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United Kingdom constitutional law

Parliament at the Palace of Westminster is central to the UK's democratic constitution. The House of Commons represents around 65 million people in 650 UK constituencies. The House of Lords remains unelected but can be overruled.[1]

United Kingdom constitutional law concerns the political governance of the United Kingdom of Great Britain and Northern Ireland. Though it is one of the oldest continuous political systems on earth, the UK constitution has never been written into a single code but constitutional principles have emerged over the centuries. The Magna Carta 1215 forced the King to call "common counsel" or Parliament, to hold courts in a fixed place, guarantee fair trials, guarantee free movement of people, free the church from the state, and give commoners rights to use the land.[2] By the Bill of Rights 1689, Parliament finally won supremacy over the monarch, as well as the church and the courts, and said that the 'election of members of Parliament ought to be free'. By the Representation of the People (Equal Franchise) Act 1928, every adult man and woman was finally entitled to vote for Parliament. The UK was a founding member of the International Labour Organisation, the United Nations, the Commonwealth, the Council of Europe, the European Union, and the World Trade Organisation.[3] Parliamentary sovereignty, the rule of law, democracy, and internationalism have consistently guided the UK's political system to advance the social and economic development of its people.

The institutions of modern government are Parliament, the judiciary, the executive, and the civil service and public bodies which ensure policies are realised. Parliament is composed of the House of Commons, which is elected by democratic vote, and the House of Lords which is mostly appointed on recommendation of cross-party groups. To make new law, in an Act of Parliament, both Houses must read, amend, or approve proposed legislation three times. The judiciary is headed by an eleven-member UK Supreme Court, and underneath is the Court of Appeal for England and Wales or the Court of Session for Scotland, and a system of High Courts, Crown Courts, or Tribunals depending on the subject in the case. Courts interpret statutes, progress the common law and principles of equity, and can control the discretion of the executive, but are usually thought to have no power to declare an Act of Parliament unconstitutional. The executive is headed by the Prime Minister, who must command a majority in the House of Commons. The Prime Minister appoints a cabinet of people who lead each department, and form Her Majesty's Government . The Queen herself is a ceremonial figurehead, who gives royal assent to new laws, but it has been a constitutional convention that the monarch must not interfere in the democratic process since 1707. Beyond the Parliament and cabinet, a civil service and a large number of public bodies, from the Department of Education to the National Health Service, deliver public services that implement the law, to deliver political, economic and social rights.

In practice, most constitutional litigation occurs through administrative law disputes, concerning the operation of public bodies, and human rights. The courts have inherent power of judicial review, to ensure that every institution under law acts according to law. Except for Parliament itself, courts may declare acts of any institution or public figure void, to ensure that discretion is only used reasonably or proportionately. Since it joined the European Convention on Human Rights in 1950, and particularly Human Rights Act 1998, courts have also been required to review legislation to be compatible with international human rights norms. These protect everyone's right to liberty against arbitrary arrest or detention, the right to privacy against unlawful surveillance, the right to freedom of expression, freedom of association including joining trade unions and taking strike action, and freedom of assembly and protest. Any public body, and private bodies that affect people's fundamental rights and freedoms, can in theory be held accountable in law.

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Contents

HistoryEdit

 
John Ball, a leader of the Peasants' Revolt of 1381 following repression after the Black Death, preached that "matters goeth not well to pass in England, nor shall not do till everything be common, and that there be no villains nor gentlemen, but that we may be all unied [sic] together, and that the lords be no greater masters than we be."[4]
 
The Glorious Revolution of 1688 confirmed Parliament's supremacy over the monarch, represented by John Locke's Second Treatise on Government (1689). The led the foundations for a peaceful unification of England and Scotland in the Act of Union 1707.
 
The Chartists met on Kennington Common during the Revolutions of 1848 to demand democratic reform.
 
The British Empire ended after WW2 as countries, where democracy and freedom were suppressed, demanded independence. The Commonwealth is now open to any country committed to peace, liberty, equality, and development, as in the Harare Declaration of 1991.

PrinciplesEdit

 
In French, parler means "to talk", and the old French developed into the English word "Parliament", painted by Claude Monet in 1904. Though not codified, the UK's constitution is written in hundreds of Acts of Parliament, court cases, and in documented conventions. Its essential principles, though continually evolving, are Parliamentary sovereignty, the rule of law, democracy and internationalism.[5]

The UK constitution has not yet been codified in one document, like the Constitution of South Africa or the Grundgesetz in Germany. However, general constitutional principles run through the law,[6] and central statutes have been recognised as holding "constitutional".[7] The main sources of law, which "constitute" the body politic of the UK, are Acts of Parliament, cases decided by courts, and conventions on how the Cabinet, the Prime Minister, Parliament or the Monarch conduct themselves.[8] Through legislation, case law and conventions, at least four main principles are usually recognised. First, parliamentary sovereignty is a foundational principle. Through the English Reformation, the Civil War, the Glorious Revolution of 1689 and the Act of the Union 1707, Parliament became the dominant source of law, above the judiciary, executive, monarchy, or church. Parliamentary sovereignty means Parliament can make or unmake any law within its practical power to do so, a fact that is usually justified by Parliament upholding other principles, namely the rule of law, democracy, and internationalism. Second, the rule of law has run through the constitution since the Magna Carta 1215 and Petition of Right 1628. This means the government may only conduct itself according to legal authority, including respect for human rights.[9] Third, at least since 1928, democracy has become a fundamental constitutional principle. Originally only wealthy, property-owning men held rights to vote for the House of Commons, while the King or a hereditary House of Lords dominated politics. But from 1832 adult citizens slowly won the right to universal suffrage.[10] Fourth, the UK constitution is international: Parliament has consistently augmented its practical power of UK citizens through membership of international bodies, including the International Labour Organisation,[11] the United Nations, the European Convention on Human Rights, the European Union, the World Trade Organisation, and the International Criminal Court. EU law membership was challenged by the 2016 Brexit referendum, and while the government failed to win the 2017 general election, it is unclear what the outcome will be.

Parliamentary sovereigntyEdit

Parliamentary sovereignty is often seen as a central element in the UK constitution, although its extent is contested.[12] Parliamentary sovereignty is usually said to mean that an Act of Parliament is the highest form of law, but also that "Parliament cannot bind itself."[13] Historically, Parliament became sovereign through a series of power struggles between the monarch, the church, the courts, and ordinary people. The Magna Carta 1215, which came from the conflict leading to the First Barons' War, granted the right of Parliament to exist for "common counsel" before any tax,[14] against the supposedly "divine right of kings" to rule. Common land was also guaranteed to people to farm, graze, hunt or fish, though aristocrats continued to dominate politics. In the Act of Supremacy 1534, King Henry VIII asserted his divine right over the Catholic Church in Rome, declaring himself the supreme leader of the Church of England. Then in the Earl of Oxford's case in 1615,[15] the Lord Chancellor (both the King's representative and head of the judiciary) asserted the supremacy of the Court of Chancery over the common law courts, effectively nullifying Sir Edward Coke's assertion that judges could declare statutes void if they went "against common right and reason".[16] Finally, after the Glorious Revolution of 1688, the Bill of Rights 1689 placed Parliament's power over the monarch (and therefore over the church and courts). Parliament became the "sovereign", and supreme. Power struggles within Parliament continued between the aristocracy and common people. Outside Parliament, people from the Chartists, to the trade unions fought for the vote in the House of Commons, and finally in the Parliament Act 1911 and Parliament Act 1949 for the Commons to prevail in any conflict over the unelected House of Lords: after 1949, the Lords could only delay legislation by one year,[17] and not delay any budgetary measure over a month.[18] In R (Jackson) v Attorney General, a group of pro-hunting protestors challenged the Hunting Act 2004's ban on fox hunting, arguing it was not a valid Act because it was passed avoiding the House of Lords under the Parliament Acts. The 1949 Act itself was passed using the 1911 Act's power to override the Lords in two years, and limited the Lords' power of delay to one year. The claimants argued that this meant the 1949 should not be considered a valid law, because the Parliament Act 1911 was limited in scope and could not be used to amend its own limitation of the Lords' power. The House of Lords rejected this argument, holding both the Parliament Act 1949 and the Hunting Act 2004 to be completely valid. However, in obiter dicta Lord Hope did argue that Parliamentary sovereignty "is no longer, if it ever was, absolute", that the "rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based", and cannot be used to defend unconstitutional Acts (as determined by the courts).[19] There remains no settled meaning of "Parliamentary sovereignty", except that it crystallises around the principle of representative democracy, and that its legal force depends on its political legitimacy.[20]

 
The UK has committed to international law as a "sovereign" member, to augment its power through cooperation, in the United Nations since 1945. The first UN General Assembly was held at Methodist Central Hall, opposite Parliament in London.

In recent history, four main factors developed Parliament's sovereignty in practical and legal terms.[21] First, since 1945 international cooperation meant Parliament augmented its power by working with other sovereign nations, rather than trying to dominate them. The British Empire, which once colonised a quarter of the world's population and a third of its land, weakened by World War One, disintegrated after World War Two. While Parliament had nearly uncontested military power before, and so was thought by writers of the Imperial period to be able to "make or unmake any law whatever",[22] the UK chose to join in the League of Nations in 1919, and after its failure, the United Nations 1945 to rebuild a system of international law. The Versailles Treaty 1919 recalled that "peace can only be established if it is based upon social justice".[23] The UN Charter, "based on the principle of the sovereign equality of all its Members", said that "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind", the UN would "reaffirm faith in fundamental human rights", and members should "live together in peace with one another as good neighbours". The Bretton Woods Agreements Act 1945, United Nations Act 1946 and International Organisations Act 1968 wrote the UK's funding and membership of the United Nations, the International Monetary Fund, the World Bank, and other bodies, into law.[24] For example, the UK bound itself to implement by order UN Security Council resolutions, up to the actual use of force, in return for representation in the General Assembly and Security Council.[25] Although the UK has not always clearly abided by international law,[26] it has accepted formal duty that its sovereignty would not be used unlawfully. Second, in 1950 the UK helped to write and join the European Convention on Human Rights. While the ECHR reflected norms and cases decided under UK statutes and the common law on civil liberties,[27] the UK accepted that people could appeal to the European Court of Human Rights in Strasbourg, if domestic remedies were insufficient. In the Human Rights Act 1998, Parliament decided that the UK judiciary should be required to apply human rights norms directly in determining UK cases, to ensure a more speedy, human rights based resolution to case law, and effectively influence human rights reasoning more.

 
The UK is a European Union member, which commits to "human dignity, freedom, democracy, equality, the rule of law and respect for human rights".[28] While Winston Churchill called for a United States of Europe and for the UK to be "at the centre",[29] the Brexit poll of 2016 demanded by Conservative backbenchers called the UK's EU membership into question.

Third, the UK became a member of the European Union after the European Communities Act 1972 and through its ratification of the Maastricht Treaty in 1992. The idea of a Union had long been envisaged by European leaders, including Winston Churchill, who in 1946 had called for a "United States of Europe" with the UK "at the centre".[30] EU law has always been held to prevail in any conflict between member state laws for the limited fields in which it operates,[31] but member states and citizens gain control over the scope of EU law, and so extend their sovereignty in international affairs, through joint representation in the European Parliament, Council of Ministers, and the Commission. This means that, as the UK is a member of the club, it voluntarily agrees to play by the club's rules. This principle was tested in R (Factortame Ltd) v SS for Transport, where a fishing business claimed that it should not be required to have 75% of British shareholders, as the Merchant Shipping Act 1988 said.[32] Under EU law, the principle of freedom of establishment states that nationals of any member state can freely incorporate and run a business across the EU without unjustified interference. The House of Lords held that, because the EU law conflicted with the sections of the 1988 Act, those section would not be enforced, and disapplied, because Parliament had not clearly expressed an intention to renounce the European Communities Act 1972. According to Lord Bridge "whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary".[33] It is therefore the courts' duty, until Parliament expresses a clear will to leave the EU on certain terms, to apply EU law. On the other hand, in R (HS2 Action Alliance Limited) v Secretary of State for Transport the Supreme Court held that certain fundamental principles of UK constitutional law would not be interpreted by the courts as having been given up by membership of the EU, or probably any international organisation.[34] Here a group protesting against the High Speed 2 rail line from London to Manchester and Leeds claimed that the government had not properly followed a Environmental Impact Assessment Directive by whipping a vote in Parliament to approve the plan. They argued the Directive required open and free consultation, which was not fulfilled if a party whip compelled party members to vote. The Supreme Court unanimously held the Directive did not require that no party whip occurred, but if a conflict had existed a Directive would not be able to compromise the fundamental constitutional principle from the Bill of Rights that Parliament is free to organise its affairs. Fourth, devolution in the United Kingdom has meant Parliament gave power to legislate on specific topics to nations and regions: the Scotland Act 1998 created the Scottish Parliament, the Government of Wales Act 1998 created the Welsh Assembly, the Northern Ireland Act 1998 created a Northern Ireland Executive following the historic Good Friday Agreement, to bring peace. In addition the Local Government Act 1972 and the Greater London Authority Act 1999 give more limited powers to local and London governments. Practically, but also constitutionally, it has become increasingly accepted that decisions should not be taken for the UK which would override, and run counter to the will of regional governments. However, in Miller v Secretary of State for Exiting the EU, a group of people who sought to remain in the European Union brought the government on whether the Prime Minister could trigger Article 50 to notify the European Commission of the UK's intention to leave, without an Act of Parliament.[35] This followed the Brexit poll of 2016 where, on a 77% turnout (23% not voting) 51.9% of people voted to leave, while 48.1% of people voted to remain, including large majorities to remain in Scotland, Northern Ireland and London, and across the country particularly among young people.[36] The claimants argued that, because "Brexit" would obliterate rights that Parliament had conferred through Acts (such as the right free movement of UK citizens in the EU, the right to fair competition through merger control, or to vote in EU institutions) only Parliament could consent to notifying the intention to negotiate to leave under article 50. They also argued the Sewel Convention for devolved assemblies, where the assembly passes a motion that the Westminster Parliament can legislate on a devolved matter before it does so, meant the UK could not negotiate to leave without the Scottish or Northern Ireland legislatures' consent. The UK Supreme Court held Parliament must pass an Act, and could not begin the process of leaving purely through Royal Prerogative. However, the Sewel convention could not be enforced by courts, rather than observed.[37] This led Prime Minister Theresa May to procure the European Union (Notification of Withdrawal) Act 2017, giving her power to notify to leave the EU. It remains unclear that the United Kingdom, or Parliament's sovereignty, will survive if EU membership is eventually given up.[38]

Rule of lawEdit

The rule of law has been regarded as a fundamental principle of modern legal systems, including the UK.[39] It has been called "as important in a free society as the democratic franchise",[40] and even "the ultimate controlling factor on which our constitution is based",[41] but like parliamentary sovereignty, its meaning and extent is disputed. The most widely accepted meaning is that law must be clear and predictable, not subject to broad or unreasonable discretion, apply equally to all people, with speedy and fair procedures for enforcement, and protect fundamental human rights, within the frame of international law.[42]

 
Parliament was recognised as a forum for the King for "common counsel" before the Magna Carta 1215.

DemocracyEdit

 
The Scottish Parliament at Holyrood has 129 MSPs with extensive powers, including taxation.

InternationalismEdit

  • Magna Carta 1215
  • Bate's case or Case of Impositions (1606) 2 St Tr 371, John Bate claimed he did not need to pay a duty on imported currants imposed by the Crown. He said it was contrary to 45 Edw 3 c 4, which prohibited indirect taxation without consent of Parliament. Court of Exchequer held the Crown could impose the duty as he pleased to regulate trade. The Court could not go behind the King’s statement that the duty was indeed imposed for the purpose of regulating trade.
  • Bill of Rights 1689 art 4 and Shipmoney Act 1640, reversing Case of Ship Money or R v Hampden (1637) 3 St Tr 825 that the King could raise money from trade without Parliament.
  • Lord Mansfield
  • R v Lyons [2002] UKHL 44, Lord Hoffmann, [27] 'Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation.
  • United Nations Act 1946
  • World Trade Organisation and The World Trade Organisation (Immunities and Privileges) Order 1995
  • International Criminal Court Act 2001
  • Comprehensive Economic and Trade Agreement (Canada-EU)
  • Saad v SS for the Home Department [2001] EWCA Civ 2008, Lord Phillips MR, 15. We approach this case on the basis set out in Bennion on Statutory Interpretation (3rd ed) p 630 that: “It is a principle of legal policy that the municipal law should conform to public international law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.” 16. It follows that, absent a clear Parliamentary indication to the contrary, we would expect our primary and delegated legislation to provide a system whereby claimants may have it determined whether they are refugees. It is only that determination which gives them access to Convention rights. We therefore approach questions of construction on that basis.
  • R (SG) v SS for Work and Pensions [2015] UKSC 16, on the benefits cap, Lord Kerr, dissenting, at [247] argues the dualist theory of international law should go, and international law should be effective in UK law.
 
The 2016 Brexit referendum challenged UK membership of the European Union. 51.89% of those voting opted to leave, but expressed no preference of the terms, while 48.11% voted to remain, on a 72.21% turnout.

InstitutionsEdit

ParliamentEdit

 
The House of Commons is the most important body in the UK constitution. Its Members of Parliament are democratically elected by constituencies across the UK, and the parties who have a majority in the Commons form the UK government.
 
The House of Lords is a chamber mostly appointed by the Prime Minister, loosely based on the Lords' expertise, achievement, or political affiliation. Since the abolition of most hereditary peers, there has been ongoing debate about whether or how to elect the House of Lords.

JudiciaryEdit

ExecutiveEdit

 
The Prime Minister exercises political power of the UK government, so long as they command majority support of the House of Commons.
 
The task of the official opposition, currently led by Jeremy Corbyn of the Labour Party, is to hold the government and the Prime Minister to account in and out of Parliament.

Civil and public serviceEdit

 
UK central government expenditure, 2016-17. Social protection includes pensions and welfare.[44]

Administrative lawEdit

 
Any person in the UK who is significantly affected by a public body's act can challenge a decision by judicial review. The claims usually beginning in the High Court.

Administrative law, through judicial review, is an essential method to hold executive power and public bodies accountable to law. Constitutional principles often emerge through judicial review, because every public body, whose decisions affect people's lives, is created and bound by law. A person who has a "sufficient interest" can apply to the High Court,[45] within three months of the grounds of the cause of action becoming known.[46] Any public body, or private bodies exercising public functions,[47] can be the target of judicial review. A claimant can argue that a decision was unlawful in five main types of case:[48] (1) it exceeded the lawful power of the body or used its power for an improper purpose,[49] (2) violated a human right, or a legitimate expectation,[50] (3) failed to exercise relevant and independent judgement,[51] (4) acted unreasonably or disproportionately,[52] (5) exhibited bias or a conflict of interest.[53] As a remedy, a claimant can ask for the public body's decisions to be declared void, or it could ask for an injunction to prevent the body from acting unlawfully. Compensation could be payable in tort or occasionally contract.

ProcedureEdit

Grounds for judicial reviewEdit

Public body liabilityEdit

Human rightsEdit

See alsoEdit

NotesEdit

  1. ^ Parliament Act 1911 and Parliament Act 1949
  2. ^ Magna Carta 1215 clauses 1 ('... the English church shall be free...'), 12 and 14 (no tax 'unless by common counsel of our kingdom...'), 17 ('Common pleas shall... be held in some fixed place'), 39-40 ('To no one will we sell, to no one will we refuse or delay, right or justice'), 41 ('merchants shall have safe and secure exit from England, and entry to England') and 47-48 (land taken by the King 'shall forthwith be disafforested').
  3. ^ The ILO was formed as part of the (now defunct) League of Nations in the Versailles Treaty 1919 Part XIII. The UN was formed in 1945. The Commonwealth of Nations was formally established by the London Declaration of 1949. The Council of Europe was created in 1950. The European Union was formed by the Maastricht Treaty 1992, succeeding the European Community which the UK joined with the European Communities Act 1972. The World Trade Organisation was created in 1994.
  4. ^ J Froissart, Froissart's Chronicles (1385) translated by GC Macaulay (1895) 251–252. Ball went on, "What have we deserved, or why should we be kept thus in servage? We be all come from one father and one mother, Adam and Eve: whereby can they say or shew that they be greater lords than we be, saving by that they cause us to win and labour for that they dispend? They are clothed in velvet and camlet furred with grise, and we be vestured with poor cloth: they have their wines, spices and good bread, and we have the drawing out of the chaff and drink water: they dwell in fair houses, and we have the pain and travail, rain and wind in the fields; and by that that cometh of our labours they keep and maintain their estates: we be called their bondmen, and without we do readily them service, we be beaten; and we have no sovereign to whom we may complain, nor that will hear us nor do us right."
  5. ^ See AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) chs 1-6
  6. ^ AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) chs 1-6
  7. ^ R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [207] per Lord Neuberger and Lord Mance, "The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list."
  8. ^ On Conventions, see Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484
  9. ^ See T Bingham, The Rule of Law (2011) and Entick v Carrington [1765] EWHC KB J98
  10. ^ Great Reform Act 1832 (common property qualification rules for all boroughs and counties), Representation of the People Act 1867 (extended the franchise to around 1/3 of men), Representation of the People Act 1884 (extended the male franchise), Representation of the People Act 1918 (enabled all men to vote over 21, and women over 30 with property), and Representation of the People (Equal Franchise) Act 1928 (enabled equal suffrage of men at women age 21). The Representation of the People Act 1948 further abolished multiple votes for graduates of London, Cambridge and Oxford, and other University constituencies, and the Representation of the People Act 1969 lowered voting age to 18. Restrictions on prisoner voting were inserted by the Representation of the People Act 1983. British citizens abroad can vote under the Representation of the People Act 1985, but millions of UK residents, who pay taxation but do not have citizenship, are denied representation in Parliament.
  11. ^ See the Appropriation Act 1923 Sch 4
  12. ^ See generally, AW Bradley, ‘The Sovereignty of Parliament – Form or Substance?’ in J Jowell, The Changing Constitution (7th edn 2011) ch 2
  13. ^ cf AW Bradley and KD Ewing, Constitutional and Administrative Law (2015) 65, it ‘is not not possible to predict the outcome of changes made by Parliament to the ‘manner and form’ of the legislative process since, depending on the nature and reasons for such changes, the courts might still be influenced by a deep-seated belief in the proposition that Parliament cannot bind itself.’
  14. ^ Magna Carta 1215 cl 12, ‘No scutage [tax on knight’s land or fee] nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom...’
  15. ^ Earl of Oxford’s case (1615) 21 ER 485, Lord Ellesmere LC, ‘… when a Judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party.’
  16. ^ Dr Bonham’s case (1610) 8 Co Rep 114a
  17. ^ Parliament Act 1949 s 1.
  18. ^ Parliament Act 1911 s 1.
  19. ^ [2005] UKHL 56, [120] 'Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law'.
  20. ^ Contrast R (Simms) v SS for the Home Department [1999] 33, [2000] 2 AC 115, 131, Lord Hoffmann, ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’
  21. ^ cf Leslie Stephen, The Science of Ethics (1882) 145, "Lawyers are apt to speak as though the legislature were omnipotent, as they do not require to go beyond its decisions. It is, of course, omnipotent in the sense that it can make whatever laws it pleases, inasmuch as a law means any rule which has been made by the legislature. But from the scientific point of view, the power of the legislature is of course strictly limited. It is limited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it."
  22. ^ AV Dicey, The Law of the Constitution (1885) 39-40, Parliament has ‘under the English constitution, the right to make or unmake any law whatever; and further... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’
  23. ^ Treaty of Versailles 1919 Part XIII, statute of the International Labour Organisation
  24. ^ See the International Organisations Act 1968 ss 1-8
  25. ^ United Nations Act 1946 s 1
  26. ^ See the Legality of the Iraq War page.
  27. ^ For instance, preceding ECHR art 8, see Entick v Carrington [1765] EWHC KB J98. On art 11, see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2
  28. ^ Treaty on European Union art 2
  29. ^ e.g. 'Speech to the 69th Annual Conservative Party Conference at Llandudno' (9 October 1948). See J Danzig 'Winston Churchill: A founder of the European Union' (10 November 2013) EU ROPE
  30. ^ e.g. 'Speech to the 69th Annual Conservative Party Conference at Llandudno' (9 October 1948). See J Danzig 'Winston Churchill: A founder of the European Union' (10 November 2013) EU ROPE
  31. ^ Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62, [94] member states "have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves" on the "basis of reciprocity".
  32. ^ [1990] UKHL 7
  33. ^ [1990] UKHL 7
  34. ^ [2014] UKSC 3
  35. ^ [2017] UKSC 5
  36. ^ See Opinion polling for the United Kingdom European Union membership referendum#Post–referendum polling
  37. ^ [2017] UKSC 5, 146. Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question (as in the Crossman diaries case - Attorney General v Jonathan Cape Ltd [1976] 1 QB 752), but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. As Professor Colin Munro has stated, “the validity of conventions cannot be the subject of proceedings in a court of law” - (1975) 91 LQR 218, 228.
  38. ^ cf MacCormick v Lord Advocate 1953 SC 396 Lord Cooper, ‘The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.’
  39. ^ cf Aristotle, Politics (330 BCE) 3.16, ‘It is more proper that law should govern than any one of the citizens’.
  40. ^ X v Morgan-Grampian Ltd [1991] AC 1, 48, per Lord Bridge, ‘The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.’
  41. ^ R (Jackson) v Attorney General [2005] UKHL 56, [104] per Lord Hope
  42. ^ T Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67 and see also T Bingham, Rule of Law (2008) 8, ‘all persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’ Lord Bingham, ‘The Rule of Law and the Sovereignty of Parliament’ (31 October 2007) King's College, London also remarked, ‘democracy lies at the heart of the concept of the rule of law’.
  43. ^ https://www.flickr.com/photos/un_photo/24147256982
  44. ^ "Budget 2016" (PDF). HM Treasury. March 2016. p. 5.
  45. ^ Senior Courts Act 1981 s 31(3)
  46. ^ Civil Procedure Rules rule 54.5 claims can be made up to 'three months after the grounds to make the claim first arose', but the period can be shorter if legislation says so.
  47. ^ R (Datafin) v Panel on Takeovers and Mergers [1987] QB 815
  48. ^ Different books and cases categorise the grounds to review administrative discretion differently, as do different fields of law such as directors' duties in UK company law, unfair dismissal in UK labour law or implied terms in English contract law. Lord Diplock in the GCHQ case said the grounds were "illegality", "irrationality" and "procedural impropriety". A Le Sueur, M Sunkin and J Murkens, Public Law Text, Cases, and Materials (3rd edn 2016) ch 16 follows this. It is often, however, unclear how a procedural requirement of the law can be separated from substance, and it was thought that "irrationality" is too restrictive. AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2014) ch 24 now suggests substantive grounds, legitimate expectations and procedural grounds. In R (Baker) v Devon CC [1995] 1 All ER 73, 88, Sir Robin Cooke said 'The administrator must act fairly, reasonably and according to law. That is the essence and the rest is mainly machinery.' M Elliott and R Thomas, Public Law (3rd edn 2017) ch 12 generally follows this. Another categorisation of Lord Bingham, Rule of Law (2010) was 'Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purposes for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.' Contrast the Companies Act 2006 ss 171-177, codifying directors' duties.
  49. ^ Ridge v Baldwin [1964] AC 40 (following law). Padfield v Minister of Agriculture [1968] AC 997 (improper purpose)
  50. ^ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (legitimate expectation rejected). R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (legitimate expectation upheld)
  51. ^ R v Home Secretary ex p Venables and Thompson [1998] AC 407 (irrelevant consideration). R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 (independent judgement)
  52. ^ Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (unreasonableness loosely defined)
  53. ^ Porter v Magill [2001] UKHL 67 (bias). R v Bow Street Stipendiary Magistrate, ex p Pinochet (No 2) [2000] 1 AC 119 (possibility of a conflict of interest).

ReferencesEdit

Articles
Books
Textbooks
  • AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018)
  • A Le Sueur, M Sunkin and J Murkens, Public Law Text, Cases, and Materials (3rd edn 2016)
  • M Elliott and R Thomas, Public Law (3rd edn 2017)

External linksEdit