INTRODUCTION TO THE UK PUBLIC LAW

CHAPTER 1 : THE UK CONSTITUTION

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(Lectures 1-3 : The unique nature of the UK Constitution)

SECTION 1 : PRESENTATION OF THE UNITED KINGDOM

The United Kingdom of Great Britain and Northern Ireland is composed of England, Wales,
Scotland and Northern Ireland.

The UK is a Constitutional Monarchy and Parliamentary Regime :

- Constitutional Monarchy :(Queen Elizabeth since 1952) ruled by King Charles III
since the 8th of September 2022. The coronation of King Charles took place on the 6th
of May 2023. The current prime minister is Keir Starmer, he has been since the 5th of
July 2024. It is a labor government that is in place at the moment.

- Parliamentary Regime : The government needs the support of the majority the
House of Common. The UK Parliament sits in the Palace of Westminster and is
composed of 2 chambers (bicameral) :
 House of Commons (elected chamber)
 House of Lords (non-elected chamber). Changing the House of Lords into an elected
chamber would be difficult because it would change the balance of powers. At the
moment the House of Lords remain an unelected chamber.

The UK was a member of the EU (1973-2020)

The Brexit is the name given to the process of the UK leaving the EU (23 June 2016 :
referendum).
In the referendum that was made that concerned Brexit, there was an opposition between
the various nations that composes the UK:
 There was a majority of voters in England and Wales that were in favor of leaving
the EU : 53.4% in England, and 52.5% in Wales.
 But in Scotland (62%) and in Northern Ireland (55,8%), a majority voted in favor of
remaining within the EU.

After the referendum on Brexit, in Scotland, the idea of a 2nd referendum to leave the UK
appeared. Tensions between Scotland and the central government appeared, and Scotland’s
government put forward against the idea of a referendum for the independence of Scotland.
The Scottish government doesn’t have the power to organize a referendum, the devolution
didn’t go this far.

The UK is a founding member of the Council of Europe (1949-...), and a Contracting Party to
the European
Court of Human Rights (1951-...).
The UK still is a member of the Council and still a party to the ECHR. The Brexit had nothing to
do with the
two institutions.
However, being a party to the European Convention has an impact on public law.
The ECHR has been a regular target of the UK government, they regularly talked about
leaving the Convention, and/or repealing the Human Rights Act.
The UK is a dualist state, which means that international law only takes effect in the UK if
there is a
Parliamentary Act that states it.

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SECTION 2 : DEFINITION OF CONSTITUTION AND COMPLEXITY IN THE UK

I. Definition of a Constitution

Things are not simple in UK constitutional law due to several specificities : the lack of codified
Constitution.
But that doesn’t mean that the UK don’t have a C°.

The word Constitution can have 2 different definitions :

 Broad definition (c° with a small c): centered on the substance, the content of the c°.
It’s the rules that can be considered of a constitutional matter.
A constitution is “the set of the most important rules that regulate the relations between the
different parts of the government of a given country and also the relations between the
different parts of the government and the people of the country”, (A. King, 2001).

- The constitution identifies and regulates the relations between the Executive power, the
Legislative power and the Judiciary one.

- It also regulates the relations between the central and local levels of government. Indeed,
the UK has a devolution process for some areas (Scotland, Wales, …) that needs to be
regulated. The main powers stay in the central institutions and the local institutions are not
supreme. They must respect the devolution acts and the central institutions. The constitution
defines the structure of the state.

- Rules regulate the relations between the different parts of the government and the people of
the country. These rules aim at protecting human rights. We have for instance the Human
Rights Act of 1998 which was an act to incorporate within the UK some of the Rights of the
ECHR. In order for international law to take order in the intern system, there must be a
parliament’s act. People couldn’t use the European rights if it wasn’t transcribed by the
parliament.

 Narrow definition (C° with a capital C) : its focused on the form of the rules and their
legal status. The codified Constitution contains constitutional rules written in a single
document which enjoys a particular legal status. In countries with a codified Constitution, not
all constitutional rules are gathered.

The UK has an un-codified Constitution. There isn’t a capital C Constitution in the UK. →
Not having a codified Constitution means that certain limitations, that we can find in the
codified Constitution countries, aren’t found in the UK.

II. Characteristics of a codified Constitution

A. Ridley’s characteristics

There are 4 characteristics identified by Ridley to identify a codified constitution :

-Prior to the system of governments, it establishes : the C° is there to establish the

organization of the state and is prior to the system established. Very often, the need for a C°
appears when there is an historical break which requires the reorganization of the state (war,
independence, revolution, …).
Ex : USA, after the War of independence in 1787; France, after the Revolution in 1789 ; the
German basic Law of 1949 after the WWII…
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-Involves an authority outside and above the order it establishes : it is generally a
constituent power that establishes the Constitution. The power may take different forms :
group of experts, assembly, …

-Superior to other legal norms : courts are entitled to strike down inferior norms not
compatible with the C°. The C° is the most superior law of all the legal norms according to
Hans Kelsen’s pyramid of norms. To be valid, inferior norms must be compatible with superior
norms, with the C° at the top. Therefore, there must be a system of constitutional revue
(contrôle constitutionnel) to control the superiority of the C°.
Ex : Marbury v Madison, 1803 : Chief Justice Marshall « Between these alternatives there is no
middle ground. The Constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it... If the former part of the alternative be
true, then a legislative act contrary to the Constitution is not law; if the latter part be true,
then written Constitutions are absurd attempts on the part of the people to limit a power in its
own nature illimitable ».
The control must be given to courts rather than another body such as the Parliament because
the body must be independent (separation of powers). The constitutional review can be
undemocratic due to multiple factors :
-Risk of judicial activism
-Difference between the will of people expressed in the C° and the will of Parliament
-Difference between the constituent power and the institutions it established.

-Entrenched (enraciné) : amendments to the Constitution requires a specific procedure to be

followed, and it is more complex than ordinary legislative procedure. The goal is to protect the
rules preserved by the C°. Codified C° are usually strict, entrenched. Sometimes, rules of the
C° cannot be amended (dignity, the form of the state, …). The purpose is to protect the
fundamental rules contained in the C° from being too easily amended.

B. Comparison with the UK’s Constitution

Does the UK have a C° ?

Yes : The UK doesn’t have a codified C° but a broad view of the c°. This is the orthodox view :
« Even today, it is often said that the UK has no constitution...That is wrong. Our
constitutional foundations are deeply rooted and well-established, although it is right to say
that they are not set out in any single document » (Jowell and Oliver).
The UK’s C° is uncodified : « It is of course also constitution is unwritten. It is not
codified...but a great deal of its content is based on written sources, including many statutes
and decided cases...and in ‘soft law’ documents such as the newly drafted Cabinet Manual of
2011...Constitutional conventions...also form important parts of the system of government.
The British constitution is therefore a patchwork constitution, but a constitution nonetheless »
- Jowell and Oliver, The changing Constitution, 2011.

In order to have a comprehensive view of the UK Constitution, one has to look for
constitutional rules, Acts of parliaments etc…

Comparison to the Ridley’s criteria :

-Prior to the system of government it creates : is the constitution made by an external
constituent power in the UK ? : NO, not respected because it was not necessary, no need for a
fresh start. None of the political events of the UK history were considered relevant enough to
cause the establishment of a whole new c° (ex : RF rend necessaire nouvelle C° mais aucun
évènement au RU).

The UK Constitution is the result of an evolution of government, an evolution as opposed to

a revolution. « The British c° has not been made but has grown » (Sir Ivor Jennings, 1959, The
Law and the Constitution).
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-Superior to other norms? :

The fact is that Constitution is superior to ordinary law. It is not the case for the UK, at the top
of the hierarchy are the Acts of the UK Parliament, the content of which could be
considered as having a constitutional nature, importance are formally identical to other Acts
of Parliament, they are at the same level. All Acts of Parliament are formally identical in
the hierarchy.

According to the Laws Justice Law theory on constitutional statutes that is widely
endorsed, constitutional statutes are different from ordinary statutes, in the sense that
constitutional statutes cannot be called ordinary.
The conflicting provision in the previous acts are impliedly repealed by the most recent Acts
and, because of the supremacy of Parliament, the most recent Act of Parliament must
prevail.

→ Express repeal occurs where express words are used in a statute to repeal an earlier
statute. They are now usually included in a table in a schedule to the statute, for reasons of
convenience. → The doctrine of implied repeal is a concept in constitutional theory which
states that where an Act of Parliament or an Act of Congress (or of some other legislature)
conflicts with an earlier one, the later Act takes precedence, and the conflicting parts of
the earlier Act become legally inoperable.
This doctrine is expressed in the Latin phrase leges posteriores priores contrarias
abrogant or « lex posterior derogat priori ».

If Parliament wants to repeal what is called constitutional statute, it must use express words,
it must be clear from the wording of the law that it is the intent of the Parliament.
Formally, Acts of Parliament are all the same, whatever is the content.

The House of Lords Constitution committee published a report in 2011 were it criticized
the lack of consistent process for constitutional change. The government does not need to
particularly follow this procedure, the government is going to have a wide paper, write a drive
bill etc… and sometimes he will not. The government answered to the committee’s report
and, in September of 2011, published its answer : said it was interesting, but still refuted
the idea that a special procedure should apply to all constitutional legislation, and said it : « is
intrinsic in the United Kingdom’s constitutional arrangements that we do not have special
procedures for dealing with constitutional reform »
That confirms the lack of entrenchment, even for constitutional statutes or constitutional
legislation.

Recently, the labor party organized a commission on the UK’s future and published a
report with some proposals and tackled certain constitutional issues, including a proposal
for a form of entrenchment. This was connected to the evolution of the House of Lords
because the labor party said they wanted to reform it and would want to replace it by an
Assembly of the nations and the regions. They want to give this assembly a power of
veto to block the House of Commons in certain decisions.
For one thing, which is legislation trying to expend the life of parliament beyond 5 years,
there is no power of definite veto granted to the House of Lords that will be given.
There is no specific procedure that can pass constitutional legislation.

Parliamentary supremacy : UK courts cannot strike down legislative Acts of parliament,

which could be considered as incompatible with constitutional principles. This is due to
the principle of parliamentary supremacy; no courts can question the validity of an act of
parliament.

→ Forth coming lectures… : How did judges in the UK gain power of control in the
legislation ?
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Under the HRA, in this Act of parliaments, two sections are important, the third and the
fourth. In the fourth, there is declaration of incompatibility that says that if a court in a
case considered that a legislative provision is incompatible with a Convention right, it may
make a declaration of incompatibility, but it does not affect the validity continuing operation
or enforcement of the provision in respect of which it is given. It is not as strong as a duty to
misapply.
It is still not striking down legislation, nevertheless it is an example of how parliamentary
supremacy has evolved under the influence of EU Law.

III. Particularities of the UK’s Constitution

The UK Constitution is flexible, constitutional amendment is not different from ordinary

procedure, and every Act of parliament can be repealed by another Act.
We can see an example of the Law’s LJ theory on constitutional statues and the doctrine of
implied repeal in:
⁃ The Thoburn v Sunderland City Council case from 2002. Thoburn v Sunderland City
Council (also known as the "Metric Martyrs case") is a UK constitutional and administrative law
case, concerning the interaction of EU law and an Act of Parliament. It is important for its
recognition of the supremacy of EU law and the basis for that recognition.
⁃ The H v Lord advocate case from 2012, and what Lord Hope said.
⁃ The Re Allister case from 2023. The Supreme Court judgment in Re Allister et al. [2023]
UKSC 5 is a simple and useful illustration of the supremacy of the Crown in Parliament.

Acts of parliament of constitutional importance can be repealed by another Act of Parliament.

We can observe examples provided by the Brexit process.

→ What are the strengths and weaknesses of the UK constitution ? :

The strengths :
- The fluidity and the flexibility that is due to the lack of entrenchment, because the
Acts of parliament are all the same level, they can be changed easily and quickly.
- The adaptability to changing circumstances : normally able to do this more quickly
and easily than in a country with a codified Constitution. An uncodified Constitution,
such as the one in the UK, relies on political and democratic principles to ensure
responsible government.
The UK is one of the oldest democracies in the world. If one compares the situation of the UK
with the European situation in the past, the European has less experience. One might
consider that what comes at the end of the day is you have deeply rooted a belief about
limited government, about codified rights etc… Having deeply unrooted compliance of
democracy is more important than having a codified Constitution. This is why we sometimes
talk about the UK constitution as a political constitution, we can nowadays say it is a hybrid
Constitution, but the political part remains important.

The weaknesses : because the constitution is not superior to all the norms, no rule is
protected against changes brought by the parliament, no rule is protected against
repeal including fundamental rules

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IV. Opinions

What’s best ?
 According to Ridley: the best constitution is a codified one

Despite that, the UK has an uncodified constitution and there is no need for a change. If one
decides to write down the constitution, one must be ready to confront some constitutional
issues that might be controversial.

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Deciding to codify its constitution would mean to identify which constitutional rules must be
included in the document and it's quite difficult concerning the constitutional conventions, as
they're not written and aren't legal rules yet are absolutely fundamental in order to
understand the UK constitution: the problem is that it could change their nature.

Besides, there are also other issues in the feud (quarrel) or constitutional law. It’s been a few
years since constitutional experts think about modifying the UK constitution and some of
them consider it possible and desirable because there are many written sources when it
comes to constitutional law : more and more statutes are enacted with a constitutional
importance. Therefore, it doesn't seem to be a big step for the experts to write a C° based on
those statutes already available.

Examples :
- Attempts are made by academics and independent organizations such as the Institute
for public research of 1991 that is involved in codifying the UK Constitution.
 This clearly shows that although it's difficult, it's possible.
- The House of Commons Select Committee on Political and Constitutional Reform
started an inquiry (asking questions in order to gather or collect information) in 2010.

The Magna Carta: the most famous constitutional document in England’s history celebrated
its 800 years and the inquiry was about having a new one.

The report puts forward the arguments of joining the “democratic family” of those with a
codified constitution. There was a second inquiry that was about the role of the judiciary in
the separation of powers if the UK decided to have a codified constitution.

The strongest argument against the codification of the constitution is about the
encroachment (empiètement) it could represent to Parliamentary supremacy.

There's a separation between those who:

- Consider the codification possible and necessary as it would in the sense of
democratizing the country evenly, with a stronger protection of human rights.
- Say it's rather un-British and therefore unnecessary as it won't guarantee a greater
stability, that entrenchment doesn’t prevent from amendments and when it comes to
time of crisis, in countries with a codified constitution, there is no protection of human
rights. A simple text won't protect democracy and it’s somehow true that these codified
constitutions are repealed and replaced by a new one when there's an impacting event.
The judiciary does not exceed what is known in the 4 th section of the HRA. A soft
system of constitutional review could be implemented but it's feared by those who
think the Constitution shouldn't be codified.

SECTION 3 : THE SOURCES OF THE UK CONSTITUTION

(Lectures 4-9: The sources of the UK Constitution)

In countries with codified Constitution, the main source of law is the text of the Constitution
but despite that:
 Other sources are important as well

In countries with uncodified Constitution things are different.

- Constitutional rules are not located in one single text, and one needs to look for
constitutional rules in the variety of sources, which makes everything a lot more
complex
Lord Scarman in Why Britain needs a written Constitution, 1992 said: « Today, our
constitution is not “unwritten” but hidden and difficult to find »

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In fact, some of the constitutional rules are found in written legal sources while others are not,
Example: constitutional conventions

Among the sources of constitutional rules, there is:

- Legislation :
Constitutional statutes of constitutional importance. It also includes the EU legislation as long
as the ECA remains into force. Besides, the Charter of fundamental rights can be concerned
as well.

- Case law :
Cases of UK courts but also the ones of the ECJ and the ECHR. These cases are important in
order to interpret the EU legislation when it comes to the ECJ or the ECHR. UK Courts are
bound to follow the ones of the ECJ (it has the last word) and when it comes to the HRA, the
judges have to consider the cases of the ECHR.

- Law and custom of the Parliament and Constitutional conventions :

They're unwritten yet fundamental in order to understand how the UK law functions. They’re
very important because they fill the gap that may be left by constitutional law.

I. Legislation

There's the primary legislation and secondary legislation as well as the EU legislation as
far as constitutional rules are concerned.
 It doesn’t mean that all these legislations are a source of constitutional law, but we can
find norms of constitutional importance in them.

A. Primary legislation

These are the AOP, considered to be constitutional statutes as long as they have matters.
Example : acts related to the relation between the state and citizens, the composition and
working of Parliament, the structure of the UK, of local Government, the voting system,
elections and franchise, civil liberties and human rights, the Monarch and the Royal
Prerogative, the judicial system

The problem with the UK Constitution is that you can’t distinguish these constitutional acts
with ordinary acts because both of them are enacted following the same procedure.

The only difference perhaps is : the fact that within the legislative process, at some point,
the bill considered of constitutional importance is debated in front of a committee of the
whole House.

In the past few years: the Parliament has passed constitutional statutes, and the recent
ones are known to be quite important :

- The HRA in 1998 :

The purpose is to incorporate within the UK legal system some acts of the ECHR. This act is
the target of the Government, and they made a bill to repeal it. Nevertheless, it's been
stopped as they had more important things to focus on.

- The European Union Act in 2011:

Tensions between the EU and the UK were going on for a while and the purpose of this act
was to strengthen procedures necessary to ratify EU legislation in order to make it harder to
agree to treaty changes.
 The idea was basically to paralyze further transfer of the UK competences to the EU

- Succession to the Crown Act in 2013:

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Its purpose was to end gender discrimination on successions. The first child gets the
succession and not necessarily the first man.

- EU (withdrawal) Act 2018, EU (Withdrawal) Agreement 2020

- Acts relating to devolution

Example : Scotland Act 1998, 2012, 2016 Wales Act 2014, 2017

FUNDAMENTAL PIECES OF LEGISLATION:

- The European Community Act (ECA) of 1972 (now repealed) :

It’s a fundamental constitutional change because this act is necessary in order to comply (to
conform) with the fundamental rules of the EU.

Therefore, to implement the EU law in the UK legal system (UK : dualist state => a statute
enacted by the Parliament is needed to implement international and EU norms in the UK legal
system).
 This act gives effect to directly applicable and effective EU legislation into the UK legal
order

Its content was debated and more precisely, the duty this act imposes on the judiciary when it
comes to the primacy of UK law in the internal order. As a result, EU legislation shall be
enforceable in the UK courts and take precedence over UK.

- European union (withdrawal) Act 2018 :

This act repeals the ECA 1972 on exit day (31 January 2020) : it deprives EU law of its basis in
the UK legal order. It gives powers to ministers to enact regulations to deal with the
consequences of the withdrawal (impact on separation of powers)

Purposes and effects:

 To ensure continuity by creating a new category of norms in order to avoid
legal vacuum : retained EU Law. It keeps most of the EU legislation in the UK legal
order.
 The principle of EU law supremacy will no longer apply for legislation passed
after exit day : but will remain for the interpretation/quashing of any enactment
passed before exit day.
No more reference to the ECJ after exit day, its rulings will only be taken into
consideration by UK courts if they see fit in regard to the case at hands.
 Passed decisions of the ECJ on retained EU law remains binding on UK courts
below the UK SC
 The effect of EU law is still present even after Brexit.

Besides recent legislations, there are some more ancient ones which are of constitutional
importance :
- The Bill of Rights, 1689 :
Originally, the idea was to protect members of the Parliament and their opinions against the
King. It limits the prerogative powers of the King and protects fundamental rights of
Parliament as well as liberties

- The Magna Carta, 1215 :

It’s a symbolic text as it doesn't really protect funds. It entails rights although there are rights
granted to mediaeval communities (merchants, cities, churches...) and protection against
arbitrary punishment.

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Pollock and Maitland said, “The nearest approach to an irrepealable fundamental statute
England has ever had” (History of English Law). Constitutional statues remain at the same
level as ordinary statutes with the nuance regarding the repeal of these statutes.

- The Parliament Acts 1911 and 1949 : It restricts the power of the House of Lords to
delay and block legislation
- The Act of Union with Scotland 1707
- The Act of Settlement 1700
- The Petition of Right 1628 : It’s a protest against taxation without the consent of
parliament

B. Secondary legislation

It’s the legislation made by the Executive under the supervision and authority of Parliament.
Basically, the Parliament through the Parliament Act delegates the power to make legislation
for a particular purpose to the Executive.

There are certain procedures in order to supervise the manner in which the Executive uses
the power delegated to enact subordinate legislation.

In other words, delegated legislation is legislation or law that is passed otherwise than in an
AOP (or an Act of the Scottish Parliament, Northern Ireland Assembly, National Assembly for
Wales).

Government minister : one may find constitutional principles here but it’s rare as this
legislation is made to deal with technical details concerning the application of the primary
legislation.

Nevertheless, they remain important concerning constitutional matters :

- Scotland Act, 1998 : this Act allows secondary legislation to enact laws of
constitutional importance.

In the Scotland Act, there are different categories of matters, some of them being reserved to
the UK Parliament. Schedule 5 contains the reserved matters.
 Everything that is not reserved to the Scottish Parliament belongs to the executive
power.

The issues of independence of the states composing the UK are reserved to the Westminster
Parliament.

But then, how do we organize the referendum of Scottish independence ? Knowing that it’s a
reserved issue figuring in the Scottish Act enacted by the Parliament, legally the Scottish
Parliament cannot do anything, but it can have a political impact if Scotland isn’t involved in
its independence process.

Regarding this, it was decided to amend the Scotland Act in a sense that reserved matters
have an exception concerning the referendum.

The Scotland Act permits the secondary legislation to adopt acts on important issues that
were reserved to the Parliament. Instead, through this enabling Act, power is conferred to
make delegated legislation on another person or body.

II. Case law

It's a judge-made law and judges contribute to constitutional law in 2 ways :

- By the declaration of various aspects of the CL : non-statutory law is recognized,
enforced, and developed by the courts
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 - By the statutory interpretation : Courts perform the function of interpreting
legislation, which can be considered of constitutional importance

A. Cases related to the development of the Common Law

The CL is non-statutory law which is developed and enforced by the courts. It consists of rules
formulated to deal with rules for which there are no statutory provisions.

For Bradley and Ewing, CL is : « laws and customs which have from early times been declared
to be law by the judges in deciding cases coming from them » (= principles that don’t find
their source in statute law).

Legislation that started in the 20th century has developed and got bigger than the source of
CL. Important powers such as the one related to foreign affairs are found in the CL.

Prerogative powers : powers of the Crown, their origins are found in the powers of the
monarch.
 They have since been reduced and transferred from the monarch to ministers.

Some of them are still exercised by the Queen (personal prerogative), usually with the Prime
Minister’s consent
Example : the appointment of ministers

The courts have progressively started to exercise a form of control over prerogative powers.

There are cases :

- Dealing with the limits of these prerogative powers
- Concerning constitutional law because they declare important rules dealing
with the functioning of the State.

If the courts are able to control certain prerogative powers, there are other prerogative
powers that they consider to be outside of their competence.

The courts also ruled that the exercise of some prerogative powers can’t be
justiciable/controlled because of their political nature/importance
Example : Miller Case

B. Statutory interpretation of statutes of constitutional importance

It’s the role of the court to give effect to the correct intention of the Parliament when it isn’t
clear.
When it comes to interpreting these statutes : we understand the importance of cases
as a source of constitutional rules.

The case of Miller, from this perspective is an important act as the judges spent a lot of time
trying to understand the intentions of the Parliament when enacting the ECA.

Judges have developed rules of interpretation :

- Literal approach : they focus on the ordinary meaning of words.
- Purposive approach : they will look beyond the ordinary meaning of words to take
the purpose of the law into consideration in order to choose between several available
interpretations of the act (they search why the law was made)

They can use either :

 Internal aids : they interpret a particular provision in the light of the rest of the
provision.

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  External aids : following the decision Pepper v/ Hart of 1993, the courts may in certain
circumstances take account of statements made in Parliament by Ministers or other
promoters of a Bill in construing that legislation.
 Presumptions of interpretation (important in Miller case)

Parliament does not intend to legislate in contradiction with UK international obligations.

When something is not clear in the statute: if one statute is in contradiction with an
international norm and another one isn’t, judges are going to rely on the one that doesn’t
contradict it.

Parliament does not intend to deny access to court/restrict citizens’ rights. It’s important in
the Miller case in which it’s said that the citizens will no longer have the important
fundamental rights acts given by the ECA if the UK leaves the EU.

- These presumptions can be used only if there are no clear words (P doesn’t give
clear intentions)
 But if everything is clear : even if judges consider that the Parliament is purposely
going against an international norm, they have to let it be.

In addition to this : the role of the judiciary when it comes to interpretation has been
increased thanks to important constitutional statutes :
- The rules of interpretation that have emerged here are that the Parliament
doesn’t intend, when legislating, to depart from EU law.
- UK Statutory provisions must be given effect consistent with EU law, even if
there is no ambiguity : judges must do their best statutes and EU law compatible (S2
(4) of the Act)
- Increased interpretative role with section 3 of the HRA : « so far as it is possible
to do so, primary legislation and subordinate legislation must be read and given effect
in a way which is compatible with Convention Rights » Power given to courts in order to
try to reconcile the domestic legislation with the HRA.
 There is a limit to the judges’ power : they can’t really go against the Parliament

III. Law and customs of the Parliament

This is a mix of rules (law) and practices (custom) governing the work of Parliament. They are
very important because they concern important constitutional matters related to
parliamentary affairs but it’s quite specific as they exclusively focus on the work done by the
Parliament and nothing else.
Example : custom => Prime Minister must take an oath to allegiance to the throne (1868)
Rules => Standing orders, resolution

Each house decides how it works based on these norms enacted by the house itself.
 It has power over its own functioning.

There are also very important rules contained in the standing orders of the houses in which
we find important rules about Parliament works (how the legislative procedure is organized).
We find these aspects in the resolutions (= rulings made by the speaker of the House of
Commons) but also in informal practices, rules on how the Parliament works (relation between
front and back benches, how the speaker of the house has to be impartial).

- Legal writers :

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Although sometimes they're mentioned in cases by judges for being persuasive, in English law
they’re not officially considered as a source of constitutional law. In Scotland, in the field of
private and criminal law they’re considered as a source but it’s not the case of public law.

Some books are considered very persuasive by courts

 But they are not formal sources of constitutional law

Legal writers are not considered as an official source of constitutional law although important
writers such as Dicey are quoted in case law. Even if they may be cited by judges, they are
not considered a formal source of constitutional laws.

IV. Constitutional conventions

They're an important source of constitutional law but quite peculiar because they're unwritten
and non-legal rules. But they are still fundamental for the functioning of the system and
considered of political morality.
 They are sometimes codified or written but their origin is not written.

They cannot be enforced by judges, so they won’t lead to judicial action. Political actors still
consider them as binding, breaching these rules might have political consequences.

Terminology : constitutional conventions have to be distinguished from international

conventions as the first ones are non-legal rules of political morality contrary to the second
ones which are legal and written rules.

Dicey defined constitutional conventions in Introduction to the study of the Law of the
Constitution, 1885 as : « conventions, understandings, habits or practices which, though they
may regulate the conduct of the several members of the sovereign power, of the Ministry, or
of other officials, are not in reality laws at all since they are not enforced by the courts »

Constitutional conventions, because they are not enforced by the courts, aren’t laws :
- There may be political sanctions but no legal sanctions.
- They’re considered to be binding by political actors, but they cannot be brought in
front of courts

A. Importance of these constitutional conventions

The Conventions are important because they :

- Fill the gaps of legal and written sources
- Help understanding the UK Constitution
- Offer flexibility

They are very important, fundamental in the UK. They fill gaps of legal and written sources.
As Sir Igor Jennings said in The Law and the Constitution, 1959, they « provide the flesh which
clothes the dry bones of the law; they make the legal constitution work; they keep in touch
with the growth of ideas »

Without knowledge of constitutional conventions, one has only a partial

comprehension/understanding of the UK Constitution.

Example : the issue of royal assent : no legal rule prevents the monarch from refusing royal
assent to a bill voted by the parliament.
In order to become an AOP: a bill must be voted by both Houses of Parliament and then
receive royal assent from the King (contribution of the monarch to the legislative procedure)
=> the King is necessary for the bill to become an act.
 There’s no legal rule preventing him from refusing the royal assent to a bill.

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From a legal point of view : the King
- May not grant the royal assent
- Can’t be forced to do so.

However, if we look back in history, the royal assent has only been refused/denied in 1708
once by Queen Anne.
 Since then, no monarch has refused to give royal assent.

The monarch grants the assent because he feels that he is obliged to follow this behavior.
This is what the monarch is expected to do in this monarchy (= to follow the decision of
the Parliament, representing the people)
 There is a custom in which the monarch always gives the royal assent despite what he
thinks even if there are no rules obliging him to.

Because they are unwritten, they provide flexibility in the functioning of the UK Constitution
and allow the legal framework to adapt to changing circumstances.
Example : The House of Lords constitution committee, in its 2014 report on the constitutional
implications of coalition government said that “under the current government, there have
been significant departures from constitutional practice.

Some say that the British Constitution :

- Is so flexible that it can absorb these departures with no difficulty
- May have changed permanently because of current practice”.

This report is critical of the previous coalition Government as there have been departures of
well-established conventions under it.
Example of this flexibility : ministerial collective responsibility and coalition Government.
Cabinet Manual is the cabinet system of government is based on the principle of collective
responsibility.

All government ministers : are bound by the collective decisions of Cabinet, save where it
is explicitly set aside. The conversations/disagreements must stay private because in public,
every member of the Cabinet must support the decision of a member.
 But sometimes: it is possible for Ministers to depart from a decision in public without
breaching the conventions.

B. Some areas in which conventions operate

- Relations between the Government and the Parliament

- Relations between the two Houses of Parliament
- Relations between the Monarch and the Government
- Relations within the Government

C. Functions performed by conventions

There are 3 functions performed by them :

- Limiting the Sovereign’s prerogative powers
- Creating institutions and regulating the way they work
- Promoting a limited government

1. Limiting the Sovereign’s prerogative powers :

- Granting of Royal Assent

- Appointment of PM and of other ministers : as a matter of convention (no legal
rule for the appointment of ministers, legally, the Queens appoints whoever she wants),
the monarch appoints the person who enjoys the confidence of the House of Common.

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This also explains why there’s another convention according to which the PM must be a
member of the House of Common so as to be accountable to the House of Common.
 Same goes for the other ministers, they must be members of Parliament.

2. Creating institutions and regulating the way they work :

- Existence of the office of PM and Cabinet : their existence derives from

constitutional conventions and are now mentioned by statutes but only in peripheral
manners.
- Organization of the Cabinet : a convention says that the PM decides the
composition of the Cabinet who attributes the portfolios of the different ministers.

Another one says that ministers must be members of Parliament so that they can be
accountable (responsible) to the house they're a member of.

3. Promoting a limited government :

- The PM must be a member of the House of Commons

- Individual ministerial responsibility : ministers must support the policies decided
by the cabinet and normally, the idea is that if a minister breaches the convention, he
is expected to resign (it's quite rare in reality).
 They should not publicly express their disagreement.
- Collective cabinet/ministerial responsibility : it has various aspects, including the
fact that the Government is collectively accountable before Parliament and if there is a
vote of non-confidence by the House of Common, the Government in principle resigns.

This was written in the fixed-term Parliament Act, 2011 to prevent dissolution of the
Parliament for political reasons (dissolution anglaise). The idea was to take away the
prerogative power of the PM.

The Act says that if the vote of non-confidence occurs

- It opens a 40 days period during which the Prime Minister and the political parties will
try to form a new Government that the House of Common will trust.
 If the attempt of this newly formed Government fails, then the Government must be
dissolved.

This legislation was criticized so it was repealed in 2022, giving back a prerogative to the PM.

D. Other conventions
- Financial measures should be introduced in the House of Commons : these
measures can’t be altered by the House of Lords for democratic legitimacy. Principle
based on the democratic legitimacy of the House of Common.
- Government must provide time for opposition censure motions : it must be so
to provide a democratic debate.
- Judges and political parties : when a judge is appointed, it must be made sure that
he has no link with any political party, in order to ensure their independence and
impartiality.
- Sewel Convention : it’s the convention regarding the devolution.

The Westminster Parliament doesn’t legislate on devolved matters without the consent of the
Scottish Parliament. Sometimes that convention is breached, and it creates negative
reactions but most of the time Westminster Parliament respects the devolved powers.

Despite that, as a matter of law, the UK Parliament can legislate on subjective matters that
are devolved thanks to its supremacy.
 Nevertheless, as a matter of convention, it cannot.

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 E. How are conventions created ?

There are 2 ways through which they may appear :

- By evolution :
As explained by Turpin and Tomkins in British Government and the Constitution, 2007, by
« gradual hardening of usage over a period of years or generations »

- By express agreement (of the political actors) :

This one is quite rare but there is an example with the Sewel convention that was decided by
political actors. Despite the unconstrained power of the Westminster Parliament, it will
refrained legislating on devolved matters without the consent of the Scottish Parliament.

Usually, one uses the test established by Sir Ivor Jennings in the Law and the Constitution,
1959 : « We have to ask ourselves three questions : first, what are the precedents; secondly,
did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a
reason for the rule? […] »

He identified a test in order to identify a convention based on 3 elements/ questions :

- What are the precedents ? :
Precedents are very important in establishing the existence of a constitutional convention but
at the same time, it’s not because a practice has been repeated and followed over a long
period of time that necessarily it means this practice is a constitutional convention.

It must also have a constitutional significance in order to be considered as a constitutional

convention. The practice must have a constitution value/significance . This practice must
reflect an important constitutional element.

- Did the actor in the precedent feel bound by the rule ? :

Political actors must feel like they’re obligated to follow this convention.

- If this feeling disappears : the convention disappears with it.

- If these conventions were ignored : it might be problematic for the Constitution.
- If the practice is no longer followed by political actors : it’s an indication that
this convention is not considered as constitutional one and will finally disappear to a
certain extent.

- Is there a reason for the rule ? :

A constitutional convention reveals an underlying principle of the UK Constitution : it has a

constitutional value, there is a reason behind this rule and it’s because of this reason that
political actors feel like they’re obligated to follow it.

Example of the birth of a new convention : as a matter of law, the Government

- May decide to go to war without seeking the prior approval of Parliament
- May decide to commit in force
 There is no legal rule to seek prop approval from the Parliament.

In principle : the decision to commit the armed forces finds its source in the Royal Prerogative,
exercised on behalf of the King by the Prime Minister.
Despite this, before going to war against Iraq, the Government seeked the support of the
House of Commons, who was asked to vote on a resolution approving the use of all necessary
means to ensure the disarmament of Iraq, including military action.

In this case :

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 - There are precedents : the debate and votes of the House of Common about military
actions in Iraq (2003), Libya (2011) and Syria (2013)
- There is a bound : political actors fell bound by the convention since the Libya vote
- There is a reason for the rule : it’s a democratize principle

F. Why obey conventions ?

When a convention is well established, political actors feel bound with the for various
reasons :
 Positive reason : Conventions are considered fundamental and reflect important
values/principles of the Constitution. Political actors follow convention because they
think a breach of convention could endanger the stability of the Constitution and the
country.

 Negative reasons to follow conventions :

- Fear of political and public disapproval : there is the fear that breaching a constitutional
convention may lead to moral and political disapproval.
- Fear of political difficulties : there is the fear of creating chaos if the reason why a
constitutional convention got breached is unclear.
- Fear of non-reciprocity : the Government of the day or the majority political party of the
day accepts these conventions so that the following Government or the following
majority have the same limits as they do => political self-interest reason

G. Consequences of breach of conventions

Breaches of conventions are not sanctioned legally but there are still probable political
sanctions. But even there, it depends on the type of breach, the reaction of the political
actors, a political sanction is not automatic
Example : Liam Fox had to resign because of a breach of the ministerial code
 This shows that when a political actor breaches a convention, the consequences can be
very serious

In general, if a convention is breached without political consequences : it may lead to the

disparition of the convention breached.

In the other hand, if the breach of the convention leads to political consequences : the
convention will be reinforced, even maybe to become a statute.
Example : There is a convention according to which the House of Lords must give way to the
House of Commons in the passing of finance bills.

The idea is that when it comes to money, the House of Lords shouldn’t decide the passing of
any bill as it’s a non-elected chamber. In the passing of the Finance Bill 1909, the House of
Lords resisted the House of Commons, breaching the convention according to which it must
give way to the will of the House of Commons.

The breach of this convention led to the Parliament Act of 1911 which states that the House of
Lords cannot veto the financial legislation anymore, it can only delay it.
 This convention was reinforced and codified

H. Conventions end codification

Should we turn conventions into laws ? There’s indeed a tendency to try to clarify the content
of constitutional conventions and to write them down somewhere (manuals, soft laws, acts of
Parliament).

Example :
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 - The Ponsonby Rule :
It’s a convention which limits the power of the executive to conclude international treaties. It
basically entails that a treaty must be laid before Parliament before ratification.
 It was codified on the Constitutional Reform and Governance Act of 2010

- The Sewell convention :

Despite the fact the UK Parliament can legislate even in devolved matters because of its
supremacy as a matter of law, it is agreed, on the basis of this convention, that it will refrain
from legislating on devolved matters without the consent of the devolved legislators by
motion (legislative consent motions).
 Recently, this convention has been included into the section 2 of the Scotland Act 2016
which amended the section 28 Scotland Act 1998.

But does it change the nature of these conventions ? Should all conventions be enacted as
law ?
Some people agree that it’s a good idea :
- To clarify these rules and the functioning of the UK Constitution : gain more
accessibility, transparency
- To try to protect a convention to be breached by political actors by
reinforcing their status
- Reinforce the strength and binding nature of the convention

Others agree that the prospect of codifying all conventions is neither possible nor
desired
 The pertinent conventions must be identified and choosing the most important and
clear ones is a hard thing to do.

But it’s not sure that’s a good idea :

- Codifying conventions will lead to a loss of flexibility of the UK Constitution, preventing
conventions from evolving as they would be crystallized into statute law.
- Codifying may not necessarily lead to clarity and certainty as there’s no guarantee the
ambiguities of conventions will be clarified just because they’re written down into
statute law.

The problem of the eventual change of the nature of conventions because of codification.
- What are the consequences of putting conventions into law ?
- Would it allow courts to interfere with what is considered as, in fact, mainly a political
issue ?

This has been expressed as a fear by certain political actors that the courts would interfere
with politics. Other experts were quite confident in the capacity of the judges to consider it a
noble area even though they were put into legislation.

Nevertheless, courts can develop theories and doctrines in order to prevent this risk from
occurring. They may decide not to interfere into what is considered a political matter, despite
the fact that the convention is embodied into a statute and do so by saying that it’s not
justiciable. There are techniques for courts to avoid interfering with politics if they wish to do
so.

Example : Miller case  this case answered that fear.

Codifying convention did not alter the nature of the convention unless it was the clear
intention of the Parliament to do so. The president of the Supreme Court explained that this
process of codification didn’t change the nature of the convention + sanction legally the
breach of the convention. The process of codifying doesn’t necessarily change the nature of
conventions.
 The Parliament can attempt to do so for symbolic political reasons
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Courts have the role of interpreting statutes. If conventions were put into law, judicial power
could be exercised on them.

The mix of politics and law, political and legal principles can be dangerous, so we have to find
the right balance between the 2.
It’s very sensitive and complex to talk about this issue and to be able to clarify the question,
put the convention into legislation and change the name of the rule.

I. Courts and conventions

Convention are non-legal rules. So, there are no direct enforcement by courts (no legal
remedy against breach of convention/no legal sanction).
 This also demonstrates the dual relation that courts have with conventions

Courts cannot enforce conventions as they are non-legal : which results in the
impossibility of pronouncing a legal sanction
Example :
- Lord Neuberger in « Miller » said about the relation between courts and conventions :
« It is well established that the courts of law cannot enforce a political convention »
 But conventions are recognized and taken into consideration by courts

- Crossman Diaries case (1976) : this case evolved into the constitutional ministerial
collective responsibility convention.

It means that the Government is politically accountable to the Parliament, when the
Government loses the confidence of the House of Commons, it is expected to resign as a
whole.
But also, ministers are expected to publicly support policies and decisions made by the
Cabinet. The counterpart of this obligation for the ministers is the fact that they can freely
express their opinions during the cabinet meetings.

If they disagree, they can express it but then, the secrecy of these discussions must be kept.
For the outside world, the ministers must support the decisions taken by the cabinet.

Despite the opposition of the cabinet : several extracts of the diary were published to
the press.
The attorney general decided to seek injections against the newspapers in order to prevent
further publications of these extracts in the public interest.

When examining the arguments of the various parties, the court of appeal acknowledged that
the attorney general could find in the CL a law for his legal actions = this is legal rule.

The court considered that publication of information received in confidence by a cabinet

minister could be restrained by courts such as commercial and domestic secret on the basis
of the law of confidence. The court has to deal on the legal boundaries of the rule of
confidence and has to decide whether or not to apply to the cabinet.
 This is an example of how judges develop the CL on the law of confidence as they took
this convention into consideration when developing the CL.

The court said that it was a legal rule and not only a moral rule and by doing this, but the
court also recognized that confidentiality is necessary for the maintenance of ministerial
collective responsibility, and it could be of public interest as well (that the convention is
upheld).

- Evans v/ Information Commissioner, (2012) : this case shows an interplay between the
law and constitutional convention
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Rob Evans is a journalist working for the Guardian who tried to obtain disclosure of
« advocacy correspondence » between Prince Charles and Government Departments.
 He wanted to show the pov on certain issues and where Charles would be seen as
putting forward some charities.

In order to preserve these conventions : it is agreed that the communication between

the monarch and the members of the Government must stay confidential. In order to assess
whether there was a public interest in disclosing the correspondence, the Upper Tribunal
needed to consider several constitutional conventions :
- Cardinal convention and tripartite convention
- « Education convention » : Constitutional convention that the Heir to the Throne is to
be instructed in the business of government

The Upper Tribunal concluded that the convention :

- Does not extend to « advocacy correspondence »
- Correspondence related to « social and charitable matters » of the Education
convention

At the end of this long process, Rob Evans and the guardian were able to publish the
correspondence made by Prince Charles.
 Following this decision, the government exercised a veto

Mr. Evans said that this administrative decision was unreasonable, so he appealed. The SC
ruled against the decision of the government to the majority.
- Re Amendment of Canadian Constitution case (1982) : the case is about the
Partition of the Constitution of Canada.

Canada is an independent state, but its structure was first established by acts of the UK
Parliament (1867).

At the time of the case :

- No amendment to the distribution of powers between the federal government and the
government of the provinces could be made by the Parliament in Canada alone.
 Later : the Government said that it was time to ensure that all future amendments of
the Canadian Constitution would be in the hands of Canada only and not the UK.

The resolution made by the Parliament of Canada was addressed to the Queen. In addition,
the resolution affected the distribution of power between the main power and the provinces. It
was voted despite 8/10 provinces of Canada disagreed.

The questions asked to the SC were :

 Is there a constitutional convention that the consent of provinces is required?
 Is the consent of the provinces “constitutionally” required for the amendment of the
Constitution ?

The SC responded that :

- As a matter of constitutional convention, the agreement of the provinces is required.
- There are precedents : previous amendments were agreed upon by the provinces
whose legislative authority was affected by the amendments
- Political actors believe that a “substantive degree of provincial consent is necessary”,
even if no unanimous consent is required
- The reason for the rule is the federal principle : Canada is a federal state and changing
of powers could not be decided unilaterally by the government.

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The 3 Jennings’ aspects are reunited : as matter of law, the consent of provinces is not
required.

The SC decided that there was no legal prohibition to pass the resolution without the consent
of the provinces.
 This also illustrates that the breach of conventions is only political and not legal

CM3 29/01 (que 1h de cours)

CM4 5/02
CHAPTER 2 : PARLIAMENTARY SUPREMACY

(Lectures 9-12 : The traditional and new view (manner and form) on Parliamentary
Supremacy)

Terminology : Sovereignty and Supremacy can be used

SECTION 1 : TRADITIONAL VIEW

Definition : Dicey : « The principle of parliamentary sovereignty means neither more nor
less than this, namely that the Parliament… has, under the English constitution, the right to
make or unmake any law whatsoever; and, further, that no person or body is recognized by
the law as having a right to override or set aside the legislation of Parliament » (Introduction
to the study of the Law of the Constitution, 1885).

This leads to 3 consequences :

- No legal limitations on the legislative power of Parliament
- Courts cannot question the validity of an Act of Parliament
- Parliament cannot bind its successors nor be bound by its predecessors

I. Parliament is legally free to legislate on any matter it sees fit

 Parliament is legally free to pass legislation on any matter and the courts cannot
question its validity no matter how wrong the legislation can seem.
When we talk about the Parliament, we talk about the Queen. The power is unlimited :
Madzimbamuto v Lardner-Burke (1969) : « It is often said that it would be unconstitutional for
the United Kingdom Parliament to do certain things, meaning that the moral, political and
other reasons against doing them are so strong that most people would regard it as highly
improper if Parliament did these things. But that does not mean that it is beyond the power of
Parliament to do such things. If Parliament chose to do any of them the courts could not hold
the Act of Parliament to be invalid ».
 Parliamentary supremacy is the key, but the judge can decide to not apply a rule if it
violates the rule of law.

It also means that when the bill becomes an act of Parliament it is considered as supreme in
the UK legal system.

Acts of the UK Parliament benefit from a judicial immunity (not the case for devolved
Parliament) : Courts cannot control the validity of Acts of Parliament but can only control the
validity of inferior norms (delegated legislation, devolved legislation).

Example : control of Acts of the Scottish Parliament. This Parliament is not supreme. The
Attorney General and the Advocate General for Scotland (2021) said : « The Scottish
Parliament has plenary powers within the limits of its legislative competence. But it does
not enjoy the sovereignty of the Crown in Parliament … Parliament … has an unlimited
power to make laws for Scotland, a power which the legislation of the Scottish Parliament
cannot affect. »

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  It’s not possible to strike down the act of the Parliament if it’s not compatible with the
ECHR.
In comparison, for the acts of the Scottish Parliament, immunity is not guaranteed. At the
same time, even with the Scottish Parliament, you can’t treat its act as you would treat any
act because it’s from an elected body. For instance, they are not subject to judicial review on
the ground of irrationality.
 This show the difference between UK Parliament, which is supreme, and other
institutions.

A. Parliament may legislate retrospectively

Normally, laws are prospective. Yet, if Parliament wants to do it in a retrospective way, it can.
But at the same time, there is a presumption according to which the courts assume that when
Parliament legislates, it doesn’t intend to do it retrospectively because when it comes rule of
law, it's quite problematic. Nevertheless, this is only a presumption because Parliament can
do it if it wants to as long as it uses express words.
 In order to reverse the presumption, Parliament had to use express words.

B. Parliament may decide to pass legislation with an extra territorial effect

This means, from a legal point of view that Parliament can legislate in respect of places that
are not under the control of the British Government.

Example : Canada Act 1982 and the ‘patriation’ of the Canadian Constitution. The Parliament
in Canada sent an act to the Queen.

C. Parliament may decide legislation in violation of international law

Parliament has the possibility to legislate in contradiction with international law. Once
again, there is a presumption according to which the contrary is said as it may have
consequences on the international plan and therefore, courts will try to reconcile an act of
Parliament with the international treaty. But in reality, the act of Parliament prevails.

Example : R v/ Lyons (2002), Lord Hoffmann: « the sovereign legislator in the United Kingdom
is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts
to apply it, whether that would involve the Crown in breach of an International
Treaty or not ».

D. Parliament may pass acts contrary to constitutional conventions

Example with the Madzimbamuto v/ Lardner-Burke case :

In the convention, it says that UK Parliament does not legislate for dominions without their
consent, they enjoy legislative autonomy. It was later codified in the statute of Westminster in
1941. In 1965, South Rhodesia unilaterally declared its independence and the UK Parliament,
as a response to this, enacted the Southern Rhodesia Act depriving the Rhodesian Parliament
of its power and reasserting the power of the UK Parliament to legislate for South Rhodesia.

E. Parliament can change the Common Law rules

Parliament can change common law rules. Since 1688, superiority of Parliament is
recognized by courts so they can’t question the validity of Acts of Parliament.
Doctrine of Supremacy of Parliament regulates relations between Courts and Parliament
because there is no constitutional review.

II. Courts cannot question the validity of an act of Parliament

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This is something very peculiar of the UK Constitution as in many countries, there are
constitutional reviews contrarily to the UK. The maximum that courts can do :
- In the area of EU law, it is to set aside an act in contradiction with EU legislation
without stroking it down
- In the area of HRA, is only to adopt a declaration of incompatibility. The act continues
to apply though it's not set aside and not struck down. The declaration of
incompatibility has no impact on the legislative provision. It is very limited.

III. Parliament cannot bind its successor nor be bound by its predecessor

The Parliament is supreme in its own time. It means that it can always repeal an act :
- Express repeal (abrogation expresse)
- Implied repeal (abrogation implicite)

Courts face with 2 conflicting Acts : When there’s a contradiction between the provisions
of a later Act and a former one, which provisions should be applied to the particular case ?

This is to the courts to decide, but because there is this aspect of Parliament being
supreme in its own time, courts have to apply the later Act. The former one is
considered to be repealed to the extent that it is incompatible with the later act.

Reminder : when it comes to constitutional statutes, the doctrine of implied repeal cannot be
applied. But otherwise, it is possible for legislation to be impliedly repealed.

The orthodox position is judicial deference (= deference involves the principle that the courts,
out of respect for the legislature or executive, will decline to make their own independent
judgement on a particular issue). This is expressed for instance in the :
Example:
- Parte Selwyn case (1872) : « There is no judicial body in the country by which the
validity of an Act of Parliament can be questioned ».
- Madzimbamuto v/ Lardner-Burke case : « … If Parliament chose to do any of them
(improper things) the courts could not hold the Act of Parliament to be invalid ».

What is interesting also is that courts are reluctant (réticent) to review the procedure of
enactment of the Act.
 It is good law no matter the manner in which the act was passed.

To sum up : When deciding if a norm is an act of Parliament and therefore is immune to

judicial review, the task of courts is limited to the « enrolled bill » rule (= if an act bears the
sign of a duly enacted act, the courts cannot question it) :
- If an act has been made improperly, this is for the Parliament to correct the problem by
repealing the act.
- As long as the act exists as valid, courts must apply it.

But the impossibility of courts to review acts of Parliament is not as absolute as it

seems to be because sometimes, they do it :
 The Jackson v/ Attorney General case (2005) :
There was a question about the nature of an act of Parliament and the judges expressed
discomfort answering this question. This case is about the operation of the Parliament Act
1911 and 1949, dealing with the possibility of passing legislation without the consent of the
House of Lords. Normally, bills must be read and passed 3 times by each house and then they
must receive the royal assent in order to become acts of Parliament. It’s important because
they are immune to judicial action. Is this particular act debated in this case a parliamentary
act therefore immune ?

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SECTION 2 : MOVING AWAY FROM THE TRADITIONAL VIEW

The traditional position is very simple. The Constitution has nevertheless changed, and the
traditional view has been somehow challenged. Judges in different cases have expressed the
view that parliamentary supremacy is no longer absolute : there are limitations on it
despite the traditional view, such as political constraints (delegation) or legal ones
(membership of the EU, operation of the HRA which is not as powerful as the limitation that is
currently existing under the ECA 1972).

The other challenge concerns the legislative procedure. There are two types of constraints
that may be imposed on Parliament :
- Formal constraint : the question is whether or not it is possible to limit the manner
and form in which Parliament can enact legislation.
- Content of the act : If, according to the traditional view, there is no limit on the
content of an act of Parliament.

Can at least Parliament be bound as to the form in which it enacts legislation ?

Can the Parliament of the day bind its successors not as to the content of legislation but as to
the manner in which future parliaments may pass legislation (ex : requiring that a particular
bill can’t be passed without a referendum, qualified majority in the Parliament…) ?

In the UK academic world, there are 2 positions defended:

- No : Considering that such limitations about the procedure would have no binding
effect, the future parliaments would be free to disregard them because each Parliament
is supreme in its own time. The idea is that Parliamentary supremacy is a political fact
and not a legal rule. Parliament did not establish its supremacy through statute;
therefore it cannot change it. This was defended by Sir W. Wade : only a revolution
could lead to a change. As such a revolution didn’t occur, future parliaments can ignore
these procedural limitations. `
- Yes : The Parliament can bind itself and its successors as to the manner in which
legislation must be enacted because these rules have the purpose of defining what an
act of Parliament is and what is the process that it must follow in order to enact valid
legislation. Therefore, Parliament would not be free to disregard the manner and from
which valid law is enacted. Parliament remains free to legislate on anything, but it must
follow the prescribed procedural rules contained in a statute. This was defended Sir
Jennings : Parliamentary supremacy is a common law rule, which can be modified by
Parliament.

Opposition between continuing and self-embracing theory of Supremacy :

 Wade : Parliament cannot modify the ultimate rule on which its authority rests
 Jennings: Parliament can modify the common law rule according to which an Act of
Parliament is considered as valid.

I. Certain cases are used to support the modern view of supremacy : new view
relies on Commonwealth cases

South Africa had become independent thanks to the process of revolution and
independence from the UK. In 1948, the Government wanted to introduce “Apartheid” this
legislation passed in order to remove those rights without following the procedure of the
South Africa Act 1909 (“Cape coloured” voter’s right could only be removed if bill passed
by the two Houses of Parliament sitting together and at the third reading). The Separate
Representation of Voters Act was passed without following the prescribed procedure
 The Supreme Court of Africa said that the act passed through a different procedure
from the 1909 act is invalid.

II. What is the value for the UK ?

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Commonwealth cases are not binding on English courts. Entrenched provisions were
contained in a “higher” law. Legislatures of those countries were not supreme.
 These procedures were imposed by a form of higher law, and this implies that these
legislatures are not supreme in those countries.

III. The Jackson Case and the « manner and form » limitation

The dispute about whether or not Parliament can limit future parliaments as to the manner
and form by which legislation is enacted (promulgué). The Parliament Act 1911 and 1949
provided an alternative way of enacting primary legislation without the House of Lords
consent. But a provision of the act, section 2 (1), says that a normal procedure must be used
in order to pass a bill extending the life of Parliament beyond 5 years, meaning that the
House of Lords approval is required.
 It is considered a weak form of entrenchment that only the consent of the House of
Lords is needed, no majority or referendum whatsoever is required.

There was limited constraint, but several judges consider that if the prohibition was
ignored, courts should decline to consider the result as being an Act of Parliament.
The Parliament Acts make it easier to pass legislation. However, Lords considered that the
reasoning in Jackson could be applied to procedural requirements imposed to make it more
difficult to pass legislation.

Example : Lord Steyn « the Parliament could for specific purposes provide for a two-thirds
majority in the HC and the HL. This would involve a redefinition of Parliament for a specific
purpose. Such redefinition could not be disregarded ».

In the Miller case about leaving the EU, Lord Neuberger said that it’s impossible that such
an important constitutional change is made exclusively through the prerogative. The purpose
of the ECA 2011 was to make it more difficult to transfer new powers and new competences
from the UK to the EU. In the act, it is said that in certain circumstances, treaties,
amendments and decisions made by the EU legislation can only be made if Parliament
approved them and in the most sensitive cases, it can only be made if a referendum is
organized. If the answer is positive : referendum lock (if the Government wants, for instance,
to accede to the euro zone it can only be made if a referendum is organized).

Has Parliament succeeded in binding future Parliament as to the manner and form of
legislation?

The majority thinks that procedural considerations must be followed by following

Parliament but if you believe in the traditional doctrine of Parliament, you may consider
that future Parliament are completely free to disregard those limitations.
V. Bogdanor said: « In seeking to restore national sovereignty, the EU Act has, paradoxically,
restricted parliamentary sovereignty ».

(Lectures 13-16 : Parliamentary Supremacy challenged)

SECTION 3 : PARLIAMENTARY SUPREMACY CHALLENGED

In the Jackson case, several lords took advantage of the case to express their views on
Parliamentary supremacy.
Example :
- Lord Bingham : « The bedrock of the British C° is, and in 1911 was, the supremacy of
the Crown in Parliament …Then, as now, the Crown in Parliament was unconstrained »
(subject to the impact of EU legislation)
- Lors Hope : « Parliamentary sovereignty is no longer, if it ever was, absolute ».
- Lors Steyn : The traditional view of sovereignty is « out of place in the modern United
Kingdom ».
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Lord Bingham defends a more traditional view about the power of the Parliament
 The power is absolute but there is an impact of the UE.

For Lords Hope, Steyn and others, parliamentary supremacy is not absolute. There are
limitations on the legislative powers : political and legal ones.
The limitations in question are :
- Manner of form limitation (procedural limitation)

- Devolution and Treaty of Union 1707 : mostly here we have rather a political
constraint, especially in the light of the recent Miller decision.

- EU membership (ECA 1972) : As we know with Brexit, things have changed, but the
EU membership had an impact on parliamentary supremacy. There were still a lot of
resistance against EU law which led to Brexit and finally resulted with the referendum.
EU law still has some effects in UK law at the moment from retaining EU law as a
category of law and there is still case law of the EVJUE when it comes to deciding an
issue dealing with a rule from the EU.

- Human Rights Act, 1998 : this act has changed the relationship between the courts
and Parliament, at the heart of the parliamentary supremacy. It gives effect to the
European convention at a domestic level and gives judges new power of interpretation
of the law. This has been criticized because it said that it acts led judges to step on
political territory to avoid their constitutional function. The HRA is under threat at the
moment.

- Rule of law : there is an opposition between academics and judges on which of the 2
principles of British constitutionalism is the more important. Some consider the
principle of parliamentary supremacy as the most important one and while others
believe the rule of law has more importance.
 Rule of law = one of the fundamental principle of UK constitutionalism.

I. Devolution

In the Jackson case, it is considered that the traditional view of Parliamentary supremacy is
out of time. Lord Steyn mentioned the devolution process as a constraint and limitations:
« with the devolution process, the UK may now face a divided sovereignty ».
 It is written in the Scotland Act that the UK Parliament retains power for Scotland,
Northern Ireland and Wales to legislate on devolved matters without the consent of
devolved legislation.
But from a legal point of view, Parliamentary supremacy is preserved because the UK
Parliament, despite the devolution process, remains free to legislate on every matter, even
devolved ones. However, it refrains from doing so by Convention.

Some questions arose from the passing of the Scotland Act in 2016 because it was decided
to put in the act certain elements of a political nature (ex: of an act used for political and
symbolic reasons). In this act, sections 1 and 2 state that:
 « A Scottish Parliament is recognized as a permanent part of the UK’s constitutional
arrangements »
 « … it is recognized that the Parliament of the UK will not normally legislate with regard
to devolved matters without the consent of the Scottish Parliament ».

Marc Elliot “this provision demonstrated that they have no legal effect but maybe there was a
political effect”. The word chosen was important because the Scottish parliament was
recognized as a permanent part of the UK constitutional arrangement.
This could be considered as limitations to Parliamentary supremacy because it tries to

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prevent future parliaments from removing the Scottish Parliament or legislating on
certain issues without the consent of the Scottish Parliament.
But at the same time, these are rather political constraints than legal ones and this was
confirmed at least when it comes to the Sewel convention in the Miller case : the Supreme
Court said that despite the fact that it has been introduced in legislation, remains a political
convention and cannot therefore be reviewed by courts.
Talking about divided sovereignty because of devolution is excessive but is definitely a
political constraint on the UK Parliament.
 The devolution process is a political constraint not a legal constraint.

The relationship with Scotland raises another question : (in the Jackson case) Lord Hope, the
Scottish Lord, said that Parliamentary supremacy is no longer, if it ever was, absolute.
If it ever was absolute, was UK Parliament born unfree, was Parliamentary supremacy an
English concept born from the glorious revolution rather than a British one ?
Scotland indeed doesn't know this concept of Parliamentary supremacy, it’s a very english
idea and the UK Parliament is the result of the merger (fusionnement) of 2 parliaments : the
Scottish one and the English one by the Treaty of Union 1707.
Before the treaty, they had the same king (James II) but 2 distinct parliaments.
It was in fact rather a take over from the English Parliament rather than a merger : the English
Parliament absorbed the Scottish one and the new Parliament was based upon english
constitutional principles.

 This is the majority position but it's not the position of Scottish expert.
Scottish judges weren’t really happy with that. In several decisions, they asked themselves if
the Act of Union could be considered as a form of higher law that couldn ’t be touched by
Parliament, a law that has laid down the relation between England and Scotland as well as the
foundation of this new Parliament.
Various Scottish judges insist heavily on the specific nature of Scottish law and legal
system. They give a warning on any constitutional adventure which would lead the UK
Parliament to try to abolish this distinctiveness of the Scottish Parliament.
The absolute nature of Parliamentary supremacy is an English feature and there is no reason
to assume that the new Parliament created by the Treaty of Union adopted all the
characteristics of the English Parliament and not the Scottish one.
The Parliament declined to give his opinion on what the court should do if they were faced
with such an issue (legislation trying to remove the Scottish Parliament, …) but he insisted
that one should not equate English law with the Scottish one. He basically says he won’t give
the answer to the question because we cannot foresee what the Scottish Parliament would do
if the UK Parliament did that.
There is a difference between what the UK Parliament could do according to a legal point of
view and a political one.
 They think that maybe this form of law should be respected by the new Parliament.
In the Act of Union, there are several provisions expressed in very strong terms seeming to be
entrenched but are in fact not because they can be repealed from a legal point of view. But at
the same time, in these acts, there are certain things that are important for Scotland, such as
provisions protecting the Scottish legal system (protecting the separate existence of
Scottish courts, the legal system, the fact that the private law of Scotland is not to be altered
except for the evident utility of the Scottish people).

II. EU membership

EU legislation alters the relationship between the courts and the Parliament, which
lies at the heart of Parliamentary supremacy.
 There is an impact of the EU law even after Brexit.

A. The impact of EU membership

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The UK joined what was known as the EEC by the treaty of Brussels in the 1970s, and this
membership was accompanied on the domestic plan by the enactment of the ECA 1972. The
UK is a dualist state : international obligations have no effect in the domestic legal order
unless they are incorporated into the legal order by an act of the UK Parliament. Therefore,
the purpose of the ECA was to be a gateway (= passerelle) to incorporate EU law into the UK
legal system.

EU legislation is divided between :

- Primary legislation : the founding Treaties, CFRUE  they have a direct effect, they
create legal rights and obligations and can be relied on by individuals in court without
the need of further domestic legislation.
- Secondary legislation : Treaties provisions, regulations , directives  they have no
direct effect, directives are needed in order to give them effect. The EU is a particular
legal order with constitutional rules of its own. Incorporation in domestic law is needed
to create rights and obligations on individuals.
These rules are enforced by the ECJ and a rule that is particularly important is the primacy of
EU law.

The EU Law is supreme according to the CJ

Example :

- Van Gend en Loos case (1963): « the Community constitutes a new legal order of
international law for the benefit of which the States have limited their sovereign
rights ».
- Costa v/ ENEL (1964) : « the law stemming from the Treaty (…) could not (…) be
overridden by domestic legal provisions, however framed »
- Internationale Handelsgesellschaft, 1970: « the validity of a community measure
(…) within a Member State cannot be affected by allegations that it runs counter to (…)
the C° of that State or the principles of national constitutional structure ».

B. Potential conflit with the doctrine parliamentary supremacy

In 1972, the question arose as to whether it was possible for the Parliament of the day to
guarantee in the ECA (European Communities Act) that future parliaments would not legislate
in contradiction to EU law.
But such a bold undertaking was not possible and was not clearly stated in the statutes that
future parliaments wouldn't be able to do that.
What the statute did through a few sections is to give effect to EU legislation past,
present as well as future and also give courts instructions about the application of
EU law, including future legislation and the impact that it may have on domestic legislation :
- Section 2 (1) : gives effect to EU legislation and provides that so far as EU law has
direct effect, it shall be enforceable in UK courts. This is the manner in which
individuals are able to use EU legislation in order to bring cases before UK courts.
- Section 2 (2) : provides, for the making of order in councils/statutory regulations, to
implement non-directly effective EU law. When it comes to non-directly effective EU
law, it’s possible to use delegated legislation in order to give effect to these rules.
- Section 2 (4) : provides that national legislation must be construed and have effect
subject to directly effective EU law. UK legislation must be interpreted in the sense of
EU law. There must be rules of interpretation in order to give direction to judges so that
they try to reconcile domestic legislation with the EU one.

C. Conflict with domestic legislation post of 1972

Legislation enacted before the ECA 1972, which would be inconsistent with EU
legislation, can be considered as impliedly repealed (implicitement abrogé) by the
effect of the ECA.

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The problem is with the legislation passed after 1972 : what happens if an act passed on this
date is in contradiction with EU law?
 Courts will first try to interpret domestic legislation to give it a meaning consistent
with EU law (although it’s not always possible).
When it’s not possible, can provisions of the ECA 1972 be impliedly repealed by a conflicting
later Act :
- Should the courts follow the instructions of the 1972 Parliament?
- Or should they decide to follow the directions given by the ECA 1972 ?

These questions were answered in a few cases :

 R v Transport Secretary, ex parte Factortame case (1990): Companies argued

that the UK was in breach with the EU legislation. Indeed, in EU legislation, there is the
prohibition of treating citizens differently due to their nationality  discrimination on
ground of nationality and violation of the freedom of the establishment. The House of
Lords said that it was important to refer the question of the interim relief to the ECJ
(because according to English law, it was not possible for a court to grant an interim
relief (mesure proviso ire) and to suspend the effects of the Act). It asked if the English
position was in contradiction of EU law and whether interim relief should be grounded
even if internal order refused to do that.

ECJ’s position
ECJ ruled that :
Interim relief must be granted to protect directly enforceable rights of the companies under
EU law. If domestic legislation prevents such an order from being granted, domestic
legislation must be set aside. Any rule that prevents a court from granting interim relief must
be set aside.
We are talking about disapplying an Act of Parliament  the traditional view says that the
courts cannot question the validity of an Act of Parliament, but the ECJ tells the courts to do
the exact opposite.
When it comes to EU law, these cases say that Parliamentary supremacy is qualified by the
primacy of EU law.

 This is huge when it comes to parliamentary supremacy = it would be impossible for

future parliaments to pass legislation contrary to the EU law.

D. Domestic legislation cannot be in contradiction with EU law

The doctrine of implied repeal doesn’t apply to the ECA 1972 as the courts follow its rules
over the later act which contradicts the EU law. The ECA cannot be impliedly repealed as it is
a constitutional statute.
 Indeed, there is a difference between constitutional and ordinary statutes :
Lors Hope said in the H V/ Lors Advocate case (2012) that « only an express provision to
that effect could be held to lead to such a result. This is because of the fundamental
constitutional nature of the settlement that was achieved by the Scotland Act. This in itself
must be held to render it incapable of being altered otherwise than by an express
enactment ».

Constitutional statute : conditions the legal relationship between citizen and state in some
general, overarching manner, or enlarges or diminishes the scope of what we would now
regard as fundamental constitutional rights.

The ECA 1972 was a constitutional statute, therefore it could not be impliedly repealed.
But this also means that express repeal remains available as long as Parliament uses express
and unequivocal rules.

E. ECA 1972 and Factortame : revolution or evolution

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It’s a revolution according to some people and among them, there is Sir Wade who
considered that the 1972 Parliament has succeeded in binding future Parliaments in
the field of EU law (« Sovereignty – revolution or evolution ? », Law Quarterly Review, 568).
We may agree on the fact that Parliament is no longer supreme in the area of EU law as any
conflicting domestic legislation will be set aside by courts.
Lord Neuberger in Miller case said that « in constitutional terms, the effect of the 1972 Act
was unprecedented… the 1972 Act effectively constitutes EU law as an entirely new,
independent and overriding source of domestic law… »
 This quote is slightly excessive as EU law is not exactly independent, but it is indeed an
overriding source.

Accepting the doctrine of the supremacy of EU law restricts the absolute authority of the
Parliament to legislate as it is wants in the areas affected by EU law. This qualification is
limited to legal matters, domains which are affected by EU law.
 The EU being omnipotent is not true.
With its institutions, EU only have the powers that have been transferred to them by treaties,
their powers are limited by their competences. When it comes to areas not affected by EU
law, Parliament is not affected by the ECA and therefore, remains supreme.

Even if membership to EU law is important for the doctrine of Parliamentary supremacy, an

act that is contrary to EU law remains, it is just set aside in the case, it’s not removed.

There are numerous examples of « duty to disapply » in which EU law is applied over the
domestic legislation (example : Benkharbouche v. Secretary of State for foreign affairs, 2017).
We can still consider that it is a revolution : it’s not possible for the Parliament to limit its
own supremacy according to some people.

Besides, others consider that it’s not a revolution but rather an evolution because it’s a
rule of construction imposed by the Parliament to the courts contained in the ECA 1972,
stating that courts must read statutes in a way which is compatible with EU law. This rule of
interpretation leads to a priority given to EU law over domestic law and EU law prevail. This is
only valid as long as the ECA is not repealed.
 The essence of parliament is present : express repeal is still possible.

But whether it’s a revolution or simple an evolution, Parliament remains supreme in the
sense that express repeal is still available. Parliament can repeal the ECA 1972, an act
giving its force to EU law in the UK, which preserves the UK supremacy.
 The EU is not omnipotent.

1. The possibility of withdrawal from EU membership

A few years ago, it was considered unlikely that Parliament would ever regain its power when
it came to EU law until 2009 when the treaty of Lisbon introduced article 50. This article
states that withdrawal from the EU is a possibility.
 Before that, everyone considered that membership of the EU was permanent.

With the withdrawal of the UK from the EU, the ECA will probably be repealed. It seems that
maybe an amendment is going to be accepted to mention the role of Parliament in voting of
the deal negotiated by the UK Parliament.

2. Impossibility of seeing domestic law under certain circumstances ?

There are certain questions that are still unanswered. In Miller, Lord Neuberger was saying
that EU law is an overriding independent source of law but in 2 recent cases, the judiciary has
been less enthusiastic when it comes to EU law and started questioning its power.

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Some judges considered that there are some cases in which domestic law cannot be set
aside to make EU law prevail under certain circumstances.
Example :
- R (Chester) v/ Secretary of State for Justice case (2013): it’s about the prisoners
voting ban and this ban was considered a violation of the ECA. A court in Scotland
issued a declaration of incompatibility based on the HRA 1998 simply following the
clear J of the European courts saying that the act was violating EU law. The issue went
to the Supreme Court which declined to allow the appeal, not because it considered
that UK law was complying with the ECHR, but simply because a declaration of
incompatibility had already been issued by a court and it doesn’t see why it should re-
issue it. The Supreme Court said that EU law didn’t apply to the case because the
right to vote and the franchise is a reserved matter for the member state and
the EU has therefore no competence to rule on (not true though, because it
occurred later). the Supreme Court avoided the problem saying that EU law doesn’t
apply.

Lord Mance took the advantage of this case to state something in obiter dictum. He said is
that certain circumstances entitle courts to disapply an act of Parliament contradicting the UK
law, notably when it leads to a situation where the intention of the Parliament is not
clearly understood. If the parliament's intent is very clear despite the supremacy of the EU
act, the parliament's intention must prevail.

These questions are always a matter of the UK law in the end. If we had to solve this issue, we
could not rely on Factortame because it’s about another matter. In fact, behind this issue, the
conflict is about 2 constitutional acts and not EU law and UK law.

Lord Neuberger and Mance added : « It is certainly arguable (and it is for UK law and
courts to determine) that there maybe fundamental principles, whether contained in other
constitutional instruments or recognized at common law, of which Parliament when it enacted
the EC Act 1972 did not either contemplate or authorize the abrogation ».
 When enacting the ECA 1972, Parliament didn’t intend to repeal the Bill of Right (set
out certain basic civil rights).
“Important insights into potential issues in this area are to be found in discussion by Laws LJ
in Thoburn, although the focus there was the possibility of conflict between an earlier
constitutional and later ordinary statute, rather than, as here, between two constitutional
instruments, which raises yet further considerations”.

The EU also faces challenges, and this allows the EU to change :

 EU (withdrawal) Act 2018, section 5 (as amended by the 2020 Act) :
1) The principle of the supremacy of EU law does not apply to any enactment or rule of
law passed or made on or after IP completion day.
2) Accordingly, the principle of the supremacy of EU law continues to apply on or after IP
completion day so far as relevant to the interpretation, disapplication or quashing of
any enactment or rule of law passed or made before IP completion day.

 EU Act 2018, section 6

1) A court or tribunal :
a) is not bound by any principles laid down, or any decisions made, on or after IP
completion day by the European Court, and
b) cannot refer any matter to the European Court on or after IP completion day

2) A court or tribunal may have regard to anything done on or after IP completion day by
the European Court, another EU entity or the EU so far as it is relevant to any matter before
the court or tribunal.

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3) Any question as to the validity, meaning or effect of any retained EU law is to be
decided, so far as that law is unmodified on or after IP completion day and so far as they are
relevant to it
a) in accordance with any retained case law and any retained general principles of EU
law, and
b) having regard (among other things) to the limits, immediately before IP completion
day, of EU competences.

4) But :
a) the Supreme Court is not bound by any retained EU case law […]

 EU (Withdrawal Agreement) Act 2020 amends 2018 Act, section 6:

5A): A Minister of the Crown may by regulations provide for :
a) a court or tribunal to be a relevant court or (as the case may be) a relevant tribunal
for the purposes of this section,
b) the extent to which, or circumstances in which, a relevant court or relevant tribunal
is not to be bound by retained EU case law,
c) the test which a relevant court or relevant tribunal must apply in deciding whether to
depart from any retained EU case law…

4) (ba) : a relevant court or relevant tribunal is not bound by any retained EU case law so far
as is provided for by regulations under subsection (5A)

 Retained EU Law (Revocation and Reform) Act 2023

- Revokes all or part of 587 legislative instruments of EU- related origin and all
retained directly effective EU law
- Revokes (with exceptions) the modified principle of supremacy of EU law (which
governed the hierarchy of laws passed before the end of the transition period)
- Revokes the retained general principles of EU law
- Permits and encourages lower courts more often to depart from legacy case-law
of the CJEU…

III. Human rights Act 1998

The purpose of this act was to incorporate into the UK legal order some rights guaranteed by
EU law : it’s the idea of « Bringing rights back home ».The UK is one of the first state to
have signed and ratified the HRA but as it is a dualistic state, it was not possible, before the
HRA, for individuals to argue a case on the bases of the ECHR. That was problematic as on the
domestic plan, individuals couldn’t denounce a domestic case contradicting EU law but they
could still go before a European court and then get the UK to be condemned if the case was
won.

 The purpose of the act is to give the possibility for individuals to do that in front of
domestic courts instead of going in front of European courts.
But since the entry into force of this act, it’s subject to debate concerning its consequences
on Parliamentary supremacy and the eventual need to supplement it by a « British bill of
rights ».
 The big problem, when it comes to the HRA, is the power of the ECHR and the
interpretation it gives of the convention itself.
There’s the debate on the need to repeal the HRA but despite this, rights of civilians are still
protected with another act that is « a true British bill of rights ».

The HRA is not entrenched, although being considered a constitutional statute, but only with
an expressed repeal. When it comes to express repeal, a Commission was set up in 2011 in
order to investigate the question of a « British bill of rights » and ended up publishing a report
in 2012 where it explains that it’s possible to withdraw from the EU. The report was basically
divided into 2 opposite positions :
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 - The majority : in favor of a « British bill of rights », emphasizing the lack of « public
ownership » of the HRA

- The minority : disagreed with this argument and thought that the timing was not good
to consider such an important change. They considered that some members went too
far in their ideas, fearing that the report and the position of the majority may be a first
step towards considering withdrawal from the ECHR. It’s true that the Government,
during the elections, included into its manifesto a plan to repeal the HRA but now, both
the Government and the Parliament are going to be busy dealing with Brexit which led
the other plan to be put on hold.

There is a general problem with the UK before the ECHR. The ECHR does its maximum not to
disappoint the UK Parliament because having one of the funding members not respecting the
ECHR is a very bad message for the other members.
 The HRA is classified as a constitutional statute and is therefore protected from implied
repeal.
If Parliament wants to repeal the HRA, it should do so with expressed words. The HRA has
changed the relationship between Parliament and courts as it has given new powers to the
judiciary when it comes to reviewing acts of Parliament. But the powers given to courts by the
HRA are not as strong as the power that courts enjoy thanks to the ECA, 1972 (The
European Communities Act 1972 was the piece of legislation that brought the UK into the
Europe Union: it gives EU law supremacy over UK national law).

The mood has changed in the UK in the past few years when it comes to the ECA and the
HRA. At the beginning of the entry into force of the HRA, judges were enthusiastic about it.
But in the recent years, some of them started to consider that maybe, in the past, the
judiciary has been too keen (=excited and interested) in using the HRA and conventions rights
rather than for instance the Common Law. Therefore, some judges started to say that we
should first look at the Common Law rather than immediately using the HCA or HRA as it is
« alien law ». This also goes with a criticism of the European court case law.

- Section 2 HRA : It states that courts have the duty to take into consideration relevant
cases of the ECHR when dealing with a case before them. It’s different from what
happens to the ECJ because UK courts are bound by ECJ rulings but when it comes to
the ECHR, they just have a duty to take into consideration, which is not as strong
as to be bound.
The House of Lords and the Supreme Court have explained that when the ECHR is not
clear or hasn’t understood UK law, we can depart from it. This was, in the past, rather
exceptional and now it is becoming common for the UK to behave that way.

- Section 3 HRA : « So far as it is possible to do so, primary legislation and subordinate

legislation must be read and given effect in a way which is compatible with
Convention Rights ».

 The duty to interpret legislation in a way which is compatible with human right. It
requires courts to interpret legislation in compliance with convention rights. If there is a
contradiction, courts must try to read the act to make it compliant with convention
rights « so far as it is possible to do so ».

So where is the limit of interpretation and the limit of the power given to courts by the HRA ?

This power is important and goes further than the normal statutory interpretation. Example :

- Lord Steyn, in R v A (2001) explains this : « the interpretative obligation is a strong

one. It applies even if there is no ambiguity in the language… the obligation goes
far beyond the rule which enabled the courts to take the convention into account in
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 resolving any ambiguity in a legislative provision... section 3 places a duty on the court
to strive to find a possible interpretation compatible with convention rights ».
It means that the courts must work hard to try to find a way to reconcile the act with
the HRA.

- Lord Nicholls in Ghaidan v Godin-Mendoza (2004) said: « Section 3 may require a court
to depart from... the intention of the Parliament… 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… section 3… is also apt to require a court to read in words
which change the meaning of enacted legislation so as to make it convention
compliant ».

 The House of Lords interpreted the act, the court decided to make it compliant to the
ECHR and has to be read to maintain the survival of a same sex couple (private life),
domestic court decided to read the law to make it compliant to the convention.

The courts can stretch the meaning of the words of the statute and the intention of Parliament
so as to make it compliant with the convention but only to a certain degree. How far can it
go?
The limit is that section 3 doesn’t allow a meaning that is completely inconsistent with
fundamental features of legislation. Typical example :

- Bellinger v Bellinger case (2003): the House of Lords refused to interpret the
Matrimonial Causes Act 1973 which provides that a marriage is valid only if the
partners are male and female. At the time, it refused to interpret it to include
transsexual individuals, who were not considered as the new gender. The applicant,
born male but now female, was marrying a male. They are male and female ok but not
officially because birth certificate says that she’s a male. The House of Lords said that
it’s such a fundamental change that it can only be made by another act of Parliament,
it was not possible to interpret legislation. It cannot be the judiciary interpretation of
the statute law. Therefore, it is not possible for the Supreme Court to use section 3 to
interpret « male » and « female » and to effect that change, this would be legislation
instead of Parliament —> « Such fundamental change in the law, which would interfere
with the traditional concept of marriage and give rise to complex and sensitive issues,
should be made only by Parliament after careful deliberation and not by judicial
intervention ».

 We have the idea of separation of powers because if judges made the change, they
would go over their competence and step on the Parliament’s work. Later on, the UK
was condemned for the state of its legislation and therefore, the House of Lords
decided that it was necessary to issue a declaration of incompatibility with the MCA
1973. Since then, the law has been amended.

Section 4 HRA : When section 3 cannot be used because of an incompatibility between a

legislative provision and the convention of human rights :
- In relation to subordinate legislation, it is possible to crush it as being contrary to the
convention.
- In relation to primary legislation, in order to interpret the act to make it convention
compliant, courts may refer to section 4 (declaration of incompatibility).

This is what happened in the Bellinger case. The use of section 4 is not an obligation
though, it’s an option.
 Moreover, only superior courts (CA, SC and equivalent courts in NI, Scotland...) are
entitled to it.

Section 4 is therefore an important progress when it comes to the power of the judiciary
because it gives superior courts the power to review the content of an act of Parliament and
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to say that Parliament did something wrong. But once again, the courts are of course not
entitled to strike down an act incompatible with the act, contrary to the power they have with
the ECA.
The incompatibility of the act is a sort of a warning signal for the Parliament but it’s
not really efficient for the applicant if it's not to tell him to go in front of the ECJ.
The Parliament, after the declaration is issued, decides what to do with this declaration. It can
decide to:
- Remove the incompatibility
- To amend the law or not to do so.
For instance, when it comes to the prisoner’s right to vote debate, a declaration has been
issued but Parliament decided not to follow it.
As a whole, in most cases the Parliament followed the decisions of the courts with the sole
exception of the prisoner’s act to vote. It was considered by the Commission of British Bill of
Rights that the HRA has struck « a carefully crafted balance between the power of the courts
and the ultimate sovereignty of Parliament ».

The real problem of the HRA is not so much section 3 and section 4 but rather the relation
between UK courts and the ECHR.
The HRA is protected against implied repeal by a later act but not against the express one.
If inconsistency cannot be removed:
 The 2 incompatible laws exist simultaneously until the conflict is remedied.
 The provisions of the HRA remain valid as the Convention Rights are not superseded
(remplacé) by the terms of a later inconsistent act.
 At the same time, the provisions of the conflicting act remain valid as the declaration of
incompatibility does not affect the validity of the act.

According to the HRA, when the Government is introducing legislation before Parliament, it
must declare whether the bill is, according to the Government, convention compliant or if it is
unavailable to state that, it must still state that it wishes to proceed with the bill. In addition
to this, the Government may also result in derogation in cases of imminent danger for the
state. It allows countries to derogate certain rights in case of threats to the nation.
Nevertheless, there are some things that cannot be derogated (ex : torture).

Parliament can pass incompatible legislation:

 By oversight
 By express intention

Section 14 HRA (designated derogation): Allows the Government and the Parliament to pass
measures based on the existence of threats to the nation, which would normally not be
considered convention compliant. The Government tried to use a legal way to pass legislation
which would normally not be convention compliant.

IV. Parliamentary Supremacy and the Rule of law

A. Parliamentary Supremacy

The last qualification on the doctrine of Parliamentary supremacy can be found in what
Tomkins and Turpin call the « Common Law radicalism » : « Common law radicals believe that
the entire constitution, including the doctrine of the sovereignty of Parliament, is based on
the common law » (British Government and the Constitution, 2007).

A rule of Common Law could limit Parliamentary supremacy, which makes it not absolute.
Basically, the idea expressed was that if Parliament decided to do the inconceivable, such as
trying to abolish the judiciary, the courts may have to change their position towards the
Parliamentary supremacy and refuse to apply the act based on the defense of the Rule of law.
This was what Lord Woolf said, if Parliament « did the unthinkable » such as try to abolish
the judiciary … « then I would say that the courts would also be required to act in a manner
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which would be without precedent… there are even limits on the supremacy of Parliament
which it is the courts ‘inalienable responsibility to identify and uphold… ».
The supremacy of the Parliament is said to be a Common Law thing and have been
recognized by the courts during the glorious revolution.
 They could go against the Parliament if he did the inconceivable.

B. The Rule of law

The most important principle is not the Parliamentary supremacy but it’s the Rule of law. If
the 2 are in conflict, the Rule of law must prevail.
Lord Hope, in Jackson, said that « The rule of law enforced by the courts is the ultimate
controlling factor on which our constitutions are based ». In another case later, he stated
again that the rule of law requires that the judges must retain the power to insist that
legislation of that extreme kind is not law.
 Basically, there is some kind of extreme legislation that the judiciary must refrain from
considering as valid law.
Lord Steyn in Jackson :“…Supremacy of Parliament is […] a construct a common law. The
judges created this principle. If that is so it is not unthinkable that circumstances may arise
where the court may have to qualify a principle established on a different hypothesis of
constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review
or the ordinary role of the courts (…) new Supreme Court may have to consider whether this
is constitutional fundamental which even a sovereign Parliament (…) cannot abolish”

Lord Steyn (2006), “Democracy, the rule of law and the role of judges”, EHRLR, 243-253 :
“For my part the dicta in Jackson are likely to prevail if the government tried to tamper with
the fundamental principles of our constitutional democracy, such as five-year parliaments, the
role of the ordinary courts, the rule of law, and other such fundamentals. In such exceptional
cases, the rule of law may trumpnparliamentary supremacy”

Lord Carnwarth, in R (Privacy International) Investigatory Powers Tribunal [2019] UKSC 22 :

“…although it is not necessary to decide the point, I see a strong case for holding that,
consistently with the rule of law, binding effect cannot be given to a clause which purports
wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an
inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all
cases, regardless of the words used, it should remain ultimately a matter for the court to
determine the extent to which such a clause should be upheld, having regard to its purpose
and statutory context, and the nature and importance of the legal issue in question; and to
determine the level of scrutiny required by the rule of law”.

Traditional conception of Supremacy of Parliament challenged

 In modern UK, traditional conception is an oversimplification
Even if Parliament retains the legal power to expressly repeal constitutional statutes, there
are political constraints to take into consideration:
- Electorate
- Devolved nations
- International community

CONCLUSION / KEY POINTS :

The traditional concept : from a legal point of view, Parliament remains free to repeal
constitutional statutes, to pass legislation violating EU law, sometimes ECHR as well …
 But this conception is challenged as in the modern UK, it’s seen as an
oversimplification.

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Even if the Parliament retains the legal power to expressly repeal constitutional statutes,
there are political constraints to take into consideration as well as legal ones
(electorate, devolved nations, international community).

Traditional view :
- No legal limitations on legislative power of Parliament
- Courts cannot question validity of Acts of Parliament
- Parliament cannot bind its successors : Express repeal- Implied repeal

What is an Act of Parliament ? :

- “Enrolled bill/Act” rule
- Parliament Acts 1911 and 1949
 Jackson: Parliament Act 1949 and Acts enacted following Parliament Act
1949 are primary legislation
 Immunity from JR only applies to Westminster primarylegislation

Parliamentary Supremacy challenged

- Manner and Form limitation
- Was the Parliament born unfree ? Parliamentary Supremacy and the Act of Union

- Devolution
- EC Act 1972
- HRA Act 1998
- Common Law radicalism

Manner and form limitation :

- Can Parliament be bound as to the manner in which it legislates?
- Jackson and the different views of the Lords on the matter (obiter)
 Majority seems to adhere to the view that Parliament is bound by the
prohibition contained in the Parliament Acts but no consensus on other
points.

Devolution and Treaty of Union : political rather than legal limitation?

EC Act 1972
- Factortame and the duty to disapply conflicting UK legislation
- Doctrine of implied repeal not available for ECA 1972  Thoburn and constitutional
statutes
- Limitations on duty to disapply: Chester/HS2
- Limitation on parliamentary supremacy contingent upon EU membership, although
some effects persist : EU (withdrawal) Act 2018 as amended

HRA Act 1998 :

- Strong obligation to interpret legislation in compliance with Convention Rights (section
3)
- Scrutiny of courts on content of Acts (declaration of incompatibility) but courts cannot
strike down Acts of Parliament (section 4)
- HRA cannot be impliedly repealed

Common Law radicalism

- Rule of Law as a limitation on Parliamentary Supremacy

CM6 26/02

CHAPTER 3 : THE RULE OF LAW

(Lectures 17-18 : The Rule of Law)

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It’s an important principle. The problem is that there is an important controversy about what
the rule means. As lord Phillips said in an expertise before the House of Lords, the rule of law
is “not readily defined or readily understood” : it’s not easy to define and causes
disagreements.
Definition given by lord Neuberger, 2013 : « …the rule of law can mean different things. At
its most basic, the expression connotes a system under which the relationship between the
government and citizens, and between citizen and citizen, is governed by laws which are
followed and applied… but the rule of law requires more than that. First, the laws must be
freely accessible : that means as available and as understandable as possible. Secondly,
the laws must satisfy certain requirements; they must enforce law and order in an
effective way while ensuring due process, they must accord citizens their fundamental
rights against the state, and they must regulate relationships between citizens in a
just way. Thirdly, the laws must be enforceable: unless a right to due process in criminal
proceedings, a right to protection against abuses or excesses of the state, or a right against
another citizen, is enforceable, it might as well not exist. ».

Section 1 : Definitions

2 definitions exist :
-Formal conception (narrow conception of the rule of law) : Paul Craig explains that it
« focuses on the manner in which the law was promulgated, the clarity of the ensuing norm,
and the temporal dimension of the enacted norm ».
-Substantive conception (broader conception) : focuses rights associated with the rule of
law. It assesses the legal system in the light of these rights. Therefore, legal rules complying
with these values are considered as good laws while legal rules which do not comply with
these rules are considered as bad laws. There is a debate about the content of the legal rule
in this definition.

I. The formal conception

—> The formal conception : The idea of the rule of law is an ancient idea. Taking the general
sense, the idea is that a country is ruled according to a set of principles rather than left in
anarchy and that all powers in society should be subject to rules. Both the government and
the people should respect these rules. What is interesting is that this idea is applied both to
the governed and the government. We can find a trace of this idea in the « Entick v
Carrington » case (1765) : 2 kings messengers were sued for having unlawfully entered a
house and seized papers. The messengers had a warrant which claimed that this was illegal.
The goal is that the government must be subject to law so as to protect the people from
arbitrariness.
This definition was clearly stated by Dicey in the XIXth. For him there were 3 key elements to
the rule of law :
-1 element : « no man is punishable...except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is
contrasted with every system of government based on the exercise by persons in authority
of wide, arbitrary, or discretionary powers of constraint » —> The government is under
the law, people are protected by it from its arbitrariness. The judiciary is independent to
decide whether the law has been bridged (cf Entick v Carrington case).
-2 element : « equality before the law, or the equal subjection of all classes to the ordinary
law of the land administered by the ordinary law courts » —> The law is expected to be
prospective and not retrospective (individuals should not be punished for an act that was not
illegal when they committed it).
—> Criticism : The government is sometimes given discretionary powers today but Dicey is
right about the fact that the wider the discretionary power is, the bigger the risks of being
arbitrary are.
-Everyone is not identical before the law, but everyone is subject to it.
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There is also the idea that there shouldn’t be a separate system of law for the government :
their actions shouldn’t be judged by a specific, different category of law (≠ France). But at the
same time, it has to be nuanced because there is a division between judicial and
administrative matters within the system at the high court level.
-It is recognized that public bodies may enjoy some privileges.
Clearly for Dicey, this quotation was a criticism against the French system as in France there’s
a separation with the risk of giving the government a preferential system.
-3 element : « the C° is pervaded by the rule of law on the ground that the general principles
of the constitution (ex : right to personal liberty...) are with us the result of judicial
decisions determining the rights of private persons...”; “thus the C° is the result of the
ordinary law of the land » —> Dicey considered that the best way to protect human rights
is via the Common law.
-Nowadays, this assertion is debatable because the Common law is inferior to the acts
of Parliament so the protection that it provides is not stronger than those who are provided by
the HRA for example.

According to J. Raz, the Rule of Law consists of the basic principle of legality meaning that
government’s actions must be authorized by law. But also, it refers to values about the formal
characteristics of a legal system. The idea is that the law must be able to guide human
conduct. To fulfill this idea, we need:
-The principle of legality
-Law should be prospective
-Law should be relatively stable
-Law should be general (no discrimination), open (accessible), clear and certain (it’s hard
to have that because of the growing quantity of regulations)
-Judges should be independent and the courts should be accessible
-Litigants should be offered a fair hearing (respect for the rules of natural justice) : the
application of legal rules must be in accordance with the rules of natural justice, they must be
protected against biassed judiciary.
-The discretion which law enforcement agencies possess should not undermine the purposes
of the legal rules : the discretion must not become arbitrariness.
—> It’s a more sophisticated definition of the Rule of Law but it stays focused on the formal
characteristics that the legal system must have.

Even with this limited conception of the Rule of Law, it’s not easy for a democratic state to
comply with them. Another issue with the formal conception of the rule of law is that it does
not ensure that the substance of the law meets the needs of the people. This is what Raz
explains when he says that the rule of law « is not to be confused with democracy, justice,
equality…, human rights of any kind or respect for persons or for the dignity of the man ». He
agrees that the law should be just, but he denies that the concept of the rule of law should be
concerned with the content of the legal rules because according to him, if it did, the concept
would lose any useful function. Basically, the idea is that if one wants to use the Rule of Law
in a substantive way, then one should provide a comprehensive theory of justice. There are
different conceptions of what a fair justice is. The formal conception of the rule of law is not
concerned with the content of the rule of law, it ’s not related to the question of whether laws
are good or bad. The rules are valid legal rules enacted following the agreed procedure and
therefore if they’re valid rules they must be obeyed whatever their content is.
This can be problematic, and Bradley and Ewing (1997) expressed their worries : « if all that
the rule of law means is that official acts must be clothed with legality, this gives no
guarantee that other fundamental values are not infringed ».
According to the formal definition of the Rule of Law, South Africa for instance under the
apartheid is a system that complies under the Rule of Law. And this is also what Lord Steyn
(2006, European Human Rights Law Review) says : « strict adherence to legality is no
guarantee against tyranny ».

C. The substantive conception

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Faced with the inherent limits of the formal definition of the Rule of Law, scholars defend
another conception which is a substantial one. Under this broader definition, the formal
conception is a necessary condition for the rule of law, but they think that there’s more than
the formal definition to the idea of the Rule of Law. All the elements presented by Dicey and
Raz are necessary but not sufficient in order to give a correct definition of the Rule of Law.

According to this idea, the Rule of Law must capture the rights that individuals are entitled to
in a judge society. It means that the question is to know what the powers of the government
must be and in particular the limits, they’re not only concerned by the question to know if the
government followed the procedural rules to take a certain decision. The government’s
powers must be limited not only by the procedural requirements of fairness, but also by
substantive boundaries about human rights and civil liberties which allow the control of the
government’s powers (= A system complies with the Rule of Law if the legal rules are “good”
+ protect substantive rights).
Lord Bingham expressed that point of view, refusing that the rule of law is to be understood in
its formal sense only : « A state which savagely repressed or persecuted sections of its people
could not... be regarded as observing the rule of law, even if the transport of the persecuted
minority to the concentration camp... [was] the subject of detailed laws duly enacted and
scrupulously observed » —> The rule of law must be conceived in the broader sense and not
a limited one.

—> Criticism :
-There is the problem of knowing what these fundamental rights are. There’s an agreement
on the idea that the rule of law means more than adherence to the formal conception but
there is no general consensus about what should be precisely put in the substantive one.
-Logically, the rule of law may impose limits constraints not only on the executive but also on
Parliament. It is feared that this substantive conception may lead to parliamentary supremacy
being replaced by a judicial supremacy (problematic in the UK). Therefore, this may raise
certain questions as to the democratic legitimacy of such a change. Here we find again the
conflict about the Common Law radicalism.

Section 2 : The Rule of Law and the Judiciary

Several judges contemplated the idea, refusing to apply an act of Parliament in case of breach
of the Rule of Law by the Parliament. Comments in the Jackson and Axa cases were made in
obiter dictum by Lord Hope :
-Jackson : « the rule of law enforced by the courts is the ultimate controlling factor on which
our constitution is based »
-Axa : « the rule of law requires that judges must retain the power to insist that legislation of
that extreme kind is not law which the courts will recognize ».

There are 2 different positions about the rule of law. In the middle we have :
-Lord Mance and Lady Hale based their reasoning on an « administrative law » approach in
order to decide that the AG’s decision should be crushed because he didn’t sufficiently explain
why he disagreed with the upper tribunals. It is true that the freedom of information Act
states that the AG has the right to issue a certificate if he has reasonable grounds to disagree
with the balance of interests made by the upper tribunal. But then, he has to give clear
reasons for his position. But the test would be a « higher hurdle than mere rationality » which
is the judicial review ground.
Pas compris

There are different conceptions of the Rule of Law even if we saw several cases where the
idea of the Rule of Law had been used by judges. Now in the UK, the HRA had given
individuals a new protection for their civil liberties and human rights. This also gave courts
more power in relation of acts of Parliament although, the limits given to them by the HRA
(not possible to strike down an act of Parliament no matter what, they can only declare
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incompatible an act), they enjoy even less power than what they have with the EU law thanks
to the ECA 1972.
The practical application of the Rule of Law is in fact achieved by way of judicial review which
has been reinforced thanks to the HRA. The grounds on which an Act of Parliament can be
reviewed has been enlarged. Courts had been quite enthusiastic with this new rule. Ex :
-In the A v Secretary of State for the Home Department case (2004) : the UK tries to find a
way to deal with people who are objectively dangerous as they can’t send them back to their
homeland if they risk to be mistreated. They decided to create the indefinite detention of non-
nationals suspected of involvement in terrorist activities. This was problematic because
normally we cannot detain a person for an indefinite period of time when you don’t have a
valid legal ground. The Anti-Terrorism, Crime and Security Act of 2001 :
-Indefinite detention of non-nationals suspected of involvement in terrorist activities
-Necessary to make a derogation order
-Majority of Lords (Lord Walker dissenting) : derogation does not comply with art 15
ECHR
-Indefinite detention infringes arts 5 and 14
-Declaration of incompatibility in relation to s.23
This provision was reviewed in light of HRA. Therefore, there was a declaration of
incompatibility in relation to section 23 but the prisoners stayed jailed as the government
didn’t follow the declaration at the beginning, but then they got released as the government
changed its mind.

The HRA has helped in changing the attitude of the courts towards protection of civil liberties
and the relationship of the courts with the executive and with Parliament and it has reinforced
the power of the courts to uphold the rule of law in the broader sense, including the
protection of the human rights.
—>This is a good illustration because in the case we find statements of the Lords about the
ROLE and their powers based on the HRA.
For instance, Lord Bingham accepted that great weight must be given to the executive's
assessment of the existence of an emergency situation, but he refused the argument
developed by the AG's that the decision should not be within the short juridictions of the
courts.
The AG wanted to see whether the derogation of section 5 was strictly required regarding the
situation. Basically, the AG was saying the decision whether or not the measures of the
government are compliant with the article is the work of the executive, the judiciary should
not be able to do that. The House of Lords rightly disagreed with this opinion and recalled that
the ECA submitted the control to the ECHR, which means that UK courts are also entitled to
do that. Lord Bingham answered back by saying that « the function of independent judges
charged to interpret and apply the law is universally recognized as a cardinal feature of
the modern democratic state, a cornerstone of the rule of law itself. The AG is fully
entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise
judicial decision-making as in some way undemocratic. It is particularly inappropriate in
a case such as the present in which Parliament has expressly ...required courts…to give
effect to Convention rights and has conferred a right of appeal on derogation issue… the
1998 Act gives the courts a very specific, wholly democratic, mandate ».

—> Nowadays, a democratic state is not only defined by the fact that there are elections, the
right to vote, checks and balances are necessary as well. The role that the courts are now
playing is based on the HRA. « 1998 Act gives the court… » so it is wrong to say that it’s
undemocratic for the courts to review the decisions taken by the executive and the
Parliament.
Lord Nicholls understood in its substantive conception that « indefinite imprisonment without
charge or trial is anathema in any country which observes the rule of law » And Lord
Hoffmann followed by declaring that power of indefinite detention : « is not compatible with
our constitution. The real threat to the life of the nation,…, comes not from terrorism but from
laws such as these ».

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—> The HRA is connected to the broader definition of the Rule of Law. This is a kind of middle
way because it gives the possibility for the courts to avoid being in a direct conflict with
Parliament :
-Give to the courts the power to affirm that the rule of law means more than mere adherence
to the principle of legality
-Acts of Parliament are not struck down
-Courts can use S.4 rather than the extreme option of refusing to apply an Act of Parliament
on the basis of the Rule of Law
-Declaration of incompatibility may lead the Government/Parliament to react and remove the
incompatible provision

CHAPTER 4 : THE SEPARATION OF POWERS

(Lectures 19-21 : The Separation of powers)

This principle has attracted less attention in the UK than the other principles (parliamentary
supremacy, Rule of Law) because it was thought that it wasn’t a key element of the British C°.

Section 1 : Classical definition

I. Basic definition

The idea of separation of powers is that the different functions of the state should be
performed by different bodies within the state so as to prevent abuses of powers. Lord Acton
said that « power tends to corrupt, and absolute power corrupts absolutely. Great men are
almost always bad men » (1887).

D. Doctrine of separation of powers

The father of the doctrine, Montesquieu gives the main explanation of this doctrine : « When
legislative power is united with executive power in a single person or in a single body…
there is no liberty because one can fear that the same monarch or senate that makes
tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is
not separate from legislative power and from executive power. If it were joined to legislative
power, the power over the life and liberty of the citizen would be arbitrary, for the judge
would be the legislator. If it were joined to the executive power, the judge could have the
force of an oppressor. All would be lost if the same man or the same body…exercised
these three powers… » (The Spirit of the Laws, 1748). Within the State, the 3 functions are:
-The legislative function : to make laws/enactment of general rules, determining the powers of
public authorities and regulating the conduct of citizens
-The executive function : to initiate policies and implement legislation, conduct national affairs
-The judicial function : to solve legal disputes according to legal rules

Therefore, a simple version of the idea of the separation of powers entails that these 3
functions should be carried out by 3 distinct bodies :
-The Legislature (Parliament)
-The Executive (government, and the executive in the wider sense : police, civil service...)
-The Judiciary (the courts)
—> The philosophy behind this doctrine is that this principle should prevent abuse of power
and this protection should be guaranteed through a system of « checks and balances » (J.
Locke) so as to ensure no branch has a complete autonomy. The idea is that the institutions
should be able to check each other but at the same time, it shouldn’t turn into a undue
interference of one branch in the function of another’s. Even for countries with strict

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separation of powers (USA), it’s never absolute as one could think that the government in
such a case wouldn’t function correctly and the system would be paralyzed.
Absolute separation is neither possible nor desirable : it’s rather an ideal than a precise
account of the allocation of powers within the state.

According to Bradley and Ewing, the term « separation » may have 3 meanings:
-The personnel should not belong to more than 1 branch of the State.
-A branch of the State should not perform another's branch function.
-Although a power should be able to exercise some kind of control over another power
(checks and balances), there should be a kind of protection against undue interference from
one power to another power’s function.

Section 2 : Separation of powers in the UK

How do the UK constitutional arrangements fit with these elements?

In the UK, the separation of powers is not strict : it’s flexible, there are many overlaps in
personal and functions. But at the same time, there are constitutional conventions and legal
rules to prevent powers from being abused and to ensure the protection of the different
bodies of the State (state’s institutions) to protect them from undue interferences from other
bodies of the State.
Separation of powers has been reinforced thanks to the Constitutional Reform Act of 2005.

I. Parliament and Executive

A. Overlap in personnel ?

In the XIX’s, W. Bagehot highlighted « the close union, the nearly complete fusion, of the
executive and legislative » (The English Constitution). This journalist was talking about a
fusion. It is excessive because there are 2 distinct bodies. But there are still overlaps between
the Executive and Legislative : members of the government are members of the Parliament in
the UK, in order to ensure the accountability of the government in front of the Parliament. At
the same time, there are certain rules employed in order to prevent an undue interference
with the functioning of Parliament by the Government. Indeed, there are statutes saying that
no more than 95 members of the government must seat in the House of Common (House of
Common’s disqualification Act).

The power that the government exercises on the Parliament will be reinforced in a certain
way because in the forthcoming future, the number MP’s is going to be reduced from 650 to
600. This was decided in 2011 but now there is a review to organise this system and normally
in 2020, the number will decrease. But the number of MPs' members of the government will
not be changed so that will increase the power of the government in the Parliament.
Other members of the executive power (police officers, military forces, ...) are disqualified
from membership of the House of Common.

B. Overlap in function ?

The government is involved in the lawmaking function. It initiates the public policies that
should be and these decisions are going to form the basis of the legislative agenda of the
government although it will be for Parliament to pass legislation.
The political domination exercised by the government on the House of Common is reinforced
by the fact that members of government are members of the House of Common, allowing the
government’s bills to be adopted by Parliament.

In addition to this, the Executive is involved in the enactment of legislation through delegated
legislation under the authority of Parliament : Parliament authorizes the Executive to pass
legislation but under its scrutiny and the scrutiny of courts. Delegated legislation can be
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controlled and, if necessary, crushed by them. It’s now controversial because it became huge.
Thanks to the Henry VIII clauses, a member of the government could change a primary
legislation if the Parliament allowed him. It’s controversial too.

Conclusion on relations between Parliament and government :

This separation between the Parliament and the government is not a strict one, it’s flexible.
Ministers are members of Parliament because they are accountable to Parliament. The
political control exercised by the House of Commons on the government is limited.
The balance of powers has shifted towards the government who dominates the Parliament.
The House of Commons retains the weapon of the motion of no-confidence against the
government. This is a way of guaranteeing a certain independence for her but at the same
time, this tool is rarely used. It is possible to rebel against the government but there are
political consequences.
When it comes to the overlap in functions, as a matter of law, the law-making function is in
between the hands of the Parliament although the political reality is different. When it comes
to the function of the scrutiny of the government’s action, it is performed by the Parliament.
But the political system is again different in the way it performs this power. A study shows
that in the past year, Parliament has been less docile than it was in the 50’s and the 60’s.

C. Parliament and Judiciary

A. Overlap in personnel ?

-Full-time Judges are disqualified from membership of the House of Common (and from sitting
and voting in the House of Lords).
-Former situation of the Law Lords who were members of Parliament and exercised judicial
function.

Things have changed thanks to the Constitutional Reform Act of 2005. There used to be
partial overlap between the House of Lords as a chamber of Parliament and the appellate
Committee of the House of Lords which was the highest court of the land.
—> There is now no longer an overlap in personnel : all full-time judges are disqualified from
membership of the House of Common (Disqualification Act, 1975). There used to be a
problem with the judges who were law Lords (members of the House of Lords) and members
of the appellate Committee of the House of Lords (members of Parliament + senior judges).

B. Overlap in function ?

1. Parliament and judicial function

When it comes to a potential overlap in function, the judicial powers of the House of Lords
have now been transferred to an independent Supreme Court (judicial function of the
Appellate Committee of the HL —> transferred to the SC).
There is a marginal overlap in function when it comes to the power of Parliament to enforce
its own privileges and to punish those who go against it. Parliament is protected from
interference from the Judiciary on the contrary because courts cannot interfere in
parliamentary proceedings. There is also another rule known as the sub-judice rule according
to which Parliament should refrain from interfering or prejudicing the judicial process :
members of Parliament should refrain from mentioning cases which are still active before UK
courts during debates.

2. Courts and law making function

When we talk about the law-making function, we may say that courts are, to a certain extent,
performing a sort of law-making functions because they are responsible for developing
Common Law. This is an important power which can change the rights protected by the

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Common Law and given to the citizens (ex : « R. v/ R. » case (marital rape exception : no rape
between husband and wife), 1992).

Judges accept the proper limits of their functions and have a subordinate law-making power.
In the case « Pettitt v Pettitt » of 1970, Lord Reid stated that « It is now widely recognized
that it is proper for the courts in appropriate cases to develop or adapt existing rules of the
common law... I say in appropriate cases... [in] cases...which raise issues which are the
subject of public controversy … it is not for the courts to proceed on their view of public policy
for that would be to encroach on the province of Parliament ».
Judges develop the Common Law but they also know that they cannot interfere with the
ordinary function of Parliament —> impact of the HRA.

Conclusion on relations between Parliament and Judiciary :

-In terms of personal, it is now complete.
-In terms of function, judges make the law but not in the same way that Parliament passes
legislation and obviously, Common Law is inferior to statute law. When it comes to statutory
interpretation, judges are cautious not to go against the Parliament.
Parliament is protected against interference from the courts :
-art.9 Bill of Rights
-courts cannot strike down Acts of Parliament
-Judicial decisions may be modified by legislation
-Tenure and independence of senior judges protected by statutes : the judges may only
be removed by the Crown on an address from both Houses (happened once since 1700)
-Law and custom protects judiciary against criticisms and interferences (ex : rules
regulating debates, the sub-judice rule : parliament cannot interfere in the judiciary process).

III. Executive and judiciary

A. Overlap in personnel ?

-Courts are composed of independent judges

-Former office of the Lord Chancellor : Lord chancellor was a Minister and the Head of
Judiciary in EW and a senior judge (+ he presided over debates in the House of Lords)
-Impact of Constitutional Reform Act 2005

B. Overlap on functions ?

Judicial functions must be performed by independent and impartial courts or tribunals. There
should be no overlap between executive and judicial functions. It could be considered as a
breach of art.6 ECHR and this principle is the key of separation of power. Because of this idea,
following several decisions of the ECHR, certain functions in the British executive have been
changed in order to comply with art.6 and more generally the idea of the separation of
powers. Ex :
-The former role of the Home Secretary in fixing the tariff (compulsory part of criminal
sentence). This decision used to be made by the Home Secretary and it was problematic
because it was contrary to art.6 of the convention. The role of the Home Secretary was
therefore removed.
—>This is the result brought by the « Stafford v/ the UK » (2002) and the « R (Anderson) v/
Secretary of State for the Home department » (2002) cases. Now, the tariff is decided by the
sentencing judge.
-The Royal prerogative of Mercy (judicial function) exercise on the advice of the minister.

On the other hand, there is also a kind of overlap in function through the involvement of
judges in public inquiries or royal commissions which are launched by the Executive on
certain sensitive or controversial subjects. This is problematic because the judges in question
could be considered too closely involved in the operation of the government and it’s also

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feared that it could have an impact on their independence. But they could also be called to
give their opinion on a matter that could be, later on, the subject of a judicial issue.

Conclusion on relations between Executive and Judiciary :

• The Executive is involved in the appointment of judges : the Queen formally appoints them
on the advice of the Prime Minister. Judges stay in office during good behavior and are subject
to removal based on a decision made by The Queen on an address made by the Parliament.
As long as they’re behaving well, there is no reason for them to be removed. Thanks to this
particular status, judges in particular in the highest position are protected from removal from
the executive. The Executive cannot arbitrarily dismiss judges.

The role of the executive in the appointment process of senior judges has been limited by the
constitutional reform Act 2005, amended by the Crime and Courts Act 2013. Indeed, it was
felt problematic that Ministers were heavily involved in appointing judges while judicial review
of administrative action were becoming a very important part of the judicial activity. This is
why the involvement of the Executive in this process has decreased thanks to the
constitutional reform Act 2005, the operation of which came recently under review. And in
this review process, the House of Lords Constitution Committee started an inquiry and wrote a
paper on the issue in 2012. It contains several recommendations, including :
-To reduce further the involvement of the Lord Chancellor of senior judges (those below
the High Court) : Everybody agrees on this part.
-To involve the Lord Chancellor in the appointment of senior judges : it was met with
strong opposition. This is why it was dropped.
The proposal made by the House of Lords Constitution Committee was not necessarily
negative. At first glance, we might think it’s not correct. But at the same time, some
considered that it was a good way of introducing a degree of democratic legitimacy and
experts stressed the fact that when one looks at the judiciary in the UK, one may consider
that there is an issue with diversity. Therefore, some experts question the appointment of
judges and stress the fact that the current procedure does not allow for a diverse branch.
—> Since the enactment of the constitutional reform Act 2005, judicial appointments are still
formally made by the Queen on the advice of the Executive but on the recommendation of
selection commissions which are mainly composed of judges. In particular, there is an
important one : The Judicial Appointment Commission is involved for instance in the selection
of the Lord Chief Justice, in the appointment of the Head of Divisions in the different courts
and of the lord Justices of Appeal.
There’s a panel determining the selection process and the Lord Chancellor can accept just like
he can reject or require the panel to reconsider the selection made. For judges who are at a
lower rank, the Lord Chancellor has a more limited role. He used to have the power to refuse
the recommendation made by the judicial Appointment Commission in relation to a judicial
appointment below the High Court but at some point, the Lord Chancellor could no longer
reject the proposal made by the Judicial Appointment Commission. He had to accept the
decision made by the Commission. Now, with the constitutional reform Act 2005, this power
to accept, reject or require reconsideration has been transferred to the Lord Chief Justice.
Therefore, the Lord Chancellor is now only involved in the appointment of senior judges.

• When it comes to the independence of the Judiciary, it’s worth mentioning that ministers
must refrain from criticizing judges and judgments in general. The constitutional reform Act
2005 contains provisions stating that the minister and the Lord Chancellor must uphold the
independence of the judiciary and must not seek to influence any particular judicial decision.
This duty is also mentioned in the ministerial Code. Unfortunately, it’s too common that
ministers criticize certain judicial rulings.

• When it comes to the influence that the Judiciary has on the Executive, can we consider that
the Judiciary in a way encroaches upon Executive functions?
One of the functions of the Judiciary is to control the legality of the actions of the Executive.
Under the Rule of Law, it’s fundamental for an independent Judiciary. This could be seen as
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interfering with the operation of the government, but this is not equivalent to the exercise of
the Executive function. This is neither an interference with Executive’s functions. The control
by Courts of the Executive actions is not a performance of Executive activity but an
expression of the guarantee of the Rule of Law.
The Queen case is concerned with the Child Poverty Act 2010. Within this act, section 9
requires the Secretary of State, within a year of the enactment of the act, to publish and lay
before Parliament a strategy explaining the measures proposed for the purposes of meeting
certain targets concerning child poverty. In this case, the problem was that the Commission
was not created by the Secretary of State and it decided to create its own strategies.
Therefore, it was not open to the Secretary of State to ignore the will of Parliament and a
declaration was issued in order to remind her to follow the will of Parliament and create that
Commission.

Judicial is concerned with the legality of the decision-making process and not the political
merits of a decision. Therefore, judges are cautious about review the legality of administrative
actions as they know that this is not their role nor action to substitute their own views for the
views of the decision maker.
There are certain matters which are considered by the judges as non-justiciable. In some
areas, they will refuse to rule on the issue. This was seen in the « Council of Civil service
Unions v/ Minister for the civil service » where Lord Roskill stressed this issue of the limits of
the judicial powers by saying that there were certain subjects that couldn’t enter the judicial
process.
Judges know that they have to be careful when reviewing Executive actions as they’re not
members of the Executive, they have to limit themselves to the legality of administrative
decisions.
Despite this caution, in the past few years thanks to the HRA, the control exercised by the
courts on the administrative action has increased because the manner in which the decisions
are reviewed on the basis of the HRA is not the same as it is done on the basis of the Common
Law or other statute law. When there is an issue of human rights, the control of the courts is
more sophisticated and intrusive, this is a certain revolution in judicial review. Thanks to the
HRA and to the proportion test, the control of the courts is stronger in this area. This is why
the government has tried to limit judicial review and especially in the access to courts by
citizens.
In the Supreme Court, there are different profiles of judges. Lord Sumption is very cautious
when it comes to the control of administrative action. Recently he made a speech in which he
made a strong case against judicial activism in which he urged the Judiciary to respect the
boundaries between the 2 powers using the principle of separation of powers. He supported
the doctrine of due deference in order to protect « constitutional separation of powers ». He
was very critical of the development of Judicial review prompted by the enactment of the
HRA.

C. Separation of powers and constitutional changes

It all started with the Blair Government which recognized the need to guarantee separation of
powers in a modern democracy. The issue of the independence of Judiciary was central to this
political agenda. The formal Government recognized that certain institutions in the UK C°
raised concern as to their compliance with the principle of separation of powers. 2 institutions
were problematic :
-The office of the Lord Chancellor
-The Appellate Committee of the House of Lords
The problems with these 2 institutions were solved by the constitutional reform Act in 2005
under the influence of the ECHR. The institution of the Lord Chancellor was rather unique to
the UK C° because the Lord Chancellor was part of the 3 powers of the State:
-He was a member of the Government
-He was a member of the House of Lords
-He could sit in the Appellate Committee of the House of Lords as a judge (responsible for the
judicial appointments as he was the head of the judiciary in England and Wales).
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—> The government considered that having a member of the Executive sitting as a senior
judge could be considered as a breach of the art.6 ECHR. To avoid this to be in front of the
ECR, the government stated that « it was no longer appropriate for a senior judge to sit in
cabinet or for a Government minister to be our country’s senior judge ». Therefore, the
government decided to « bring such anachronistic and questionable arrangements to an
end » (Lord Falconer).

This was nevertheless met with strong opposition and this is why the government decided to
reform rather than abolishing the institution. The main points of the reform are that :
-The Lord Chancellor is no longer the Head of the Judiciary in the EW
-The Lord Chancellor is no longer the Speaker of the House of Lords
-The Lord Chancellor does not longer sit as a judge
-The Lord Chancellor’s power to appoint judges is now limited
-The Lord Chancellor’s Department has ceased to exist and is replaced by the Ministry of
Justice.
—> Some feared that the reform could endanger the independence of the Judiciary as the
Lord was also acting as the defense of the Judiciary as he was head of the Judiciary and a
member of the government. Some are also concerned because now that the formal links
between the Lord Chancellor and judiciary have been severed, he doesn’t need to be trained
anymore.

There were constitutional conventions, the purpose of which was to protect the principle of
separation of the powers and to ensure that the Appellate Committee of the House of Lords
although formally a parliamentary functioned as a Court. First, non-judicial members of the
House of Lords never took part in the judgments and on the other hand, the Law Lords
recognized that it was necessary for them to refrain being involved in controversial political
issues debated in Parliament, in particular on bills on which they may have to adjudicate later
on. The Law lord recognized that they could be disqualified from sitting as a judge if they had
expressed an opinion on a subject matter. This was felt insufficient by the Blair Government,
it was felt necessary that the functional separation of the powers was accompanied by
physical separation.

—> This is why a Supreme Court was created and the formal Law lords were to serve as the
first justices of the new Supreme Court created by the constitutional reform Act 2005 and
which entered in function oct 2009.
At the start of the Supreme Court, 2 Law lords decided not to join it and therefore new justices
were appointed and since 2009 there have had several appointments. This means that the
justices of the Supreme Court no longer sit and vote in the House of Lords. This reflects the
importance of an independent judiciary for the functioning of a democracy and in the
understanding of the separation of power. This importance of an independent judiciary has
been considered by the courts themselves as something important, in particular since the
separation of powers between the Executive and Parliament is flexible.

• Ex of the courts stressing the importance of the principle in the UK C° :

-DUport case : Lord Diplock said « it cannot be too strongly emphasised that the British
Constitution, though largely unwritten, is firmly based on the separation of powers » .
-courts have stressed the importance of the separation of powers
-Judiciary is particularly concerned with the independence of the courts
This is also illustrated by Lord Steyn :
-« it used to be said that the doctrine of separation of powers is a comparatively weak
principle in the English constitution. As between the legislature and the executive that
is still so…But the separation of powers as between the legislature and executive, on the one
hand, and the judiciary, on the other hand, has been greatly strengthened... »
-« under our constitution the separation of powers protecting judicial
independence is now totally and effectively so. This constitutional principle exists not to
eliminate friction between the executive and judiciary. It exists for this reason only: to

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prevent the rise of arbitrary executive power ».

• There are other judges who are more cautious such as J.Sumption who said : « for those
who are concerned with the proper functioning of our democratic institutions, the judicial
resolution of inherently political issues is difficult to defend … It is genuinely difficult to
separate the determination of a policy's lawfulness from an assessment of its merits. It
requires a large measure of restraint that can only come from the judges themselves. The
traditional word is ‘deference’ which, as other have pointed out, has unfortunate overtones
of forelock-tugging cravenness. But it is a perfectly acceptable word, so long as one
remembers that the judge is not deferring to the minister. He is deferring to the
constitutional separation of powers which has made the minister the decision-
maker, and not him ».

—> It’s a fine balance to find between control of the executive and respect of the executive
that could be respected by the Rule of Law and principle of separation of powers.

The separation of powers isn’t the one who attracts the most when it comes to the principle of
British constitutionalism. The separation of powers is rather flexible in the UK but the role of
an independent judiciary is also central to this principle as well and this has been reinforced
by constitutional reforms in the past few years, in particular the constitutional reform Act
2005.

(Lectures 22-26 : Devolution)

CHAPTER 5 : DEVOLUTION : PAST, PRESENT AND FUTURE

The UK is classified as a unitary state. But at the same time, it’s based on different nations
and in the past few years even though the UK is still a unitary state, the devolution process
has changed the country without turning it into a federal state. The devolution has increased
the autonomy given to the different states. In the UK, because of history, there are important
differences in.

Section 1 : The road to Devolution

I. Kilbrandon report

The idea of devolution first emerged in the 70’s but it’s in the 90’s that the process
accelerated. In the 70’s, the idea of devolution for Scotland and Wales was investigated by
the Labour government. A royal commission was set up and the Kilbrandon report was
published in 1973.
• In this report, the Commission first identified 3 types of devolution:
-Administrative devolution : the deconcentration of functions within governmental
hierarchy.
-Executive devolution : goes further, comprises the transfer of subordinate policy making
powers to the devolved institutions, to the region/local institutions. But in this system, the
determination of major policies and primary legislation remain in the hands of the central
government.
-More sophisticated devolution / legislative devolution : this entails the transfer of
powers from the central government to the devolved institutions, the powers to determine
policies but also to enact primary legislation (not in all areas).
—> But still, in the devolution system there is no relinquishment of sovereignty. This is
stressed in the various acts of devolution that despite the transfer of powers, the UK
Parliament remains sovereign.
• The Commission then asked itself the question of whether it was time to move from
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administrative devolution to a more advanced system and if the question is yes, which region
is ready for this move ? The members of the Commission agreed that it was necessary to
restore public confidence in the government to introduce a devolution scheme. Should it be
an executive type of devolution ? Legislative ? Should it be applied to Scotland exclusively ?
These kinds of questions were asked, and they didn’t all agree.

D. Labour government proposals

The government decided to set up elective assemblies in Scotland and Wales with different
powers. It was decided to give legislative powers to the Scottish assembly and to give
executive powers to Wales.
Even in the 70’s, there was already a difference made between Scotland and Wales. But the
difference was also based on the different histories of the nations and their relationship with
England. Scotland has a different system with its own courts and so on, which could also be a
support for the asymmetry in the proposal. In addition, the government ruled out the
possibility of creating an English assembly. The issue of England within the devolution
settlement will be revived later on because there is a feeling of unfairness within England for
various reasons.
-In 1978, bills on Scotland and Wales devolution were passed by the UK Parliament, but it was
a condition of each bill that they should not take effect unless approved by 40 % of the
electorate in Scotland and Wales. This was not reached, and the Acts were therefore
repealed. During the referendum, 52 % of those voting were in favor of the devolution
process, but they only represented 53 % of the electorate.
—> The first attempt of devolution failed.

But the idea of devolution remained alive because there was nevertheless a good amount of
support for this idea. In the 80’s and 90’s, the support grew stronger and the Scottish
electorate felt more and more let down by the central government (differentiation between
the political color of Scotland and the central government).
-To take this into consideration, a reunion was convened, composed of Scottish MPs, local
authority’s representatives, members of churches… They gathered to work together on an
agreement of a scheme for an assembly in Scotland. In 1995, the convention finally agreed
on a scheme for devolution and in its manifesto, the labour Party agreed on the creation of a
Scottish Parliament based on the agreement reached in the convention. When they won the
elections in 1997, the Labour Party presented its proposals.
-For Wales, it was different, but they also introduced a bill about devolution for Wales.
The 2 proposals were submitted to a referendum in Scotland and in Wales in 1997. In
Scotland, 74.3% people were in favor of creation of Scottish Parliament. In Wales, 50.3% were
in favor of the creation of a Welsh Assembly.
—> Bills became Act of Parliament in 1998 and we have as the basis of devolution in Scotland
the Scotland Act 1998 and in Wales the Government of Wales Act 1998.

Devolution in Northern Ireland :

Northern Ireland was united with Great Britain by the Act of Union (1801) and the Irish
Parliament was united at the time with the British Parliament. These acts were amended when
the Irish Free State separated from the UK, in 1922. In 1937, it became a Republic and left the
Common Wealth in 1949.
There was a system of devolution from 1920 to 1972 with the Government of Ireland Act
1920.
In 1972, direct rule from the central government was restored. Before 1998, there were
attempts to try to restore a system of devolution for Northern Ireland, but they failed because
of a lack of agreement between the communities there until 1998. In fact, devolution is also a
part of the peace process in Northern Ireland overall and is the result of the Belfast
Agreement or « Good Friday » Agreement of the 10th April 1998, which also explains why the
process here is different from Scotland and Wales. The Northern Ireland Act of 1998 marks
the start of the devolution process.

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—> The devolution process is, because of everything we say, therefore asymmetrical and is
not fixed : it is an ongoing process.

Section 2 : Devolution, an ongoing process

I. Scotland

Scotland : the purpose of the Scotland Act of 2012 (amend the Scotland Act 1998) was to
implement the recommendation of the Calman Commission which made a report in 2009. The
report concluded that devolution was a success and it sought ways to enhance devolution in
Scotland, in particular through the extension of fiscal autonomy. Following these
recommendations, a Scotland bill was introduced in 2010 and received royal assent later (1
May 2012). This act adds new powers, takes away some powers to the legislative competence
of the Scottish Parliament and transfers powers to the Scottish Executive renamed Scottish
government. The Scotland act 2016 was made in order to implement the Smith Commission
recommendations, created in order to fulfill the promises made by David Cameron (Prime
Minister at the time) after the referendum on the Scottish independence.

A. The Scottish referendum on independence

The Scottish National Party (SNP) used to be a minority in the Scottish Parliament. But in 2012
it won a landslide victory at the 2011 election and became the major one, being free to
implement its political agenda (= have a referendum on Scottish independence). One of the
key promises was to hold a referendum on Scottish independence.
But the issue was that doing this was complex, in particular because it raised some
constitutional problems (= organize a « legal » referendum). As the House of Lords
Committee on Constitution stressed in a report of February 2012 on the issue of
independence : « It is a fundamental principle of the constitution that, irrespective of any
party’s political mandate to form a Government, all governments must act in accordance with
and subject to the rule of law. That the Scottish National Party won an overall majority of
seats in the Scottish Parliament in 2011 gives it a considerable political mandate to
pursue its agenda of advocating independence for Scotland, but as the Scottish Government
it must do so lawfully ».
Both, the UK government and the Scottish one published consultation papers laying out their
positions on different issues, questions :
-The power to hold the referendum on the independence legally
-The nature and design of the referendum.

1. The power to hold the referendum on the independence legally

The UK government position was quite clear : neither the Scottish government nor the
Scottish Parliament had the competence to hold a referendum on the Scottish independence.
In the Scotland Act, there is a list of subjects which are reserved to the UK Parliament and
among them, there is the question of the union with the rest of the UK. Therefore, a
referendum on independence falls into this category. But at the same time, the UK
government recognized that the SNP had the possibility to pursue this political role
(democratic political mandate) and proposed a way to do that referendum. 3 options were
available:
-S.30 order in council conferring on Scotland Parliament legal power to pass an Act providing
for a referendum
-UK Act of Parliament providing for a referendum
-Amendment of the then Scotland bill
—> The first one was chosen.

Nevertheless, the Scottish Government agreed that unless the Scotland Act was amended,
the Scottish Parliament didn’t have the power to organise a referendum asking the question :
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« Do you agree that Scotland should be an independent country ? ». So they thought that by
changing the words of the question, then they will be able to do it. But even with another
wording, it’s still about the independence of Scotland and is therefore a reserved matter.
Another additional problem is that a referendum asking the second question would deliver
independence, but the beginning of a process leading to independence means that we end a
second referendum in order to drag the independence.

—> Without amendment, the Scotland Act 1998 doesn’t confer the legislative power on the
Scottish Parliament to pass legislation with the purpose to organise a referendum on
independence. Therefore, the House of Lords Constitution Committee also supported the
proposal made by the UK government about section 30 in order to be made to confer clear
competence of the Scottish Parliament to legislate for a referendum on Scottish
independence.

2. Second problem : the nature and design of the referendum

It was agreed by the UK and Scottish governments that it must be fair and clear, should lead
to a clear answer. Concerning fairness, it’s true when one asks a question in a particular way
one may favor a particular answer. There are studies demonstrating that asking a question
such as « do you agree that… » may lead the electorate to answer yes. This is why it’s
important to agree on a correct wording.
In addition to this, there is the Political Parties, Elections and Referendums Act 2000 stating
that the wording of referendum questions in the UK is a matter for the electoral commission.
But in theory, the Commission is not involved in a referendum in a particular part of the UK.

There was an additional problem about the question of deciding whether or not there should
be another question on the referendum ballot paper on « the devolution-max ». This was not
favored by the UK government because they didn’t want the 2 issues to be mixed and they
considered that increasing devolution was a reserved matter because there are fiscal
implications linked to this kind of decision. The government and the Houe of Lords
Constitution Committee were not in favor of a referendum with 2 questions but a single clear
one.
With all these problems to solve, an agreement was found by the 2 governments : Edinburgh
Agreement, 5th October 2012. The Governments agreed that the referendum should :
-Have a clear legal base
-Be legislated for by the Scottish Parliament
-Be conducted to command the confidence of parliaments, governments and people
-Deliver a fair test and a decisive expression of the views of people in Scotland and a result
that everyone will respect
The Agreement was also on the role of the Electoral commission. It uses section 30 to give
legal basis to the referendum Scotland Act 1998 (Modification of Schedule 5) Order 2013/242
—> Section 5 A : « (1) Paragraph 1 does not reserve a referendum on the
independence of Scotland from the rest of the United Kingdom if the following
requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other
referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than 31st December 2014.
(4) There must be only one ballot paper at the referendum, and the ballot paper must
give the voter a choice between only two responses ».

The union with the rest of the UK is still a reserved matter but there is an exception to hold a
referendum for Scottish independence under certain conditions. The legal problems were
solved and after that, the debates began with several papers published by the SNP and the
UK government, each promoting their own view :
-SNP was for Scottish independence : It said that Scotland would have a codified C°
(constitutional convention under the auspices of a new elected Parliament in 2016 in order to

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enact a written C° but at the same time, Scotland wanted to keep ties with the UK (currency
and the monarchy)) and stay within the EU.
-A contrario, the UK Government was against independence :
-It insisted on the benefits of Union and flexible devolution and stressed the risks and
uncertainties of independence
-As far as Scotland is concerned, they wanted to be independent but at the same time
stay close to the UK so it’s quite contradictory.
—> In fact, The Scottish Independence Referendum 2013 was passed. There was growing
support for a « yes » vote which led the government to promise more devolved powers for
Scotland.
The question asked was : « Should Scotland be an independent country ? », which is more
neutral. The referendum results are 53 % in favor of the “no” to independence. This explains
the Scotland Act 2016, as the delivering of the promises made was necessary.

The Smith Commission was set up to investigate the matter. Its report was delivered in nov
2014 and supported more powers to be devolved to the Scottish institutions in the fiscal area
and in response to the report, the government laid before Parliament a Command paper (janv
2015). The Scotland Act 2016 approach 2 subjects :
-There is a mention of Scottish Parliament and government as permanent institutions and a
codification of the Sewel Convention. It is symbolic to have it codified but apparently is has no
legal effect in terms of securing this Convention by the UK Parliament.
-More powers are devolved to Scotland : abortion law, equal opportunities, game machines…
This Act also gives control to the Scottish Parliament to its own electoral system and more
fiscal autonomy devolved to the Scottish institutions.

B. The Scottish Parliament

The Scotland Act 1998 sets up in its part 1 :

-A unicameral Parliament : 129 members of the Scottish Parliament (73 elected from single-
member constituencies by the « First past the post » system and 56 on the basis of
proportional representation (8 regions returning 7 members each)). They are elected for a 5
years term unless there is an early dissolution of the Parliament.
The system is very complex, and it was made to avoid the SNP becoming the majority party
(fail). MPs are elected on the basis of the additional member system.

There is now a new section, section 63A included by the Scotland Act 2016 : « The Scottish
Parliament and the Scottish government are a permanent part of the UK’s constitutional
arrangements ». The purpose of this section is to signify the commitment of the Parliament
and government of the UK to the Scottish Parliament and government.
It’s also mentioned that the Scottish Parliament and government can only be abolished on
the basis of a decision of the people of Scotland voting in a referendum. The result is not
binding on Parliament from a legal point of view, but in a political point of view it’s harder to
ignore the clear point of view of people. Devolution is a permanent thing unless there is an
express contrary will of the people of Scotland.

When it comes to the core of Scottish devolution, the Parliament enjoys legislative
competence. It has the legislative power on various powers with the exception :
-Subject matters listed in the schedule 5 of the Scotland Act (ex : International relations,
defense, Immigration and nationality, civil service, …). But, within reserved matters there can
be exceptions : in the reserved economical, fiscal policy, there is an exception allowing the
devolution of certain local taxes to the devolved institutions.

-Schedule 4 contains enactments that cannot be amended (modified) by acts of the Scottish
Parliament or subordinate legislation : HRA, ECA, most provisions of the Scotland Act, …
Changes to schedule 4 and 5 can be made based on the section 30 of the SA, having the
consent of the 2 Parliaments. Therefore, everything that is not reserved to Westminster is
devolved to Scotland: judiciary and court system, police and prisons, agriculture, health,
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fisheries, sport, art, social housing… The Scotland Act had guaranteed the transfer of new
subjects to Scotland : abortion law, law on gaming machines…

—> It’s a sophisticated devolution, giving Scotland a lot of powers. But even if the legislative
competence of the Scottish Parliament is important, it’s not a supreme parliament because its
legislative competence is limited. This is made very clear by section 28 (8) which recalls that
the competence of the UK Parliament to make laws for Scotland is not affected by the act :
« But it is recognized that the Parliament of the United Kingdom will not normally legislate
with regard to devolved matters without the consent of the Scottish Parliament ». Only the UK
is supreme and if it wanted to legislate on a devolved matter, it’s possible to do so.
As a matter of convention though, the UK Parliament doesn’t legislate on devolved matters
without the prior consent of the Scottish Parliament : this consent takes the form of a
« legislative consent motion ». This is quite regularly used (≈ 100 motions/year).
The Scotland Act 2016 has codified the Sewel Convention and amended section 28 of SA 1998
to add a 28(8) which is basically the Sewel Convention « but it is recognized ». When the bill
was passed, there was controversy about the effect that this codification might have on the
nature of the rule. Some were worried that this had changed the nature of the convention and
courts could rule on a subject that is no longer a convention but a legal rule. Although the
convention remains a political rule, even included in an act, courts cannot give rulings and
decide a sanction of a convention’s breach.

Legislative competence of Scotland : a bill becomes an act when it receives Royal Assent. Its
competence is constrained, meaning that an Act of the Scottish Parliament is not valid if it’s
enacted outside the legislative competence of the Scottish Parliament. This is clarified by
section 29 Scotland Act, which lists the conditions that need to be met by the Scottish
Parliament in order to produce valid legislation. An act of the Scottish Parliament is
considered as outside the legislative competence of the Scottish Parliament if :
-It is contrary to EU law of Convention rights
-It is in breach of the restrictions in schedule 4
-It would remove the Lord Advocate from his position as head of the criminal prosecution and
investigation of deaths system in Scotland
-The Parliament has legislated extraterritoriality effects
-The Parliament has legislated on reserved matters

Scrutiny and review of Act of the Scottish Parliament :

-S 31. Scrutiny of bills before introduction : (1) A person in charge of a Bill shall, on or before
introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would
be within the legislative competence of the Parliament.
-S.33. Scrutiny of bills by the Supreme Court : (1) The Advocate General, the Lord Advocate or
the Attorney General may refer the question of whether a Bill or any provision of a Bill would
be within the legislative competence of the Parliament to the Supreme Court for decision.

Most of the legal challenges on the validity of Acts of the Scottish Parliament are on the
Human Rights grounds. There are other difficult issues : it’s possible to challenge an act of the
Scottish Parliament on the basis that it’s not related to a reserved matter.
—> Imperial Tobacco Ltd case (2002) : it’s about the Tobacco and Primary Medical Services
Act 2010. This act is designed to prohibit the display of tobacco products at point of sell and
the use of vending machines. The challenge is that this act was outside the competence of
the Parliament because it was, according to the applicant, a reserved matter as it was related
to consumer protection. The respondent argued that it was related to a public matter, thus
falling into a devolved field. The court decided that the Act was related to a devolved matter
because the underlying purpose was to reduce the damage of health caused by the
consumption of tobacco products. It went up to the Supreme Court which decided that it was
within the competence of the Scottish Parliament.
—> AXA case (2011) : Lord Hope gave a certain precision about the challenges that can be
brought against an of the Scottish Parliament. In this case, this Lord explains that although
acts of Scottish Parliament are not immune from judicial review, we still cannot consider them
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as subordinate legislation. Lord Hope: « I would hold, …that ASPs are not subject to judicial
review at common law on the grounds of irrationality, unreasonableness or arbitrariness.... it
would also be quite wrong for the judges to substitute their views on these issues for the
considered judgement of a democratically elected legislature unless authorized to do so, as in
the case of the Convention rights, by the constitutional framework laid down by the UK
Parliament ».
Despite the fact that they’re not the product of a sovereign Parliament, they’re still the
product of a democratically elected Parliament.

C. The Scottish government

COMPOSITION : It’s headed by the first Minister (ajd N. Sturgeon (SNP)), and of ministers as
well as law officers. Ministers must be members of the Scottish Parliament. The first minister
is appointed by the Queen and the ministers are appointed by the first minister with the
approval of the Queen. The law officers are appointed by the Queen on the recommendation
of the First minister.
The functions formerly exercised by crown ministers of the UK were transferred to the
Scottish ministers. The Scottish Government as a whole must act in compliance with EU law
and convention rights. Scottish government is accountable to the Scottish Parliament. It must
resign if confidence of the Parliament is lost (s.45 / 47).

FINANCE : There is greater taxation power devolved by the Scotland Act 2012 and 2016.
There is still, despite the devolution, a secretary of State for Scotland with a seat in the UK’s
Government who has :
-The power to intervene to protect UK interests (section 35 and 58)
-The power to make an order prohibited to the presiding officer of the Scottish Parliament for
submitting a bill for Royal Assent if he has reasonable grounds to believe that the bill or its
provisions would be incompatible with UK interests or defense/national security or if the bill
will affect the operation of the law in reserved matters. Section 58 gives the secretary of state
the power to revoke subordinate legislation of the Scottish Parliament on similar grounds.
-Section 87 advises the UK Government on matters of Scottish law. Within the UK Parliament,
there is a Scottish affairs committee in the House of Common appointed to examine the
Committee examine the expenditure, administration and policy of the Scotland Office and its
associated public bodies. There is also the Scottish Grand Committee which includes all MPs
elected in Scotland constituencies. They meet to talk about matters relating to Scotland. the
meetings are really rare.

D. Wales

A. Catch-up devolution (Brigid Hadfield)

It started on a less ambitious basis but evolved. It starts with an executive devolution, then
progresses towards a legislative one. Now the plan is to move towards a reserved power kind
of devolution (like in Scotland).
Before the Government of Wales Act 1998, there was a limited form of devolution which may
be explained with the historical differences of Wales and Scotland with the UK. Statutory
delegated powers exercised by UK ministers in relation with Wales were devolved to the
National Assembly for Wales (60 members) and there was, at the beginning, no clear
distinction between this National Assembly and Executive.
In 1998, the National Assembly had no general power to make laws and was limited to the
making of delegated legislation only by transfer from the Secretary of States of Wales in a
number of fields listed in the 1998 Act.

B. Government of Wales Act 2006

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This first level of devolution is no longer the existing system though. It has changed thanks to
the Government of Wales 2006. It shows a shift towards legislative devolution, which was
achieved with the 2011 referendum.
In 2006, this Act improved the devolution process by accepting the devolution of legislative
powers. This process was progressive :
-1st stage : The idea was to confer wider powers to make subordinate legislation.
-2nd stage (now repealed) : The UK Parliament may confer wider legislative powers on the
Assembly in relation with specified subject matters falling within devolved fields. In order to
do so, it was necessary for the Parliament to pass legislative competence orders and the
National Assembly had to approve them. These measures were not valid if they were outside
of the competence of the Assembly, or not compliant with EU law or convention rights. This
stage was removed as we moved towards a full legislative devolution.
-3rd stage : The idea was to confer primary legislation powers to allow the National Assembly
to pass legislation within devolved fields. The powers could nevertheless not come into force
unless they were not proved by a referendum in Wales. This referendum was held on 3rd
March 2011: 35.4 % no but 63.5 % in favor. With this referendum, section 107 (1) enters into
force and now the Assembly may make laws to be known as the Act of National Assembly for
Wales.

C. Discussions and Acts

1. The Silk Commission and the Wales Act 2014

The Commission on Devolution in Wales, also known as the Silk Commission, started its work
in 2012. It drafted a report, published in 2 parts :
-The first in 2012 : it was about financial accountability, the thought of devolving more
financial matters to the national Assembly
-The second in 2014 : the powers to the National Assembly. This second part was included in
a debate which occurred in the aftermath of the referendum of Scottish independence.
The Wales Act of 2014 implements almost all recommendations of the 1st report (2012).
—> It shows a shift towards a reserved powers model of devolution.

2. The St David’s day process

After that, the process St David started, and a series of discussions led by the government
started with the main political parties in Wales to get the feeling about devolution in Wales. A
common paper was led before the Parliament in 2015, containing certain proposals in order to
enhance devolution for Wales : the idea is to devolve additional powers to Wales in the future
and to bring the same model of devolution to Wales as the one in Scotland to bring their
devolution at the same level.
There are 4 key commitments :
-To implement a « reserved powers model » for devolution in Wales
-Devolution of additional powers + power for the Assembly to regulate its proceedings
-To consider non-fiscal recommendations of the Silk Commission to see which could be
appropriate for Wales.
-To introduce a floor in the level of funding to the Welsh Government

D. Organization and competence

1. The institutions

The institutions are codified by the Government of Wales Act 2006, amended by Wales Act
2014 and 2017.
-The Welsh Parliament is also known as the Senedd. It has a 5 years term unless it gets
dissolved or if it fails in the process of nomination of the First minister. The Executive power is
now clearly distinguished from the Assembly. The Welsh Assembly is composed of the First

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minister and other ministers who are appointed from among the Assembly as well as the law
officers.
-The government, previously named « Welsh Assembly Government » was renamed « Welsh
Government ». It is composed of the First Minister’s + Ministers and deputy ministers +
Counsel General to the Welsh Government. It is accountable to the Assembly and must resign
if it loses the confidence of the Assembly.

2. The legislative competence of the National Assembly

The idea is to move towards a reserved matters devolution. Indeed, primary legislative
powers may be conferred on the Senedd within devolved fields. We have reached the final
stage with the referendum of 2011 (63,5% in favor). Schedule 7 (Government of Wales Act
2006, amended) lists the fields in which the Senedd can pass Acts now. Before that, it only
had the power to pass Assembly Measures.
—> This shows a shift to a « reserved powers » model of devolution.

The Wales Act 2017 had to simplify this complex situation, but it was criticized for being too
complex and failing to deliver reserved power model of devolution. The new model entered
into force in April 2018.
Regarding the legislative competence of the Senedd, the Wales Act of 2017 as changed :
-Before, S.108 (WA 2017) : « An Act of the Assembly was not law if outside the legislative
competence of the Assembly (repealed) ». So, to be within the legislative competence, an
act :
-Must be limited to Wales
-Must relate to devolved matters
-Must be EU law and Convention Rights compliant
-Now, S.108 : « An Act of the Senedd is not law so far as any provision of the Act is outside
the Senedd's legislative competence. A provision is outside that competence so far as any of
the following paragraphs apply :
-it extends otherwise than only to England and Wales
-it applies otherwise than in relation to Wales or confers, imposes, modifies or removes
(or gives power to confer, impose, modify or remove) functions exercisable otherwise than in
relation to Wales
-it relates to reserved matters (see Schedule 7A)
-it breaches any of the restrictions in Part 1 of Schedule 7B, having regard to any
exception in Part 2 of that Schedule from those restrictions
-it is incompatible with the Convention rights (…) ».

E. Northern Ireland

The devolution here is part of the peace process. On the 10th April 1998, the Belfast/Good
Friday Agreement was concluded and it provided the election of an Assembly for Northern
Ireland composed of 108 members at the time (now : 90).This agreement also provided a
ministerial council and a British-Irish one. It was also endorsed by strong majorities in north
parts of Ireland. The Northern Ireland Act 1998 was passed : S1 « NI is to remain part of the
UK until the electorate decides otherwise in a referendum ».

The Ireland Assembly is composed of 90 members since Stormont agreement (2014). The
members have a 5 year term (NI Act 2014).
This assembly was suspended in 2002 and restored in 2007.

A. Legislative competence

—> Matters excepted from devolution (s.4 and Schedule 2) :

-Matters not within the legislative competence of the Assembly and which cannot be
transferred to it other than by an Act of the UK Parliament, amending the Northern Ireland Act

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-The Crown, International relations, National Security, Defense, Immigration, main provisions
of the Northern Ireland Act 1998...
Certain matters are excepted from devolution. There are matters which are not within the
legislative competence of the Northern Ireland Assembly and they cannot be transferred to
the Assembly other than with an act of the UK Parliament amending the Northern Ireland act.
—> Reserved matters : criminal law, consumer protection…
-They are not within the competence of the Assembly, but they later may be transferred by an
order of the Council providing that the Assembly has passed a resolution requesting the
transfer of the powers.
-The act also mentions the fact that it’s possible for the Assembly to legislate on a reserved
matter with the consent of the Secretary of state.

—> Transferred matters : matters that are neither accepted nor reserved : Agriculture,
environment, education, arts and culture, health, social services, training and employment.
Assembly may make laws in transferred areas :
-Does not affect the UK Parliament powers to legislate for Northern Ireland (s.5)
-S.6 : Acts must be within legislative competence of Assembly

—> Scrutiny of bills: s.11 and 14

—> Review and devolution issues: s.79 and schedule 10

B. Executive

Power exercised on behalf of the Assembly by the First Minister, the Deputy first Minister and
other ministers :
-First Minister and Deputy First Minister are nominated by the Assembly to represent
respectively the largest and second largest political party
-Other ministers are appointed according to a formula dividing ministries between the main
parties on the basis of voting at the previous election
-Ministers must take the pledge of office which includes a « commitment to non-violence and
exclusively peaceful and democratic mean » and undertakings « to serve all the people of
Northern Ireland equally, and... to promote equality and prevent discrimination »

C. England and the process of devolution

A. The « West Lothian » question

It was Named after Tam Dalyell, a MP for West Lothian : « For how long will English
constituencies and English Honourable Members tolerate… at least 119 Honourable Members
from Scotland, Wales and Northern Ireland exercising an important, and probably often
decisive, effect on English politics while they themselves have no say in the same matters in
Scotland, Wales and Northern Ireland ? » —> Dalyell was an anti devolutionist.

The creation of a distinct English Parliament could be an option but we will be close to a
federal state. It will reinforce division within the union. But this idea was included in the
electoral manifesto in 2020.
To try to take this into consideration, at the time in the Scotland Act 1998, a provision was
inserted in the bill in order to provide for a further vote after 14 days if a bill which didn’t
relate to Scotland was carried on a vote where votes from members sitting for Scottish
constituencies were decisive.
The problem is about the imbalance between the different nations because of the devolution
process. There are different ways of solving this matter :
-Becoming a federal state
-Having a distinct separate English Parliament
-Trying to introduce procedures, conventions in the House of Common to guarantee that only
English MPs vote on English legislation : this one is retained.

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The coalition government committed to set up a commission on the issue in 2012 : The McKay
Commission.

B. McKay Commission

The goal of the McKay Commission was « To consider how the House of Commons might deal
with legislation which affects only part of the United Kingdom, following the devolution of
certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the
National Assembly for Wales ».

The commission reported in March 2013 (Report on the consequences of devolution on the
House of Commons) with several proposals :
—> The idea was to guarantee that in case we have legislation impacting England, the law
must be passed with the support of most of the English MPs. But the Commission rejected the
idea that only English MPs should be allowed to vote on ‘English’ Law The Commission wanted
English MPs to be heard. They recommended that views from England should be known on UK
bills with a “separate and distinct effect” on England.
—> They refused the idea of giving a power of veto to English MPs (no “double-lock”).
Instead, the Commission proposed a “double-count” of MPs. The idea behind this is to make it
more complex for Parliament to pass legislation affecting England only. A commitment to
EVEL (English vote on English law) included in the Conservative Party manifesto.

C. English votes for English law (EVEL)

The legislative process was amended. The the purpose is to allow England or England and
Wales MPs to consent with the provisions of the bill or to veto it if the said bill as a link with
English only or Wales. When a bill is introduced in the House of Commons, the speaker of the
house has to certify whether the bill or part of the bill must be dealt with by the new
procedure :
-England-only matters analyzed only by English MPs at committee stage
-Bills containing English / English + Wales provisions : new stage introduced between report
and third reading :
-Grand committee (English + Welsh MPs) to vote on these provisions (possible veto)
-Amendments (House of Lords) on English / English + Wales clauses : double majority
vote
Following this stage the process continues to the third reading for all MP’s .

—> After being suspended due to Covid, the procedure was withdrawn on the 13 of July 2021.
J. Rees-Mogg : « The West Lothian question has not had a very satisfactory answer since it
was posed by Tam Dalyell, who was a most distinguished Member of this House, but if there
were an answer, EVEL would not be it ».

CHAPTER 6 : THE UK PARLIAMENT

(Lectures 27-29 : The UK Parliament : composition)

Section 1 : The UK parliament : composition

The UK Parliament is a bicameral Parliament, composed of 2 chambers : The House of

Commons and the House of Lords.

The composition and powers of the 2 chambers are very different :

-The House of Common is the dominant chamber in the Parliament because it is a
democratically elected body. It’s also the Executive dominated Chamber : it has an impact on
the ability to perform its functions.
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-The House of Lords is a non-elected chamber and it is less powerful than the House of
Commons, it complements it. A reform about the non elected aspect was on the legislative
agenda of the Government. The issue of this reform is an ongoing debate because for many
this house seems to be an anachronism. A bill was introduced with that purpose, but he had
to face a setback and the bill was dropped in 2012. Indeed then, Prime Minister David
Cameron considered that it was not possible to secure a program motion attached to the bill
(= motion with the purpose of limiting the time that Parliament spends on a bill). He feared
that the debate on this proposal would be too long and therefore, he wanted a program
motion voted on the bill but was unable to do it and this is why he dropped everything.
I. Composition of the House of Commons

General elections in the UK determine membership of the House of Commons and determine
which political party or parties form the UK Government.

• Timing of the election : the Septennial Act 1715, amended by the Parliament Act 1911
states that the life of Parliament could not last more than 5 years and the fact that PM have
discretion to decide timing of elections, which was not the case before.

• The Fixed-term Parliaments Act 2011, now repealed gives 2 indications :

-The 5 year term
-The possibility to call early elections :
-they can be triggered by a resolution supported by a 2/3 majority of seats in the House
of Commons, meaning that the 2/3 can decide to dissolve the House and ask for a new
election although it’s risky as they don’t know if they can get reelected.
-The House can get dissolved if a motion of no confidence is voted within 14 days.

• The Dissolution and Calling of Parliament Act 2022 :

-It repeals the Fixed-term Parliaments Acts 2011
-It revived the prerogative powers of the Crown to dissolve and to call a new Parliament :
« The powers relating to the dissolution of Parliament and the calling of a new Parliament that
were exercisable by virtue of Her Majesty's prerogative immediately before the
commencement of the Fixed-term Parliaments Act 2011 are exercisable again, as if the Fixed-
term Parliaments Act 2011 had never been enacted ».

ELECTIONS :

-The Parliamentary Voting System of Constituencies Act 2011 seeks to reduce the number of
MPs from 650 to 600. But the plan to do that is for the moment postponed until 2018. It was
first planned to introduce this change in 2015 but it wasn’t feasible : the Liberate/Democrats
in the previous coalition Government where unhappy with the dropping of the bill concerning
the reform of the House of Commons. Therefore, they decided to pass an amendment on a bill
which was necessary to draw the new boundaries of the constituencies by postponing the bill.

-Another element concerning this act is the voting system of the House of Commons.
Following the 2010 general elections, changes to the voting were contemplated. The current
voting system is the « First past the post » system (= the contestant who gets the most vote
gets the sit). It’s a relative majority system.
—> It can be considered as unfair as it gives a disproportionate benefit to the party with the
largest chair of vote, often resulting in the exclusion of the smallest party although they got a
lot of votes. For instance, in 2014 the Lib/dems won 80 % of the vote but they got 2 % of the
seats. So, when the Lib/dems managed to become part of the coalition Government, they saw
an opportunity to promote a change in the voting system, favoring an « alternative vote »
system, more proportional, as they saw it as fairer. The conservative party was opposed to it.
Therefore, the compromise and agreement was to organise a referendum to an alternative
vote system, although it’s not what the Lib/dems wanted.
Alternative vote does not ensure a proportional system, it’s still a majority system but it
allows voters to have influence because this system requires the winning candidate to have
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received more than a half of the votes cast —> YOU NEED AN OVERALL MAJORITY OF THE
VOTES TO GET ELECTED.
-How does it work ? : The candidate needs an overall majority to be elected - If no
candidate gets an overall majority of first preference vote, the candidate of fewer preference
votes is elected and his or her supporters second preference votes are redistributed among
the remaining candidates and so on until one of the candidates achieves 50 %.
—> So, this proposal was submitted to referendum, held on 5th May 2011 and the question
asked was : « At present, the UK uses the “first past the post” system to elect MPs to the
House of Commons. Should the “alternative vote” system be used instead ? » There was a
majority against (68,7%) changing the system so the system remains as it was.

MEMBERS OF PARLIAMENT :
• Who can be elected as an MP : It concerns UK citizens, citizens of the Republic of Ireland and
certain commonwealth citizens provided they are 18 when they are nominated.
• Who cannot be elected as an MP : It’s provided by the House of Commons Disqualification
Act 1975 —> excess ministers, holders of public office and particular judges, Lords spiritual
(peers) mental patients, bankrupts, persons guilty of corrupt or illegal practices in relation to
elections, prisoners...
• The Recall of MPs Act 2015 provides for a recall petition to be triggered if a member of the
House is sentenced to a prison term or is suspended from the House for at least 21 sitting
days. This act allows a system to be implanted in order to recall an MP in the 2 cases
mentioned —> The speaker give notice to a petition officer who give notice to someone else
and then a petition is opened for a signature of 8 weeks. If during this period, at least 10 %
of eligible electors have signed the petition, the site would be declared vacant and a by-
election would be organized.

ELECTORS :
According to the Representation of People Act 1983 (amended in 2000), all UK, Irish and
Commonwealth over 18 citizens can vote as long as they comply with the necessary
formalities of registration and other formalities.
—> EXCEPTIONS :
• people detained for mental health diseases, legal incapacity
• people convicted of corrupt or illegal practices in relation to elections
• Prisoners : A general ban in the UK was voted. It was condemned by the ECHR.
> GC Hirst v/ the UK case (2005) : The ECHR decided that an automatic and total ban
was a disproportionate interference of the right of vote which is guaranteed by art.3 of the
first additional protocol of the Convention. The problem was not that it was banned but
because it was automatic. A court of Scotland decided that, considering this case, the UK law
was incompatible with this art.3 and agreed to issue a declaration of incompatibility based on
the Sect.4 of the HRA.
> Greens and M.T v/ the UK case (2010) : the ECHR had to condemn the UK as it didn’t
change the law. In this case the ECHR also urged the UK to change it as soon as possible. As it
wasn’t done, the ECHR keeps condemning the UK.
At some point, there was a draft bill trying to find a way to satisfy everyone : Draft Voting
Eligibility (Prisoners) Bill 2012-2013. There were 3 options:
-Entitle prisoners convicted to 6 months in jail or less to vote
-Entitle prisoners convicted to 4 years in jail or less to vote
-To maintain the ban as it was
The House of Commons voted a resolution in 2011, saying that it wanted the ban to remain.
• Members of the HL cannot vote on the basis that they are able to make representations
directly in Parliament and therefore, there is a case for them to vote to elect representatives.

II. Composition of the House of Lords

A. The history of the composition of the House of Lords

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This House is not democratically elected. Originally, it was composed of bishops (= évêque) of
the Church of England and hereditary peers (= pairs).
In 1876, Lords of Appeal in Ordinary (Law Lords) were created to rule the House. Later, the
Life Peerages Act 1958 was passed, allowing the appointment of individuals holding a peerage
for life. Therefore, their title would not pass to the next generation, in comparison to the
hereditary peerage.
The House of Lords enjoyed and still enjoys a very high reputation in terms of expertise and
independency. However, this House has experienced a gradual limitation in its powers in
order to favor the supremacy of the House of Commons as the elected chamber.

The reform of the House of Lords has been on the political agenda for more than a century,
starting with the Parliament Act 1911 with the purpose of restricting its powers. This Act was
seen as a temporary measure as the preamble of the Act stated : « the House of Lords as it at
present exists (with) a second chamber constituted on a popular basis instead of a hereditary
basis ».
Since 1911, there has been this ongoing debate on reforming the House.
There finally was a reform afterwards, the House of Lords Act 1999. After the 1997 general
elections, a proposal for reforming the House of Lords was made. In conduction of this debate,
a royal commission was set up in order to investigate the other changes that could be brought
to the membership of the House of Lords, in addition to the bill which was debated before in
the Parliament :
-It was the first stage of reform to make the House of Lords more democratic and
representative -As it was a sensitive subject, to make it easier for the bill to be accepted, the
Government of the day accepted the « weatherhill amendment » allowing 92 hereditary peers
to remain within the House of Lords until further reform was introduced, and a further
referendum was brought.
—> Thanks to this reform, the House of Lords bill became an act. With this act, it’s now
divided into 3 main categories of peers :
-Former category of the Law Lords (serving justices of the supreme court cannot sit and
vote in the House of Lords)
-Law spiritual (bishops, 92 hereditary peers)
-Life peers created under the Life Peerages Act 1958 (689 of peers, appointed by the
Queen on the recommendation of the PM). Within this category, 70 % are political peers (=
with a party affiliation) and 30 % are Cross-benchers peers (= no political affiliation).

We currently have 785 members of the House of Lords :

PARTY LIFE PEERS EXCEPTED BISHOPS TOTAL
HEREDITARY
PEERS
Conservative 225 47 272
Labour 169 4 173
Lib-Dem 76 4 80
Crossbench 149 34 183
Bishops 26 26
Non affiliated 35 2 37
Other parties 13 13
Lord Speaker 1 1
Total 668 91 26 785

B. The House of Lords reform

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1. The 2000 report

At the same time that the House of Lords Bill was debated, a commission was set up because
the House of Lords Act 1911 was considered as a first step only : The Wakeham
Commission. It published a report in 2000, who made 142 recommendations among which
the most important ones related to the composition of the House of Lords :
-This report commended to reduce the number of members to 550, including at the time the
Law Lords. It also wanted to include, in addition to bishops, all the representatives of the
different religious faiths present in the UK.
-The membership of the House of Lords was to be changed in order to make up the House of
Lords of a majority of appointed members and minority of regional elected members :
-A new statutory Appointments Commission, independent, would be responsible for the
appointments.
-The appointments should reflect the results of the general elections (each party’s
share votes) and with 20 % of cross-benchers (independent members).

After the publication of this report, the Government published a white paper entitled
Completing the Reform in 2011, in which it adhered to certain proposals by the Commission
but also departed from others. This paper was met with strong hostility and criticism
because :
-there was stronger support for a good proportion of the House of Lords to be democratically
elected.
-the Government didn’t want to favor an independent appointment commission, wanting to
keep its hands on the appointment.
Considering that there was no consensus on further reform to the composition of the House of
Lords, another report was published asking if the House should be partially or wholly elected.
Later, several white papers were published but there was, again, no agreement between the
Government, the Commons and the Lords.

2. The 2012-2013 bill

The previous Government committed itself to further reform of the House of Lords. Before the
previous election, an agreement was reached between the 3 major parties to try to reform the
House of Lords in an elected chamber, considered to be more in line with a modern
democracy. The coalition Government then decided to set up a cross-party commission to
investigate the matter. A draft bill was published in May 2011 (a joint Committee on the
House of Lords Reform draft bill set up to conduct pre-legislative scrutiny). That bill was
introduced in the Parliament in June 2012 and was withdrawn in September 2012 due to the
criticism.

THE PROPOSITIONS OF THE BILL :

• Size and composition (clause 1) :

-A drastic reduction of the size of the House : 450 members (against ≈ 800 members
currently).
-The new House of Lords would have been a partially elected chamber : introduction of
elected and appointed members and reduction of the number of spiritual peers as well as the
removal of the life peers and hereditary peers progressively —> The final composition would
have been : 360 elected members / 90 appointed members / 12 bishops sitting as ex-official
members and any ministerial members. The choice of such a chamber was made in order to
reconcile the democratic principle with the fact that people value the contribution of the
House of Lords coming from non-political members.
—> the HL was very efficient on independence from the parliamentary legislation, no party
affiliation
• Term (clause 4) : A single non-renewable membership term of 3 normal election cycles (15
years). The Government considered that serving such a term with no prospect of reflection
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would enhance its independence and would reinforce the distinction and the distinct functions
of the members of the House of Lords and the House of Commons (term sufficiently long
because it was not renewable).
• Timing of elections (clause 3) : They should take place at the same time the ones of the
House of Commons.
• Staggered elections (clause 4) : A third of the seats contested at each election, to guarantee
that members of the new House of Lords would never have collectively a mandate which is
more recent than the mandate of the MPs and therefore a superior democratic legitimacy.
• Voting system (clause 5) : a proportional system should be favored. Its necessary to
differentiate the democratic mandate of the 2 Houses.
• The appointed members (PartIII, spec. clause13) : The idea was to guarantee that they were
appointed by a Statutory Appointments Commission and recommended by the PM for
appointment by the Queen. 30 members are appointed at the time of each election.
• Lord spirituals (Part 4) : Up to 12 seats for the Church of England representatives
• Link with Peerage : Link between peerage and membership would end and peerage would
revert to being an Honor.
• Transitional period : It was decided that moving to a smaller and mainly elected second
chamber could not take place in one step, but it was decided to implement this new chamber
in 3 phases, during which some of the remaining existing peers would have remained within
the House of Lords as transitional members. The Government proposed a process of transition
with the current members of the House, working alongside new elected and appointed
members which would guarantee that the House of Lords would continue working effectively
during the reform.
• Disqualification from the membership of HL : similar to House of Commons (part 7). It was
also mentioned that members were disqualified from membership in the House of Commons.
The Government wanted to ensure that the second chamber should continue to be a
scrutinizing chamber.
-This is why there was a time restriction in order to disqualify members of the new
House of Lords from standing in the House of Commons elections.
-It’s made to distinguish really well the mandate of the House of Lords and of
Commons.
• Franchise (suffrage):
-for House of Lords elections : like House of Commons elections (clause 6)
-for members of the reformed House : they would not be disqualified from voting at
elections in either House of Parliament (clause 50).

—> OVERALL IDEA : To guarantee that the new of House of Lords would complement the
House of Commons. The House of Commons would retain primacy. Certain key elements of
this reform were designed to achieve that aim : length of term, non-renewable term,
appointed element, different voting system, staggered election, temporary disqualification
from membership in HC.
The Government wanted status quo (clause 2 : Continued application of the Parliament Acts) :
-House of Lords would continue to scrutinize legislation and hold the Government to account
-Privileges and powers of the reformed House of Lords would not change
-House of Commons would remain the dominant chamber : Primacy rests upon Parliament Act
1911/1949 and constitutional conventions (Salisbury convention, financial privilege of the HC)
—> The House of Lords is less powerful than the House of Commons.

Was the status quo realistic?

The Government wanted to maintain the primacy of the House of Commons, considering very
carefully all the provisions of the bill to achieve this aim. But at the same time, it wanted
nothing to change when it comes to powers. Lord Strathclyde said that an elected House
« would mean a more assertive house with the authority of the people and an elected
mandate… With an elected chamber the relationship between the 2 Houses would change ».
Therefore, the reform must be carefully conducted. Indeed, the House of Lords is an important
element of the balance of powers in the UK thanks to its independence, because it is not
dominated by politics.
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—> Theses difficulties may explain why the bill was withdrawn.

C. What’s next ?

For now, the current House of Lords accepts the dominance of the House of Commons. But
later, if a newly made House of Lords doesn’t rebel itself, the relation between the 2
chambers would change. Indeed, it’s an ongoing debate and it’s not going to go away : the
House of Common Political and Constitutional Reform Committee made an inquiry of a further
reform, a report entitled House of Lords Reform : what’s next ? in October 2013.
Several private members bills were introduced in Parliament and the Committee decided to
focus on the disability, practicality and effectiveness on small scale reforms to try to reduce
for ex : size of the House of Lords by no longer replacing the hereditary peers when they die,
to remove persistent non attendees, invitation to give assurance that members would retire
after a certain number of year, incentive to voluntary retirement and strengthened leave of
absence scheme, expelling peers convicted of serious offences, placing the House of Lords
appointments…
But also, some ideas were considered but put aside : the moratorium on new peers,
compulsory retirement age…

PMs regularly introduce before Parliament proposals on reform of the House of Lords. There
was for instance the House of Lords Reform Bill, House of Lords Reform number 2 bill, House
of Lords (Maximum Membership Bill).
This PMs bill had in fact the support of the Government and managed to become an Act,
which is very rare : it became the House of Lords Reform Act 2014. The House of Lords
(Expulsion and suspension) Act 2015 continues the previous Act.

(Lectures 30-32 : The UK Parliament : functions)

Section 2 : The UK Parliament : functions

INTRODUCTION :

There are different actors within the House of Commons :

-Backbenchers : they’re members of Parliament who are not ministers or Spokepersons for
their parties (frontbenchers)
-Speaker of the House of Commons : they are elected by other MPs, Chief officer of the House,
That chair the debates (maintains order and calls MPs to speak)
-Lord Speaker : he’s elected by the Lords, chairs the daily business of the House / represents
it
-Leader of the House (HC/HL) : he’s a member of cabinet responsible for organizing
government business in the HC/HL.
-Whips : they’re members appointed by each party to maintain party discipline

I. Legislation

A. Primary legislation

1. The different types of bills

-Public bills : They deal with matters of public policy so tend to have a general character.
They are mainly introduced to Parliament by the Government. They are the most important
ones and most numerous ones. They affect the general law (Government’s bills, private
members’ bills).

-Private bills : They deal with corporate or local interests, it doesn’t affect the general law of
the land. They are usually promoted by organisations or by local authorities, private
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companies, in order to give themselves powers which are beyond or sometimes in conflict
with the general law of the land. They have a limited scope, they only change law as it applies
to specific individuals or corporations rather than the public in general.
Groups or individuals, potentially affected by the changes brought by a public bill, can petition
the Parliament against the proposed bill. Private bills are passed through different procedures
which are contained in specific standing orders of the Parliament. They are not to be confused
with private member bills which are a type of public bills. It is quite rare for these bills to
become an act of Parliament unless they receive the support of the Government (ex : the bill
about the minor changes concerning the House of Lords). The 10-minute rule procedure
allows a backbencher to present a brief speech in favor of the bill and all the backbenchers to
introduce remarks about the bill. But in fact, this procedure is used to make a point on a
political issue, on the fact that there is the need to change the law on a particular point.

-Hybrid bills : These bills mix the characteristics of public and private bills. The changes to
the law proposed by these bills would affect the general public but at the same time, they
would also have an impact on specific groups or individuals. Very often, they are used to
promote works of national importance, but in a specific area of the UK (ex : Construction of
the Channel tunnel). These bills go through a longer parliamentary process than public bills.
Groups which are particularly affected by the work of these bills may petition to Parliament
and present arguments for or against the proposed bills. The coalition agreement promoted
the idea that petitions securing 100 000 signatures could be eligible for debate in Parliament.
At first, this proposal was linked to the functioning of the Backbench business committee and
in connection with a website set up by the Government in 2012. The idea was that if an online
petition reached 100 000, it would pass to the Backbench business committee who would
dedicate some time to the analysis of these proposals. But the work of this committee is
already quite important, in particular the fact that time given to them in Parliament is limited
but still, it was the idea at first. This has recently changed because now the e-petition system
is reviewed and scrutinized by another committee, but the principle basically stays the same.

2. Public bills legislative procedure

• The pre-bill stage : There is the Queen’s speech, official opening of the session of
Parliament. In terms of legislative function, this is an important event because the legislative
program of the Parliament is known officially when she delivers her speech before Parliament
at the start of the session. This speech is also a symbolic moment because it represents the
contribution of the Queen to the work of Parliament. Her speech is then debated by
Parliament during 4 or 5 days, where MPs and Lords talk about the proposal made by the
Government through her speech, knowing that her speech is prepared by the Government.
The draft legislative program was introduced in 2007 where the Government announced
publicly its legislative program before the start of the parliamentary session and the speech.
It contained details of each proposed bills, the purpose of them, their key elements… The idea
was to increase transparency about the Government’s business, they said it was « to provide
advance information about its legislative intentions and to conduct a wider consultation, so
that if necessary, the program could be altered before its announcement in the Queen’s
speech ».

• Drafting of the bill by Government’s officials : At this stage, extensive scrutiny is performed
concerning the clarity, the wording of the bill, compliance with EU law or with convention
rights. The bill is also accompanied by various documents (ex : explanatory notes to explain
the content of each clause of the bill to help it to make sense). Bills in the UK are very hard to
explain, this is why these notes are really necessary. There are also other documents such as
impact assessment,… in order to assess the costs and benefits of the bill.

• Before the bill goes formally in front of Parliament, it’s also possible to make them go
through pre-legislative scrutiny by parliamentary committee : It’s usually highly criticized by
the Government. The idea behind this scrutiny is to try to improve the quality of the bill by
allowing members of Parliament to present comments to the Government about the clarity of
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the bill, its impact, the changes that should be made before the bill is introduced in front of
Parliament. But the Government is free to decide to submit bills to pre-legislative scrutiny and
to take the results into consideration only if it wants to. This process was « one of the most
successful innovations of the last 10 years ».

•The bill is introduced in front of the Parliament : It can begin in either the House of Commons
or the House of Lords.
-Bills relating to taxation, expenditure and important bills always start in the House of
Commons.
Parliamentary time is precious and rare and there are means to ensure that the time is going
to be limited on certain issues and that debates will be limited. The goal is to guarantee that
the legislative agenda of the Government (= its priorities) will go through in Parliament in due
time. For instance, in the British parliamentary, law means such as program orders allocating
a fixed amount of time to each stage. A programme motion is then moved by a minister
before the second reading of the bill and the vote of the motion takes place immediately after
the second reading. But there is also another instrument which is the « guillotine » motion.

a) Legislative stages before te House of Commons

FIRST READING :
It’s a formal reading and presentation by the sponsoring minister of the bill. The read out is
followed by an order for the bill to be printed. Then it is published as an House of Commons
bill.

SECOND READING :
Its the first opportunity of the House of Commons to discuss the general principles of the bill.
A Government minister or a spokesperson or the MP responsible for the bill opens the second
reading. Then, the person responsible for the bill and backbenchers give their opinions on the
general principles of the bill. At the end of the debate, the commons decide whether the bill
should be given its second reading by voting on the bill : if the vote is positive, it means that
the bill can proceed to the next stage. It’s possible that the bill has a second reading without
a debate as long as MPs agree to the progress of the bill. It is very rare for a Government bill
to be defeated at this stage.

COMMITTEE STAGE (public bill committee) : The bill is sent to a Public bill committee /
committee of the whole House for a detailed consideration of the bill and its amendments.
This committee is usually composed from 18 to 30 members nominated by a Committee of
selection. In this PBC, various political parties are presented. PBC may receive written and
oral evidence as part of the detailed consideration of the bill.
The committee, whether it is a PBC or a CWH, can present amendments to the clauses.

REPORT STAGE : The bill is reported as amended to the whole House. Further amendments
may be made at this stage on the proposal of ministers. The opposition may also present
amendments but usually they’re rare to succeed.

THIRD READING : No substantial changes can be made at that stage, it’s another opportunity
to debate the actual content of the bill and then, there is a vote by which the House approves
the third reading.

—> After having completed all the stages, the bill is sent to the House of Lords as amended
by the House of Commons.

b) Legislative stages before the House of Lords

It’s the same with some differences :

-The committee stage is made before the whole House, there is no selection of amendments,
no time limit on discussion.
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-On the third reading, contrary to the House of Commons, amendments can be made. If the
bill is amended, the bill is sent back to the House of Commons : it’s the ping-pong game. If
there is no agreement found between the 2 Houses, the debate may last.
—> When the bill receives to Royal Assent, it becomes an Act of Parliament. It may enter into
force immediately or there is a clause in the act : the commencement section which may
state that the act will enter into force in a specified date or that it will enter into force on
condition that a decision is made by the Government or a minister.

c) Conflict between the two Houses

There is a way for a bill to become of Act of the Parliament without the House of Lords
(Parliament Act 1911 and 1949) :
-This procedure is rarely used by the Government although in the recent time it has
been more often used (this is also the result of the evolution of the membership of the House
of Lords : exclusion of most of the hereditary peers). When there is an opposition of the House
of Lords, it may happen that the Government decides to drop the bill instead of fighting
against the House.
-Certain bills cannot be subjected to this procedure
-There is another reason why these acts are not very often used : the relationship
between the 2 houses, there are conventions ensuring the supremacy of the House of
Commons. We have the Salisbury-Addison Convention, named after Lord Salisbury (the
conservative leader of the HL in 1945). Following the victory of this party (win WW2), he
announced that the bills anticipated in the Labour Party electoral manifesto would be
accepted by the Lords. He stated that they would do so because the Labor Party won the
elections, these bills were approved by the people. The content of this convention is that the
Lords allow a second reading of bills coming from the House of Commons. But these bills
should be passed and sent back to the commons in time for them to be able to consider the
bill and the amendments considered by the House of Lords.

B. Scrutiny of delegated legislation

1. Importance of delegated legislation

The operation of Government is carried on to a large extent, not through the passing and
voting of acts of Parliament, but very often by rules made by members of the Executive under
the powers delegated to them by Parliament. Delegated legislation is very important for the
Government, it allows technical details to be considered by statutory instruments and it
allows time to be given to important debates to the Parliament. Basically, delegated
legislation :
-Is necessary for the operation of the Government
-Is useful in order to alleviate pressure on Parliamentary time
-Is flexible
At the same, it is important that Parliament is involved in the scrutiny of this legislation made
by the Executive under its authority. The first involvement of Parliament has been made
through the Parent Act : Parliament authorizes a minister to enact legislation on certain
matters. The procedure to make secondary legislation also involves parliamentary oversight.

2. Procedures

The Parent Act decides what is the procedure to follow in order to pass delegated legislation.
The main ones are divided between affirmative and negative procedures.

• Affirmative procedures :
-Laying of draft instrument before Parliament and requiring affirmative resolution before
instrument can be made.
-Laying of instrument after it has been made, to come into effect when approved by
affirmative resolution.
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-Laying of instruments that takes immediate effect but requires approval by affirmative
resolution within a stated period as a condition of continuance. The resolution occurs at
different moments.

• Negative procedures :
-Laying of instrument that takes immediate effect, subject to annulment by resolution of
either house
-Laying in draft, subject to resolution that no further proceedings be taken

• Laying of instrument before Parliament with no further control

When it comes to scrutiny, which can be made depending on the procedure chosen, it’s
possible for the House of Commons to analyze the merits of a statutory instrument. The
scrutiny is superficial :
-There are little debates that take place in the Delegated legislation committee, which usually
limits the debates to one or one and a half hour. After the debate, the vote on the statutory
instrument may be taken in the whole house but without further debate.
-Members have no power to make amendments on statutory instruments.

When it comes to the House of Lords, it has the same powers as the House of Commons when
it comes to statutory instrument. The procedure of the Parliament Acts doesn’t apply to
statutory instrument but the exercise of the veto of the House of Lords is quite rare because
as a matter of convention, it should refrain from rejecting a statutory instrument. When it
comes to the scrutiny exercised by the Parliamentary committee, there are different
committees such as a Joint committee on Statutory instruments which performs a technical
scrutiny of statutory instruments. An important role is carried out by the House of Lords : its
Secondary Legislation Scrutiny Committee (scrutinizes the merits of statutory instruments on
certain issues) and its Committee on Delegated Powers and Regulatory Reform, when they
consider that the instrument is very important —> reading of the House of Lords attention of
the house : politically important.

C. Finance

—> Art.4 Bill of Rights 1689 : Parliament must give its formal consent to taxation and
expenditure. The Government cannot raise or spend without its consent. At the same time, if
Parliament has a very important role to play in that area, the right of financial initiative lays
with the Government, not Parliament. It means that Parliament cannot propose increases in
taxation or public expenditure, only the government can.
The Government presents to the House of Commons its detailed requirements for public
expenditure, then the House authorizes it and provides through.
Then, statutes will be passed to authorize the Government to raise and spend public money
known as the Appropriation Act. On the matter of taxation proposed by ministers, it must be
authorized by Parliament as well. It must approve each year the raise of taxes + each raise in
the Finance act.
The purpose of the Budget speech is dedicated to this, after which the House passes a
resolution (the budget ways and means) in order to have immediate effect. The resolution
about taxes is later embodied in the Finance Act.
Concerning accountability, there is always this idea about « value for money » : the money
which is spent by the Government comes from the taxes and the idea is that those who pay
these taxes can get value from it. The Public Account Committee plays an important role in
checking that the taxpayers money is spent in a way which is as efficient as possible in
particular in times of economic crisis.
—> Parliament is not able to create new taxes but must give its consent to the raise of money
to the Government.

D. Holding the Government to account

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A. The ministerial responsibility

-Collective ministerial responsibility :

-Government needs confidence of the House of Commons to stay in office : If the
Government loses the confidence of Parliament, it must resign. Parliament is responsible for
scrutinizing the work of Government and keeping it to account.
-Motion of no-confidence is very rare : because the Parliament could be dissolved and
MP’s could loose their seats. Therefore, the motion of no-confidence is the ultimate move.
-However Government cannot ignore Parliament’s views

-Individual ministerial responsibility : Ministers are responsible for their own conduct and
are accountable to Parliament as head of their department. They are responsible for what is
going on in their minister department —> answer questions and they should not mislead
parliament in their answers, they also can avoid certains questions for political reasons.
The fact that a minister resigns is not the automatic and necessary conclusion of a
wrongdoing in the functioning of the department, it’s rather dependent on several political
factors (confidence of PM, reaction of medias, …). Resignation is the exception rather than the
rule.
In addition to this, in the recent years, ministers have tried to distinguish between policy
matters and operational matters and they say that they cannot be held accountable and
responsible for operational failures.

B. The scrutiny of Government

Parliament control is also about informations given by the Government to it to scrutinize.

Parliament has main mechanisms : Questions and Debates and Inquiries. Through theses
means, Parliament is able to get informations to check if its not misled and it can discuss
Government’s policies.
-Questions —> Oral questions : among them, the most well-known activity is the PM
question times (PMQ) // Written questions. The ministers decide whether they will answer the
questions and how to answer them. They can withhold certain informations : security
interests, secret cabinets. The members of Parliament must table the question at least 3 days
before.
-Debates :
• Adjournment debates, emergency debates (= important matters : in this case,
the authorization of the speaker is needed). Debates on certain issues are limited in time.
• Opposition days : 20 days are allocated in addition to the 40 days to raise their
questions.
• 13 days for Private members’ bills
• Backbench Business committee : it should control approximately 30 days as
well, where the backbenchers can hold debates in matters of their choosing.

—> Parliamentary time is limited and it’s possible that questions which are technical, not
easy to understand may be put on the side. Parliament can, through this, get information
about the Government and its works.

The role of Select committees :

For a very long time, parliamentary committees were perceived as a threat for the efficient
running, to the smooth running of Government’s departments. But the perception changed in
the 1960s and in 1978 a report recommended an overhaul of the Committee system in
Parliament so as to provide the means which would allow MPs to scrutinize the functioning of
the main governmental departments. This system is now embodied in the standing orders of
the House :
-In the House of Commons, they mirror government departments and their task is to
examine the expenditure, administration and policy of each of the main Government’s
departments and associated public bodies. These select committees are involved with the
evolution of the Government (ex : during Brexit, there was a Exiting the EU Committee
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because there was such a department. After Brexit, this committee evolved to reflect the
evolution of department into a Committee on the future relationship with the EU. This
Committee does not longer exists).
-In the House of Lords, the structure is slightly different : select committees do not mirror
Government departments but they cover broader issues (ex : C° committee, …). Committees
are chaired by senior backbenchers. Until recently, chairs were chosen by the whips which
was problematic in terms of independence and therefore efficiency. Now, the chairs are
chosen through a secret ballot.
The committees usually choose the topics they work on and therefore they may hold public
hearings, ministers cannot be compelled to come before a committee, but they usually come
when they’re asked to. In addition to these committees, there are other ones.
-Joint committees : they are composed members of the House of Lords and the House of
Commons. The most important and known one is the Joint Committee on HR.

CHAPTER 7 : THE CROWN AND THE GOVERNMENT

(Lecture 33: The Crown and the Government)

The Executive power is also known as the initiative taker (of policies) and is responsible for
deciding public policies and for implementing them.

I. Structure of the Executive

A. Structure of central Government

The Government is represented by Ministers but is more than that, it covers every member of
the Government :
-Ministerial departments (Whitehall)
-Civil servants : Cabinet secretary (efficient support to the Ministers). The management of the
department is led to the Permanent secretary. Each civil servant is accountable to its Minister.
-Arm’s body length : Among them, we can find :
-Non-ministerial departments : Government department in its own right but it doesn’t
have its own minister. It is a staff of civil servants.
-Non-departmental public bodies : They are not Government departments but they
operate at arm’s length from a department/Minister. A large number of them have a certain
degree of independence from the Government but it is still responsible for them (environment
agency, …). Public Bodies Act 2011 allows ministers by order to abolish, merge or transfer the
functions of the public bodies listed in the schedules to the Act.
-Executive agencies : The policies are decided by the Government department but
they are executed by theses agencies.

—> The landscape is complex and there are a lot of bodies with different activities. Therefore,
the last Government tried to reform this system to transfer certain functions back to
Government departments. Before the reform, there were almost 700 arm’s length bodies but
now there are only 300. The goal is to have more efficiency and reduce the cost.

B. The Crown

• We refer to the King but also the Government. The King is an important symbol of continuity
of the Executive powers but his power has decreased. Even if some powers are executed by
the King, its with the help of the PM.
There are personal prerogatives but most of the power of the Executive are vested to the
Crown and are in fact exercised by ministers.

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The monarch’s personal/royal prerogatives : A lot of them are exercised on the advise of
the PM and are regulated by Conventions. The King is seen as he shouldn’t be involved in
politics. The King has :
-The power to appoint the PM
-The power to appoint and dismiss ministers
-The Royal Assent, but it hasn’t been refused since 1977 to respect the parliamentary regime
of the UK.
—> Most of the Executive powers are exercised by ministers of the Crown.

• The Government is composed of :

-The PM : leader of the Government. He’s a member of the House of Commons and is
responsible for the Government. The PM has few formal legal powers (his office is a creature
of convention), he has more political powers thanks to its influence over other ministers. That
influence depends on the political aspect of that day.

• We oppose Prime Ministerial Government // Cabinet Government :

-Ministers of the Crown : they must be members of Parliament so as to be accountable. Not
more than 95 ministers can seat in the Parliament to limit its influence.
-You may have a deputy PM (not an obligation) : it depend on the will of the PM to have a
deputy and give him powers.

• Then, there is a hierarchy between governmental positions :

-PM
-Deputy PM (not obligated)
-Secretary of State
-Minister of State : attached to departments headed by a Secretary of State
-Parliamentary Secretary or Parliamentary Under Secretary of State (if the department is
headed by a secretary of state)
-Minister without portfolio : they contribute to the development of policies
-Law officers : attorney general, not a member of the cabinet but attends its meetings. His
advice is important regarding legal issues
-Whips : responsible to ensure that party discipline is respected and that the Government
wins important votes/divisions in the House of Commons and the House of Lords (= cohesion).

• The Cabinet is the supreme directive authority in the Government. Its a creature of
convention, it has no legal powers. Its job is to resolve important questions regarding
responsibility of the Government, solve disputes within it. Its influence depends on the
personality of the PM and the political situation.
• Ministerial Committees and sub committees : 15 - decision at a lower level.

C. Powers

A. The Powers

The Government is the law initiating body. Its responsible for showing a legislative agenda.
-The Government legislates thanks to statutory powers given by statutory laws.
-There can also be delegated legislation : Parliament authorized the Government to pass
legislation in a certain domain. Its a difficult question because there is a risk to confer too
broad powers to the Government. Its often a subject of debates.
-Henri VIII powers : it allows the Government to amend primary legislation (power of
Parliament only) through secondary powers. There is a question of separation of power.
-Prerogative powers : It’s exercised by ministers. There are powers shock come from the
Common Law. With the increase of Statute laws (statutory powers), it is residual in quantity
but still important. Ex : Foreign affairs : declaration of war, disposal of armes forces, treaties,
conduct of foreign affairs, issuance of passports.
-Ministers also have a contractual power to achieve particular objectives.

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B. The Judicial review of prerogative powers

Prerogative powers have created question for pubic lawyers regarding the responsibility of
courts to control the Government powers. It was controversial. Prerogative powers were not
subject to judicial reviews. It changed in the GCHQ, Council of Civil Service Unions v Minister
for the Civil service (1985) : Lord Scarman saw « no reason why simply because a decision-
making power is derived from a common law and not a statutory source, it should for that
reason only be immune from JR ». So now, prerogative power are subject to judicial review.

—> Judicial review : the procedure to review the lawfulness of an Act. There are different
grounds for Judicial review :
-Substantive grounds :
-Illegality (Simple ultra vires/Error of Law/ Error of fact/Control of discretion)
-Irrationality : decision « so unreasonable that no reasonable authority could ever have
come to it » according to Lord Greene in Associated Provincial Picture Houses Ltd v
Wednesbury Corporation (1948). It is rarely used as a ground.
-Proportionality (EU Law and HRA) : if a Human Right is involved, judges must do a
proportionality review. It sometimes come close to review the opportunity of the Act.
-Procedural grounds :
-Statutory procedural requirements
-Rules of natural justice : Common Law principles (right to a fair hearing, rule against
bias). Most of the Common Law principles are educated in the ECHR.

Exam : QCM —> True/False - Which statement is true/false

—> 40 q° / ≠ point négatif

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