openness Honesty Leadership Consequences of an uncodified constitution 1. UK constitution has evolved over time, rather than being planned or designed. 2. UK constitution is unclear (‘puzzling’). 3. UK constitution is flexible (ie., not fixed or entrenched). Arguments FOR a codified constitution 1. It would offer clarity and certainty. 2. Attract reverence and public loyalty. 3. Increased checks on the Executive (ie., government). 4. Could strengthen democracy. Arguments AGAINST a codification 1. A codified/written constitution does not necessarily protect human rights. 2. A codified constitution is difficult to amend, for it lacks flexibility. 3. Practical difficulties, including time and expense. 4. It would give judges too much power. USA - scope for judicial law making US Supreme Court may declare an act of Congress void if it is inconsistent with the Constitution Marbury v. Madison (1803) Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional. e.g., Racial segregation – unconstitutional Brown v. Board of Education of Topeka (1954) US Supreme Court held that racial segregation of children in schools was unconstitutional. Segregation contravened the ‘equal protection of the laws’ principle of the 14th Amendment. e.g., Right to same-sex marriage Obergefell v. Hodges (2015) US Supreme Court held that the Constitution guarantees the right to same-sex marriage. eg., Abortion Dobbs v. Jackson Women's Health Organization (2022) U.S. Supreme Court held that the US Constitution does notconfer a right to abortion. Reversed Roe v Wade (1973) As expected, both Roe and Casey were overturned (5–4) in the Court's official decision in Dobbs, issued in June 2022, in which Alito held that there is no constitutional right to abortion. Soon after the decision was handed down, several states adopted laws that drastically limited the availability of abortion. The Executive + Prerogative Powers The Executive: The executive is the branch of government responsible for implementing and enforcing laws. It includes the president, prime minister, or monarch (depending on the system), along with government ministers, agencies, and civil servants. The executive's main duties include making decisions on domestic and foreign policy, administering public services, and managing the government. The Prerogative Powers: Prerogative powers are special powers held by the executive (often the monarch or president) that are not granted by law but are traditionally recognized as inherent in the office. These powers can include things like issuing pardons, conducting foreign affairs, or declaring war. In modern democracies, prerogative powers are often exercised by elected leaders (e.g., the prime minister or president) on behalf of the crown or head of state. Egs of prerogative powers influenced by Conventions? 1. Royal Assent 2. Appointment of Prime Minister. 3. Dissolution of Parliament 4. Awarding of honours 5. Commander-in-chief of armed forces Potentially significant powers for the PM Royal Prerogative: Legal Controls The Courts can prevent prerogative powers from being misused A-G v De Keyser’s Royal Hotel AC 508 Claimants, owners of a London Hotel. Their hotel had been requisitioned under statutory powers (Defence Act 1842) during WW1 to house aircrew. They claimed compensation. The Govt cited the RP. Argued the duty to defend the realm, as per prerogative powers. Claimed this meant it had no obligation to compensate the claimants. The Courts will intervene if a Minister abuses a prerogative power R v Secretary of State ex parte Fire Brigades Union 2 All ER 244, HL The Fire Brigades Union brought this case, representing members who had been victims of violent crime. This case concerned the Criminal Justice Act 1988, which dealt with criminal injuries compensation. The Act, whilst having received the Royal Assent, wasn’t yet in force. Why? When can the Government use the prerogative to prorogue Parliament? Prorogation and the Miller II case R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland On 24 September, the eleven-justice panel of the Supreme Court ruled unanimously that the prerogative power of prorogation was justiciable and the ongoing prorogation of Parliament was both unlawful and void. Prorogation is the formal ending of a session of a parliament or legislative body by the head of state (like a monarch or president). It temporarily suspends all parliamentary business until the next session begins. It does not dissolve the parliament or trigger an election but halts the discussions and activities for a set period. Parliament: composition, nature, functions Parliament Highest legislative authority in the UK. Legislature – enacts Acts of Parl. Parliament: 3 Elements House of Commons House of Lords The “Crown in Parliament” (ie., the King, as the current hereditary monarch) The House of Commons · HC is the elected Chamber, composed of 650 MPs. · MPs from the Government sit on 1 side of the HC - Opposition MPs sit on the other. · Adversarial layout, with benches facing each other. House of Lords Members (‘Peers’) are appointed How does HL differ from HC? 1. Unelected 2. Less power than HC 3. Less ‘partisan’ than HC Monarch - integral part of Parliament The Monarch, alongside the Commons and Lords, is an integral part of the institution of Parliament. Three examples of Monarch’s role in Parliament 1. The Royal Assent 2. Monarch opens and dissolves Parliament 3. King’s Speech (previously the Queen’s Speech, during reign of Queen Elizabeth II) 4 Key functions of Parliament 1. Government formation 2. Financial procedures Congreve v Home Office 1 QB 629 Govt could not unilaterally increase cost of a TV license. Approval of Parliament needed. 3. Enactment of legislation 4. Scrutiny of Government Parliament: scrutiny of the Executive 5 Parliamentary checks on Govt Parliamentary Questions Parliamentary Debates Parliamentary Select Committees Other Parliamentary Committees House of Lords (covered later) Commons Select Committees: one for each government department. Lords Select Committees: Europe, science, economics, communications, the UK constitution and international relations. Joint Committees of Parliament: Members from both Houses meet and work as 1 committee. Wide range of issues examined by select committees Economy Public Health Defence Education Transport Immigration Drugs The House of Commons Criteria for becoming an MP and voting in General Elections Members of the Commons, MPs, are required by law to take an oath of allegiance to the Crown. There are several other rules about who can become an MP. 2 key criteria To stand as an MP you - must be at least 18 on the day you are nominated and on polling day AND - a UK citizen, or a citizen of a Commonwealth country, or of the Republic of Ireland. Categories of disqualification - Judges; - Civil Servants; - Members of the armed forces;  - Full Time Members of any Police Force; - Members of the legislatures of non‑Commonwealth Countries; - Members of certain commissions listed in the Act (eg., government-nominated directors of commercial companies). MP have Parliamentary Privilege: - Parliamentary privilege is a form of legal immunity. - It protects against civil or criminal liability for things said or done in Parliament. - It means MPs and Peers have privileges not given to ordinary people. Does Parliamentary Privilege offer criminal immunity for MPs? R v Chaytor and others UKSC 52, Supreme Court - 3 MPs (Chaytor, Morley and Devine) were charged with false accounting. - Charged under s.17, Theft Act 1968, in relation to their Parliamentary expenses claims. - They argued that Parliamentary Privilege meant they could not be put on trial for false accounting. To vote you must be … - At least 18 years old (You can register to vote at 16, but only vote at 18). - A Citizen of UK or Ireland or a 'qualifying' Commonwealth citizen’. - Subject to no legal incapacity. - Formally registered to vote in the constituency where you wish to vote. - Resident in a Parliamentary constituency. - (A UK citizen living abroad, who has been registered to vote in the UK in the last 15 years, can also vote). Eligible students can be deemed as resident to vote at their University of Leicester address: Fox v Stirk (1970) 2 QB 463 students could be registered at their term time addresses. Lord Widgery: ‘residence implies a degree of permanence.’ A person can have 2 residences, but may only have 1 vote ‘Resident’ has been widely defined: Hipperson and others v Electoral Registration Officer for the District of Newbury 1 QB 1060 - Members of a women's peace camp. - Protesting against nuclear weapons, at RAF Greenham Common in Berkshire. - Lived in cars/vans/tents. - They could be classified as being ‘resident’ in that area. The House of Lords 2 key functions of the HL - (i) Legislative It helps make law, as part of the legislature. - (ii) Scrutiny It helps to hold the executive (government) to account. Membership of the HL – 3 categories - Hereditary Peers (92): People who hold ancient ‘family’ titles – eg., Duke, Marquess, Earl, Viscount and Baron. - Lords Spiritual – 26: The 26 most senior Church of England Bishops. - Life Peers: Life Peerages Act 1958. Appointed only for life – ie., titles not passed on to their children. eg., Former politicians – also celebrities such as Ian Botham; Alan Sugar; Jeffrey Archer; Andrew Lloyd Webber (who retired in 2017). ‘money’ Bills HL cannot veto ‘money’ bills. HL can only delay them for one month. Money Bills – 1 month non-money Bills HL cannot veto ‘non-money’ bills. Can only, in effect, delay them for 1 year Non-money Bills – 1 year The Parliament Act 1911: removed from the HL the power to veto a non-money, Bill. Now the HL could only delay a Bill by up to 2 years. The Parliament Act 1949: further reduced the Lords' delaying powers to 1 year. Criticisms of HL? 1. Undemocratic 2. Socially Unrepresentative 3. Poor Attendance 4. Too many members 5. Appointment and PM discretion 6. No official retirement age 7. HL: a relic of a Christian past 8. Hereditary Peers – elitism + sexism 4 options for reforming the House of Lords 1. Simple abolition – no replacement 2. A fully appointed 2nd Chamber. 3. A fully elected 2nd Chamber. 4. A part elected, part appointed 2nd Chamber. Option 1. Simple Abolition Unicameral Parliament - Abandon a bicameral system, in which the legislature comprises 2 Houses. - Move to a unicameral system, so Parliament consists of only 1 Chamber or House. - A unicameral legislature would lessen checks on the UK Executive. - It would be inconsistent with best practice – - eg., US has a bicameral legislature, made up of the House of Representatives and the Senate. Option 2. A 2nd Chamber only by appointment Advantages of a wholly appointed 2nd chamber - Would be a reward for loyal service to the country. - Appointments could be made by an independent Commission. - Appointees would be chosen for their expertise and knowledge. - There could be quotas for a sizable number of women and minority groups. Problems with a wholly appointed 2nd Chamber - Appointment is the least democratic option. - Appointment is not very different from the current system. (eg., Life peers). - Terms of Appointment? Likely to be problematic: - Appointed for 5 years, 10 years, life? - Nature of appointments committee? OPTION 3: An 100% elected HL or 2nd Chamber Advantages of a wholly elected 2nd chamber - The most democratic option. - Would raise the profile of the 2nd Chamber. - Could lead to government being increasingly held to account. Problems with a wholly elected 2nd Chamber - What system of election? - When would 2nd Chamber (HL) elections be held? Same time as HC? - Would elected peers want more power? Conflict with HC? OPTION 4 – A Mixed Chamber Advantages of a mixed 2ND Chamber - The ideal compromise. - A balance between elected and appointed peers. - PM would retain powers of appointment while the public could also select members. Problems with a Mixed Chamber - What percentage should be elected and appointed? - There’s no agreement. - Eg., Members of a 2000 Royal Commission on reforming the HL could not agree as to how many of their proposed 2nd chamber should be elected.  A brief history of Parliament + Sovereignty Parliamentary Sovereignty (PS) Parliament can make and unmake any law Also known as Parliamentary supremacy Parliament possesses sovereignty as the representative of People HISTORY A brief history of Parliament 1 The Witan An Anglo-Saxon body Between 8th – 11th centuries Made up of leading political figures – powerful landowners Feudal in structure Could vote to approve a new King if the line of succession was unclear A brief history of Parliament 2 Magna Carta Signed in 1215 Brought about by a revolt by Barons (powerful feudal landowners or nobles) The Barons succeeded in forcing King John to sign Magna Carta But victory was short lived – John refused to be bound by the document after a year. A brief history of Parliament 3 Simon De Montfort and De Montfort’s Parliament Often held to be the origin of House of Lords Members drawn from all boroughs and shires of England Used as a decision-making body as the King had been defeated and captured in battle A word on Simon De Montfort… A brief history of Parliament 4 Civil war and Interregnum Charles I conducted 11 year personal rule without calling Parliament Lost English Civil War(s) to Parliament Beheaded in a public execution Oliver Cromwell ruled as Lord Protector Instrument of Government Restoration of monarchy under Charles II A brief history of Parliament 5 ‘Glorious’ Revolution William of Orange and his wife Mary (protestants) were ‘invited’ to take the throne William arrived with 20,000 soldiers Bill of Rights Triennial Act Act of Settlement A brief history of Parliament 6 Act of Union 1707 Creation of the United Kingdom Union of England (and Wales) and Scotland Required the dissolution of the historic national parliaments of England and Scotland THEORIES Theories of sovereignty 1 – Jean Bodin Bodin’s theory of sovereignty Bodin’s sovereign is above the law Sovereign power is centralised and unchallengeable Sovereignty is indivisible Divided sovereignty is destroyed The sovereign is not accountable to the people Theories of sovereignty 2 – Thomas Hobbes ‘Sovereign Hobbes’ theory of sovereignty Hobbes identifies the powers of ‘modern’ government: Legislative power to make law Executive power to govern Judicial power to interpret law Hobbes locates these powers in the sovereign – NOT separate branches of government Theories of sovereignty 3 – John Locke Locke’s theory of sovereignty Locke separates governmental power Power is taken from the executive (monarch) The legislative is empowered Judicial power? The legislative is the representative of the People Dicey’s theory of PS 1 Albert Venn Dicey Vinerian Professor of English Law Influential Constitutional Theorist of Victorian England Author of Introduction to the Study of the Law of the Constitution Dicey’s theory of PS 2 Dicey’s definition “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament […] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” What does this mean? Legislative power of parliament Parliament can pass or repeal any law The relationship between parliament and the courts The courts can’t challenge an Act of Parliament Dicey’s theory of PS 3 Are there any limits? Dicey recognises 2 limits on PS: Internal Social context External Popular resistance Dicey’s theory of PS 4 Limitations to Dicey’s thought Historical and social context the electoral franchise British Empire representation and parliament Manner and form theory 1 Ivor Jennings What is the manner and form theory? PS is a legal doctrine The People are sovereign (politically) Parliament is legislatively supreme Legislation is valid provided it is passed in the correct manner and takes on the correct form Manner and form theory 2 The sovereignty problem If Parliament is sovereign, can it legislate to limit its sovereignty? Entrenchment Wade’s development Sovereignty must be a political fact The relationship between Parliament and the courts What kind of sovereignty does Parliament have? self-embracing continuing What does Parliament say? “the term “Parliamentary sovereignty” bears a number of meanings which can get confused. We prefer the term the “legislative supremacy of Parliament” in this Report […] Dicey’s Law of the Constitution made famous the phrase ‘the sovereignty of Parliament’, but a more exact term for the legal doctrine in ‘legislative supremacy’, whereby the power of the Queen-in-Parliament to legislate is subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament. This doctrine is always considered to be subject to the limitation that Parliament is unable to bind its successors”. House of Commons European Scrutiny Committee Challenges of PS 1 Unlimited legislative power(?) Can sovereign power be used to bind sovereign power? EU membership Devolution Human Rights / ECHR Challenges of PS 2 Entrenchment What is entrenchment? Are all laws equal? Implied vs express repeal Constitutional statutes Parliament Acts and ‘money bills’ Manner and form theory Challenges of PS 3 Political vs legal constitutionalism Is Parliamentary sovereignty a legal doctrine? The product of an uncodified constitution? Does this really matter? PS legislative issues Legislative process Parliament Acts Are all Acts equal? Money Bills Entrenchment? Constitutional statutes Devolution Human Rights Constitutional statutes 1 A special status? Are all Acts of Parliament equal? Constitutional statutes Implied vs Express repeal Thoburn vs Allister Constitutional statutes 2 Examples Human Rights Act European Communities Act Acts of Union Devolution Acts Devolution UK Parliament (Westminster) created devolved Parliaments Scotland Act Wales Act Northern Ireland Act Issues Legislative competence Conferred and Reserved powers Sewell convention Legislative vs Executive power Continuity Bills Democracy Human Rights Human Rights Act 1998 S3 interpretive obligation S4 declaration of incompatibility International obligations vs domestic law Judicial challenges to Parliamentary sovereignty Jackson v AG UKHL 56 on PS In obiter some judges went quite far in speculating about the limits to PS The Rule of Law (RoL) may be superior to PS as a constitutional principle RoL is guarded by the judiciary The judiciary may challenge Parliament? Lord Steyn: PS is a common law doctrine created by judges (remember sources of PS) Lady Hale : the courts could safeguard against abuses of PS Lord Hope : courts can define limits to PS Differences of Judicial opinion – AXA AXA – the case AXA v Lord Advocate UKSC 46 A question on the competence of the Scottish Parliament More Obiter Relevance Lord Hope Revisits Jackson Lord Hope Lord Steyn Lady Hale Contrasts views on judicial limits Lord Bingham Lord Neuberger Miller no1 – PS vs Royal Prerogative R (Miller) v Secretary of State for Exiting the European Union [2017) UKSC 5 The main issue was about legal procedure for Brexit NOT about whether Brexit would happen! Was it a matter for the executive using prerogative powers? Was it a matter for Parliamentary legislation? Brexit would produce change in domestic legislation = legislative issue Miller no1 on PS Both the executive and legislative involved in joining the EU Executive negotiated membership treaty – through Royal Prerogative Membership only given life by legislative passing ECA as statute Acts of Parliament are superior to Prerogative powers (parliament over executive)  Brexit required changes to domestic law (ECA repealed) = Brexit had to be a legislative process Prerogative powers can’t be used to change statute Deja vu … Miller no2 R (Miller) v The Prime Minister UKSC 41 PM (Boris Johnson) advised the Queen to prorogue (suspend) Parliament Had Parliament been lawfully prorogued? Parliament is prorogued periodically Prorogation is a prerogative power By convention PM advises on prorogation PM is head of the executive branch; Parliament scrutinises executive actions Underlying question: was PM trying to avoid scrutiny? Miller no2 on PS A constitutional conundrum? Power to prorogue Parliament can’t be unlimited – must be subject to judicial scrutiny If prorogued Parliament can’t do anything to help itself! Unanimous decision An exercise of collaborative safeguarding? Brexit & devolution combined – Continuity Bills What is a continuity, Bill? Brexit required addressing a lot of EU law in domestic effect Some EU directly embedded into UK law; some EU added by Parliament Continuity Bills allowed for the continued function of retained EU law post Brexit What did the Bill do? A statutory power for (executive) ministers to revue AoP and amend them to edit EU law if needed Using a statutory power, not prerogative A challenge to PS? Remember the Sewell Convention – according to Miller no1 not justiciable The Continuity Bill Case 2018 Scottish Bill referred to UKSC s17 requirement for Scottish ministers consent to certain subordinate legislation The requirement would have applied to post Brexit legislative amendment Did this requirement challenge the legislative sovereignty of the UK Parliament? Devolution and PS – AG’s ref Scotland Act s28(7) – Westminster’s power s28(8) – Sewell convention s29 – (Scotland’s) legislative competence s32 – referral mechanism  The Human Rights Act 1998 (‘HRA’) The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law, allowing individuals to defend their rights in UK courts and ensuring public authorities respect fundamental freedoms like the right to life and freedom of expression. Domestic law (constitutional law) refers to the body of laws that govern the structure and operation of a country's government, including the rights of citizens and the powers of state institutions within that country. The ECHR (European Convention on Human Rights) is an international treaty established by the Council of Europe in 1950 to protect human rights and fundamental freedoms across its member states. It sets out a range of civil and political rights, such as the right to a fair trial, freedom of expression, and the prohibition of torture. The European Court of Human Rights in Strasbourg oversees its enforcement. The UK domestic model pre-HRA (1): emphasis on civil liberties The UK domestic model pre-HRA (2): certain Statutes offered protection The UK domestic model pre-HRA (3a): what of the ‘common law’? Common law is a system of law based on judicial decisions and precedents, rather than written statutes. It evolves through court rulings where judges interpret laws and apply them to individual cases. These decisions set precedents that guide future cases. Common law is used in many countries, including the UK and the US, and is distinct from civil law systems, which are based primarily on written codes. ‘common law’ rights protection/ ‘the principle of legality’ R v Secretary of State for the Home Department Ex parte Simms 2 AC 115 per Lord Hoffmann ‘In the absence of express language or necessary implication to the contrary the courts …presume that even the most general words [in legislation] were intended to be subject to the basic rights of the individual’ [Rationale]: ‘there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.’ [Implication]: ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon its exercise by Parliament are ultimately political, not legal... the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’ Before HRA – weakness of common law model Malone v Metropolitan Police Commissioner Ch 344 Phone ‘bugged’ by police – not illegal (virtually no regulation of this area under law)– no right to privacy under common law Malone v United Kingdom (1984, Strasbourg, E Ct HR ruling) See Article 8 of the Convention Interference with Art 8(1) was not ‘in accordance with the law’ [see Article 8(2)]. Subsequent change of the law in the UK: Interception of Communications Act 1985. The UK domestic model pre-HRA (4a): summing up so far The UK domestic model pre-HRA (4b): ‘lessons from Strasbourg’ Golder v UK, 1975 - Malone v UK, 1984 [see above] 1966-1998, UK respondent State in nearly 400 cases heard by Strasbourg Art 46(1) ECHR, UK bound to give effect to judgments at international law The UK domestic model pre-HRA (4c): where was the ECHR? Simply put, rights existed under the ECHR ‘at Strasbourg’ & by virtue of international law (so ECHR right not directly accessible in domestic law) The long journey to Strasbourg: delay – inefficiency-expense-UK courts did not give their (valuable and considered) views on [Convention rights aspects of] cases The UK domestic model pre-HRA (4d): ‘lessons from Strasbourg’ The Human Rights Act 1998 (‘HRA’) Sect 3 HRA – how far can you go? There must be some limits Sect 3(1) ‘so far as it is possible to do so… must…’ Hypothetical eg: imagine ‘Convention rights’ law states that you can vote at ’16’ yrs old – UK statute stipulates ’18’ yrs… Poplar Housing and Regeneration Community Association Ltd v Donoghue EWCA Civ 595 Lord Woolf: ‘76. The most difficult task which courts face is distinguishing between legislation and interpretation. … if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved”. Ghaidan v Godin-Mendoza UKHL 30 ‘Law Lords back gay tenant's rights’ (The Daily Telegraph, 22 June 2004 [paywall – no need to read]) Discussed in detail in E&T at pp767-770. Lord Nicholls para 1 of judgment “1. On the death of a protected tenant of a dwelling-house his or her surviving spouse, if then living in the house, becomes a statutory tenant by succession. But marriage is not essential for this purpose. A person who was living with the original tenant 'as his or her wife or husband' is treated as the spouse of the original tenant: see Rent Act 1977, Schedule 1, para 2(2). In Fitzpatrick v Sterling Housing Association Ltd 1 AC 27 [a pre-HRA case] your Lordships' House decided this provision did not include persons in a same-sex relationship. The question raised by this appeal is whether this reading of paragraph 2 can survive the coming into force of the Human Rights Act 1998.”. Post-HRA, could a ‘gay’ couple be statutory tenants? The human rights dimension to this case G-M had been in close and stable homosexual relationship: could the tenant (G-M) in his case be evicted by the landlord (Gh)? This would not occur if couple were of opposite sex. Art 8 and 14 issues arising (discrimination with respect to Art 8). See Baroness Hale at paras 130-132. Lord Nicholls para 5 etc Noted that an ‘ordinary reading’ of para 2(2) drew a distinction between heterosexual couple and homosexual couple. But that this would yield an outcome that was infringe Convention rights – why? So… what next? What can the Courts do under sect 3 HRA? “… interpretative obligation decreed by section 3 is of an unusual and far-reaching character... may require a court to depart from the unambiguous meaning the legislation would otherwise bear. … Section 3 may require the court to depart from … the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3” Where are the limits? “Parliament… cannot have intended that… the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed”. Lord Millett dissenting Issues in Ghaidan were for the legislature para 99 - “By what is claimed to be a process of interpretation of an existing statute framed in gender specific terms, and enacted at a time when homosexual relationships were not recognised by law, it is proposed to treat persons of the same sex living together as if they were living together as husband and wife and then to treat such persons as if they were lawfully married… …all these questions are essentially questions of social policy which should be left to Parliament... [para 101] R (Wilkinson) v IRC UKHL 30, per Lord Hoffmann : “It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights”. Remember, now, John Major’s 1996 position… – Independent Human Rights Act Review (terms of reference did not include the possibility of replacing the HRA!) – Ministry of Justice ‘Consultation’ [led by D Raab (wanted to ‘overhaul’ HRA – in fact, replace HRA: create a new, ‘Modern Bill of Rights’? (Raab has now resigned from office – so looks like Bill of Rights Bill [‘BoRB’] will not become law) [see E&T at p 43, and next slide]