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United Kingdom constitutional law

From Wikipedia, the free encyclopedia

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]
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. With the oldest continuous political system on earth, the UK constitution is not contained in a single code but principles have emerged over the centuries from statute, case law, political conventions and social consensus. In 1215, the Magna Carta required 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 enshrined the rights of "common" people to use the land.[2] After the English Civil War and the Glorious Revolution 1688, Parliament won supremacy over the monarch, as well as the church and the courts, and the Bill of Rights 1689 recorded that the "election of members of Parliament ought to be free". The Act of Union 1707 unified England, Wales and Scotland, while Ireland was joined in 1808, but the Republic of Ireland formally separated between 1916 and 1921 through bitter armed conflict. 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 Organization, the United Nations, the Commonwealth, the Council of Europe, the European Union, and the World Trade Organization.[3] The principles of Parliamentary sovereignty, the rule of law, democracy, and internationalism guide the UK's modern political system to advance the social and economic development of its people.

The central institutions of modern government are Parliament, the judiciary, the executive, the civil service and public bodies which implement policies, and regional or local governments. Parliament is composed of the House of Commons, elected by a democratic vote, and the House of Lords which is mostly appointed on recommendation of cross-political party groups. To make a new Act of Parliament, the highest form of law, 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. UK courts 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. By constitutional convention the monarch must not usurp the democratic process, and has not done since 1708. 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 and fulfil 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 an 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 after the Human Rights Act 1998, courts are required to review legislation to be compatible with international human rights norms. These protect everyone's rights against government or corporate power, including 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 the freedom of assembly and protest. Every public body, and private bodies that affect people's rights and freedoms, is accountable under the law.

History

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]
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). This laid the foundations for a peaceful unification of England and Scotland in the Act of Union 1707.
The Glorious Revolution of 1688 confirmed Parliament's supremacy over the monarch, represented by John Locke's Second Treatise on Government (1689). This laid 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 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.
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.

Principles

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]
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" value.[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 sovereignty and the practical power of UK citizens through membership of international bodies, including the International Labour Organization,[11] the United Nations, the European Convention on Human Rights, the European Union, the World Trade Organization, and the International Criminal Court. EU membership was challenged by the 2016 United Kingdom European Union membership referendum, and while the government failed to win the 2017 general election, it is unclear what the outcome will be.

Parliamentary sovereignty

Parliamentary sovereignty is often seen as a central element in the UK constitution, although its extent is contested.[12] It means 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, opened by Prime Minister Clement Attlee.[21]
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, opened by Prime Minister Clement Attlee.[21]

In recent history, four main factors developed Parliament's sovereignty in practical and legal terms.[22] 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 I, disintegrated after World War II. 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",[23] 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".[24] 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.[25] 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.[26] Although the UK has not always clearly abided by international law,[27] 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,[28] 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".[29] While Winston Churchill called for a United States of Europe and for the UK to be "at the centre",[30] the Brexit poll of 2016 demanded by Conservative backbenchers called the UK's EU membership into question.
The UK is a European Union member, which commits to "human dignity, freedom, democracy, equality, the rule of law and respect for human rights".[29] While Winston Churchill called for a United States of Europe and for the UK to be "at the centre",[30] 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".[31] EU law has always been held to prevail in any conflict between member state laws for the limited fields in which it operates,[32] 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.[33] 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".[34] 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.[35] 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 an 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.[36] 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.[37] 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.[38] 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.[39]

Rule of law

The rule of law has been regarded as a fundamental principle of modern legal systems, including the UK.[40] It has been called "as important in a free society as the democratic franchise",[41] and even "the ultimate controlling factor on which our constitution is based",[42] but like parliamentary sovereignty, its meaning and extent is disputed. The most widely accepted meanings speak of several factors: Lord Bingham, formerly the highest judge in the UK, suggested the rule of law ought to mean that law is clear and predictable, not subject to broad or unreasonable discretion, applies equally to all people, with speedy and fair procedures for enforcement, protects fundamental human rights, and works according to international law.[43] Other definitions seek to exclude human rights and international law as relevant, but largely stem from visions of pre-democratic scholars such as Albert Venn Dicey.[44] The rule of law was explicitly recognised as a "constitutional principle" in section 1 of the Constitutional Reform Act 2005, which limited the judicial role of the Lord Chancellor and recast the judicial appointments system to entrench independence, diversity and merit.[45] As statute gives no further definition, the practical meaning of the "rule of law" develops through case law.

The European Court of Human Rights, following common law principles,[46] protects the rule of law by requiring people's liberty, privacy or other rights are not infringed by the government unless there is a clear legal basis and justification.[47]
The European Court of Human Rights, following common law principles,[46] protects the rule of law by requiring people's liberty, privacy or other rights are not infringed by the government unless there is a clear legal basis and justification.[47]

At the core of the rule of law, in English and UK law, has traditionally been the principle of "legality". This means that the state, government, and any person acting under government authority (including a corporation),[48] may only act according to law. In 1765, in Entick v Carrington a writer, John Entick, claimed that the King's Chief Messenger, Nathan Carrington, had no legal authority to break into and ransack his home, and remove his papers. Carrington claimed he had authority from the Secretary of State, Lord Halifax who issued a search "warrant", but there was no statute that gave Lord Halifax the authority to issue search warrants. Lord Camden CJ held that the "great end, for which men entered into society, was to secure their property", and that without any authority "every invasion of private property, be it ever so minute, is a trespass."[49] Carrington acted unlawfully and had to pay damages. Today this principle of legality is found throughout the European Convention on Human Rights, which enables infringements of rights as a starting point only if "in accordance with the law".[50] In 1979, in Malone v Metropolitan Police Commissioner a man charged with handling stolen goods claimed the police unlawfully tapped his phone, to get evidence. The only related statute, the Post Office Act 1969 Schedule 5, stated there should be no interference in telecommunications unless the Secretary of State issued a warrant, but said nothing explicit about phone tapping. Megarry VC held there was no wrong at common law, and refused to interpret the statute in light of the right to privacy under the European Convention on Human Rights, article 8.[51] On appeal, the European Court of Human Rights concluded the Convention was breached because the statute did not ‘indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.’[52] The judgment, however, was overshadowed by the government swiftly passing a new Act to authorise phone tapping with a warrant.[53] By itself the principle of legality is not enough to alone preserve human rights in the face of ever more intrusive statutory powers of surveillance by corporations or government.

The most broadly accepted meaning of the rule of law, advocated by Lord Bingham, includes the principle of legality, human rights and commitment to democracy and international law.[54]
The most broadly accepted meaning of the rule of law, advocated by Lord Bingham, includes the principle of legality, human rights and commitment to democracy and international law.[54]

The rule of law also requires law is truly enforced, though enforcement bodies may have room for discretion. In R (Corner House Research) v Director of the Serious Fraud Office a group campaigning against the arms trade, Corner House Research, claimed the Serious Fraud Office acted unlawfully by dropping an investigation into the UK-Saudi Al-Yamamah arms deal. It was alleged that BAE Systems plc paid bribes to Saudi government figures.[55] The House of Lords held the SFO was entitled to take into account the public interest in not pursuing an investigation, including the security threats that might transpire. Baroness Hale remarked that the SFO had to consider "the principle that no-one, including powerful British companies who do business for powerful foreign countries, is above the law", but the decision reached was not unreasonable.[56] When enforcement or court proceedings do take place, they should proceed swiftly: anyone who is detained must be charged and put on trial or released.[57] People must also be able to access justice in practice. In R (UNISON) v Lord Chancellor the Supreme Court held the government's imposition of £1200 in fees to bring an Employment Tribunal claim undermined the rule of law, and was void. The Lord Chancellor had statutory authority to put create fees for court services, but in the case of Employment Tribunals, his Order led to a 70% drop in claims against employers for breach of labour rights, such as unfair dismissal, unlawful wage deductions or discrimination. Lord Reed said the "constitutional right of access to the courts is inherent in the rule of law". Without access to courts, "laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade."[58] In principle every person is subject to the law, including government ministers, or corporate executives, who may be held in contempt of court for violating an order.[59] In other systems the idea of a separation of powers is seen as an essential part of maintaining the rule of law. In theory, originally advocated by Baron de Montesquieu, there should be a strict separation of the executive, legislature and judiciary.[60] While other systems, notably the United States, attempted to put this into practice (e.g. requiring the executive does not come from the legislature) it is clear that modern political parties may undermine such a separation by capturing all three branches of government, and democracy has been maintained since the 20th century despite the fact that "there is no formal separation of powers in the United Kingdom."[61] The Constitutional Reform Act 2005 did, however, end the practice of the Lord Chancellor sitting as the head of the judiciary, while also being a Member of Parliament, and sitting in the cabinet. Since the Act of Settlement 1700, there has been only one instance of a judge being removed, and a suspension cannot happen without the Lord Chief Justice and the Lord Chancellor following a judge being subject to criminal proceedings.[62] There is now a duty on all ministers to "uphold the continued independence of the judiciary", including against assault by powerful corporations or the media.[63]

Democracy

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

The principle of a "democratic society" is generally seen as a fundamental legitimating factor of both Parliamentary sovereignty and the rule of law. A functioning representative and deliberative democracy, which upholds human rights legitimises the fact of Parliamentary sovereignty,[64] and it is widely considered that "democracy lies at the heart of the concept of the rule of law",[65] because the opposite of arbitrary power exercised by one person is "administration is in the hands of the many and not of the few’".[66] According to the preamble to the European Convention on Human Rights, as drafted by British lawyers following World War II, fundamental human rights and freedoms are themselves "best maintained... by "an effective political democracy".[67] Similarly, this "characteristic principle of democracy" is enshrined by the First Protocol, article 3, which requires the "right to free elections" to "ensure the free expression of the opinion of the people in the choice of the legislature".[68] While there are many conceptions of democracy, such as "direct", "representative" or "deliberative", the dominant view in modern political theory is that democracy requires an active citizenry, not only in electing representatives, but in taking part in political life.[69] Its essence lies not simply majority decision-making, nor referendums that can easily be used as a tool of manipulation,[70] "but in the making of politically responsible decisions" and in "large-scale social changes maximising the freedom" of humankind.[71] The legitimacy of law in a democratic society depends upon a constant process of deliberative discussion and public debate, rather than imposition of decisions.[72] It is also generally agreed that basic standards in political, social and economic rights are necessary to ensure everyone can play a meaningful role in political life.[73] For this reason, the rights to free voting in fair elections and "general welfare in a democratic society" have developed hand-in-hand with all human rights, and form a fundamental cornerstone of international law.[74]

In the UK's "modern democratic constitution",[75] the principle of democracy is manifested through statutes and case law which guarantee the right to vote in fair elections, and through its use as a principle of interpretation by courts. In 1703, in the landmark case of Ashby v White, Lord Holt CJ stated that the right of everyone "to give [their] vote at the election of a person to represent [them] in Parliament, there to concur to the making of laws, which are to bind [their] liberty and property, is a most transcendent thing, and of an high nature".[76] This has meant that the courts actively ensure that votes cast are counted, and that democratic elections are conducted according to law. In Morgan v Simpson the Court of Appeal held that if a vote "was conducted so badly that it was not substantially in accordance with the law as" then it would be declared void, and so would even minor irregularities that would affect the result.[77] A considerable body of regulation, for instance in the Representation of the People Act 1983 or the Political Parties, Elections and Referendums Act 2000, restrict spending or any foreign interference because, according to Baroness Hale "each person has equal value" and "we do not want our government or its policies to be decided by the highest spenders."[78] More broadly, the concept of a "democratic society" and what is "necessary" for its functioning underpins the entire scheme of interpretation for the European Convention on Human Rights as applied in UK law, particularly after the Human Rights Act 1998, because each right can usually only be restricted if "in accordance with law" and as "necessary in a democratic society". The place of the social welfare state that is necessary to support democratic life is also manifested through courts' interpretation. For instance, in Gorringe v Calderdale MBC Lord Steyn, giving the leading judgment said it was "necessary" to view the law of negligence in the context of "the contours of our social welfare state."[79] More generally, the common law has been increasingly developed to be harmonious with statutory rights,[80] and also in harmony with rights under international law.

Internationalism

Like other democratic countries,[81] the principles of international law are a basic component of the UK constitution, both as a primary tool of interpretation of domestic law, and through the UK's consistent support and membership of major international organisations. As far back as the Magna Carta 1215, English law recognised the right to free movement of people for international trade.[82] By 1608, Sir Edward Coke wrote confidently that international commercial law, or the lex mercatoria, is part of the laws of the realm,[83] while the constitutional crises of the 17th century centred upon Parliament halting the King's attempting to tax international trade without its consent.[84] Similarly in the 18th century, Lord Holt CJ viewed international law as a general tool for interpretation of the common law,[85] while Lord Mansfield in particular did more than any other to affirm that the international lex mercatoria "is not the law of a particular country but the law of all nations",[86] and "the law of merchants and the law of the land is the same".[87] In 1774, in Somerset v Stewart, one of the most important cases in legal history, Lord Mansfield held that slavery was lawful "in no country" and therefore in common law.[88] In modern case law it has been consistently accepted that it "is a principle of legal policy that [UK] law should conform to public international law."[89] The House of Lords stressed that "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."[90] For example, in Hounga v Allen the Supreme Court held that a young lady who had been illegally trafficked to the UK had a right to bring a race discrimination claim against her employers, even though she had herself been in violation of the Immigration Act 1971.[91] In doing so, the court unanimously drew upon international treaties signed by the UK, known as the Palermo Protocols, as well as the European Convention on Human Rights, in interpreting the scope of the common law doctrine of illegality, and held it was no bar for the claimant to assert her legal rights. It has been further debated whether the UK should adopt a theory of that sees international law as part of UK without any further act (a "monist" theory), or whether it should still be required for international law principles to be translated into domestic law (a "dualist" theory).[92] The current position in European Union law is that while international law binds the EU, it cannot undermine fundamental principles of constitutional law or human rights.[93]

The 2016 United Kingdom European Union membership referendum challenged UK membership of the European Union, as 27% of the UK population voted to "leave": on a 72.21% turnout, 51.89% voted to leave, and 48.11% to remain. The referendum has been challenged as violating international law and common law standards of free and fair voting.[94]
The 2016 United Kingdom European Union membership referendum challenged UK membership of the European Union, as 27% of the UK population voted to "leave": on a 72.21% turnout, 51.89% voted to leave, and 48.11% to remain. The referendum has been challenged as violating international law and common law standards of free and fair voting.[94]

Since the World Wars brought an end to the British Empire and physically destroyed large parts of the country, the UK has consistently supported organisations formed under international law. From the Versailles Treaty 1919, the UK was a founding member of the International Labour Organization, which sets universal standards for people's rights at work. After the failure of the League of Nations and following World War Two, the UK became a founding member of the United Nations, recognised by Parliament through the United Nations Act 1946, enabling any resolution of the Security Council except the use of force to be implemented by an Order in Council. Under the Universal Declaration of Human Rights 1948, the continued colonial occupation, and suppression of democracy and human rights in the British Empire lost any remaining legitimacy under international law, and combined with independence movements this led to its rapid dissolution. Two fundamental treaties, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights in 1966 saw the UK ratify most rights from the Universal Declaration. Following the Ponsonby Rule from 1924, the Constitutional Reform and Governance Act 2010 section 20 stipulates that a treaty is ratified once it is laid before Parliament for 21 days and no adverse resolution is passed against it.[95] Regionally, the UK participated in drafting the European Convention on Human Rights 1950 which sought to guarantee basic standards of democracy and human rights to preserve peace in post-war Europe. At the same time, following long-held visions for European integration with the UK "at the centre",[96] democratic European countries sought to integrate their economies both to make war impossible, and to advance social progress. In 1972, the UK joined the European Community (renamed the European Union in 1992) and committed to implement EU law in which it participated, in the European Communities Act 1972. In 1995, the UK also became a founding member of the World Trade Organization.[97] To ensure that the European Convention was directly applied by the courts, the Human Rights Act 1998 was passed. It also passed the International Criminal Court Act 2001 to enable prosecution of war criminals, and subjected itself to the jurisdiction of the court. In 2016, however, the UK voted in a referendum on whether to leave the European Union, resulting on a 72.21% turnout in a margin of 48.11% favouring "remain", 51.89% favouring "leave" on unspecified terms (27% of the total UK population).[98] However, large majorities in both Scotland and Northern favoured remaining in the EU, and it was revealed that significant criminal conduct took place in the vote.[99] This led to considerable uncertainty about the UK's future role in the international community.

Institutions

The UK system of parliamentary democracy ensures that the executive, and the Prime Minister, is removable by a simple majority vote in the House of Commons. The executive is bound to the rule of law, interpreted by the judiciary, but the judiciary may not declare an Act of Parliament to be unconstitutional.
The UK system of parliamentary democracy ensures that the executive, and the Prime Minister, is removable by a simple majority vote in the House of Commons. The executive is bound to the rule of law, interpreted by the judiciary, but the judiciary may not declare an Act of Parliament to be unconstitutional.

While principles may the basis of the UK constitution, the institutions of the state perform its functions in practice. First, Parliament is the sovereign entity. Its two chambers legislate. In the House of Commons each Member of Parliament is elected by a simple majority in a democratic vote, although outcomes do not always accurately match people's preferences overall. Historically, most elections occurred each four years,[100] but this was fixed at five years in 2011.[101] Election spending is tightly controlled, foreign interference is prohibited, and donations and lobbying are limited in whatever form. The House of Lords reviews and votes upon legislative proposals by the Commons. It can delay legislation by one year, and cannot delay at all if the proposed Act concerns money.[102] Most Lords are appointed by the Prime Minister, through the Queen,[103] on the advice of a Commission which, by convention, offers some balance between political parties. Ninety-two hereditary peers remain.[104] To become law, each Act of Parliament must be read by both houses three times, and given royal assent by the monarch. The monarch cannot veto legislation, by convention, since 1708. Second, the judiciary interprets the law. It can not strike down an Act of Parliament, but the judiciary ensures that any law which may violate fundamental rights has to be clearly expressed, to force politicians to openly confront what they are doing and "accept the political cost".[105] Under the Constitutional Reform Act 2005, the judiciary is appointed by the Judicial Appointments Commission with cross-party and judicial recommendations, to protect judicial independence. Third, the executive branch of government is led by the Prime Minister who must be able to command a majority in the House of Commons. The Cabinet of Ministers is appointed by the Prime Minister to lead the main departments of state, such as the Treasury, the Foreign Office, the Department of Health and the Department of Education. Officially the "head of state" is the monarch, but all prerogative power is exercised by the Prime Minister, subject to judicial review. Fourth, as the UK matured as a modern democracy, an extensive system of civil servants, and public service institutions developed to deliver UK residents economic, social and legal rights. All public bodies, and private bodies that perform public functions, are bound by the rule of law.

Parliament

In the UK constitution, Parliament sits at the apex of power. It emerged through a series of revolutions as the dominant body, over the church, courts, and the monarch,[106] and within Parliament the House of Commons emerged as the dominant chamber, over the House of Lords that traditionally represented the aristocracy.[107] The central justification for Parliamentary sovereignty is usually thought to be its democratic nature, although it was only upon the Representation of the People (Equal Franchise) Act 1928 that Parliament could be said to have finally become "democratic" in any modern sense (as property qualifications to vote were abolished for everyone over 21), and not until after WW2 that decolonisation, university constituencies and lowering of the voting age took place. Parliament's main functions are to legislate, to allocate money for public spending,[108] and to scrutinise the government.[109] In practice many MPs are involved in Parliamentary committees which investigate spending, policies, laws and their impact, and often report to recommend reform. For instance, the Modernisation Committee of the House of Commons in 2002 recommended publishing draft bills before they became law, and was later found to have been highly successful.[110] There are 650 Members of Parliament (MPs) in the House of Commons, currently elected in five year terms unless two-thirds vote for an early election,[111] and 790 peers in the House of Lords. For a proposed Bill to become an Act, and law, it must be read three times in each chamber, and given royal assent by the monarch.

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 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.

Today the House of Commons is the primary organ of representative government. The Representation of the People Act 1983 section 1 gives the right to vote for MP in the House of Commons to all Commonwealth citizens, and citizens of the Republic of Ireland, who are over age 18, and registered. Sections 3 and 4 exclude people who are convicted of an offence and in a penal institution, or detained under mental health laws.[112] These restrictions fall below European standards, which require that people who are convicted of very minor crimes (such as petty theft or drug offences) have the right to vote.[113] Since 2013, everyone has to register individually to vote (for instance, at www.gov.uk/register-to-vote), instead of households being able to register collectively, but an annual household canvass is conducted to increase the number of registered people.[114] As far back as 1703,Ashby v White recognised the right to "vote at the election of a person to represent him or [her] in Parliament, there to concur to the making of laws, which are to bind his liberty and property" as "a most transcendent thing, and of an high nature". [115] This originally meant that any interference in that right would lead to damages. If the denial of voting would have changed the result, or if a vote was "conducted so badly that it was not substantially in accordance with the law" the vote would have to be run again.[116] So, in Morgan v Simpson the Court of Appeal declared that an election for a Greater London Council seat was not valid after it was found that 44 unstamped ballot papers were not counted. These common law principles predate statutory regulation, and therefore appear to apply to any vote, including elections and referendums.[117] Election spending is tightly controlled today by statute. A maximum of £20 million can be spent by political parties in national campaigns, plus £10,000 in each constituency.[118] Political advertisements on television are prohibited except for those in certain free time slots,[119] although the internet remains largely unregulated. Any spending over £500 by third parties must be disclosed. While these rules are strict, they were held in Animal Defenders International v UK to be compatible with the Convention because "each person has equal value" and "we do not want our government or its policies to be decided by the highest spenders."[120] Foreign interference in voting is completely prohibited, including any "broadcasting" (also over the internet) "with intent to influence persons to give or refrain from giving their votes".[121] Donations by foreign parties can be forfeited in their entirety to the Electoral Commission.[122] Domestic donations are limited to registered parties, and must be reported, when they are over £7,500 nationally or £1,500 locally, to the Electoral Commission.[123] The system for electing the Commons is based on constituencies, whose boundaries are periodically reviewed to even out populations.[124] There has been considerable debate about the first-past-the-post system of voting the UK uses, as it tends to exclude minority parties. By contrast, in Australia voters may select preferences for candidates, although this system was rejected in a 2011 United Kingdom Alternative Vote referendum staged by the Cameron-Clegg coalition. In the European Parliament, voters choose a party from multi-member regional constituencies: this tends to give smaller parties much greater representation. In the Scottish Parliament, Welsh Assembly and London Assembly, voters have the choice of both constituencies and a party list, which tends to reflect overall preferences best. To be elected as an MP, most people generally become members of political parties, and must be over 18 on the day of nomination to run for a seat,[125] be a qualifying Commonwealth or Irish citizen,[126] not be bankrupt,[127] found guilty of corrupt practices,[128] or be a Lord, judge or employee of the civil service.[129] To limit the government's practical control over Parliament, the Ministerial and Other Salaries Act 1975 restricts higher payment of salaries to a set number of MPs.[130]

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.
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.

Along with a hereditary monarch, the House of Lords remains an historical curiosity in the UK constitution. Traditionally it represented the landed aristocracy, and political allies of the monarch or the government, and has only gradually and incompletely been reformed. Today, the House of Lords Act 1999 has abolished all but 92 hereditary peers, leaving most peers to be "life peers" appointed by the government under the Life Peerages Act 1958, law lords appointed under the Appellate Jurisdiction Act 1876, and Lords Spiritual who are senior clergy of the Church of England.[131] Since 2005, senior judges can only sit and vote in the House of Lords after retirement.[132] The government carries out appointment of most peers, but since 2000 has taken advice from a seven-person House of Lords Appointments Commission with representatives from the Labour, Conservatives and Liberal-Democrat parties.[133] A peerage can always be disclaimed,[134] and ex-peers may then run for Parliament.[135] Since 2015, a peer may be suspended or expelled by the House.[136] In practice the Parliament Act 1949 greatly reduced the House of Lords' power, as can only delay and cannot block legislation by one year, and cannot delay money bills at all.[137] Nevertheless, several options for reform are debated. A House of Lords Reform Bill 2012 proposed to have 360 directly elected members, 90 appointed members, 12 bishops and an uncertain number of ministerial members. The elected Lords would have been elected by proportional representation for 15 year terms, through 10 regional constituencies on a single transferable vote system. However, the government withdrew support after backlash from Conservative backbenches. It has often been argued that if the Lords were elected by geographic constituencies and a party controlled both sides "there would be little prospect of effective scrutiny or revision of government business." A second option, like in Swedish Riksdag, could simply be to abolish the House of Lords: this was in fact done during the English Civil War in 1649, but restored along with the monarchy in 1660.[138] A third proposed option is to elect peers by work and professional groups, so that health care workers elect peers with special health knowledge, people in education elect a fixed number of education experts, legal professionals elect legal representatives, and so on.[139] This is argued to be necessary to improve the quality of legislation.

Judiciary

Proceedings in the UK Supreme Court, which moved to its modern home at Middlesex Guildhall in 2009, are web-streamed live, and judges no longer wear wigs.
Proceedings in the UK Supreme Court, which moved to its modern home at Middlesex Guildhall in 2009, are web-streamed live, and judges no longer wear wigs.

The judiciary in the United Kingdom has the essential functions of upholding the rule of law, democracy, and human rights. The highest court of appeal, renamed from the House of Lords in 2005, is the UK Supreme Court. Since the 1966 Practice Statement, the judiciary has acknowledged that while a system of precedent, that binds lower courts, is necessary to provide "at least some degree of certainty", the courts should update their jurisprudence and "depart from a previous decision when it appears right to do so."[140] Litigation usually begins in a County Court or the High Court for civil law issues,[141] or a Magistrates' court or Crown Court for criminal law issues. There are also Employment Tribunals for labour law disputes,[142] and a system of First-tier Tribunals for public or regulatory disputes, ranging from immigration, to social security, to tax.[143] After the High Court, Crown Court, or appeal Tribunals, cases generally may appeal to the Court of Appeal in England and Wales. In Scotland, the Court of Session has an Outer (first instance) and Inner (appeal) House. Appeals then go to the UK Supreme Court, although at any time a court may make a "preliminary reference" to the Court of Justice of the European Union to clarify the meaning of EU law. Since the Human Rights Act 1998, courts have been expressly required to interpret UK law to be compatible with the European Convention on Human Rights. This follows a longer tradition of courts interpreting the law to be compatible with international law obligations.[144] It is generally accepted that the UK courts do not merely apply but also create new law through their interpretative function: this is obvious in the common law and equity, where there is no codified statutory basis for large parts of the law, such as contracts, torts or trusts. This also means an element of retroactivity,[145] since an application of developing rules may differ from at least one party's understanding of the law in any conflict.[146] Although formally the UK judiciary may not declare an Act of Parliament "unconstitutional",[147] in practice the judiciary's power to interpret the law so as to be compatible with human rights can render a statute inoperative, much like in other countries.[148] The courts do so sparingly because they recognise the importance of the democratic process. Judges may also sit from time to time on public inquiries.[149]

The independence of the judiciary is one of the cornerstones of the constitution, and means in practice that judges cannot be dismissed from office. Since the Act of Settlement 1700, no judge has been removed, as to do so the Queen must act on address by both Houses of Parliament.[150] It is very likely that a judge would never be dismissed, not merely because of formal rules but a "shared constitutional understanding" of the importance of the integrity of the legal system.[151] This is reflected, for example, in the sub judice rule that matters awaiting decision in court should not be prejudged in a Parliamentary debate.[152] The Lord Chancellor (once head of the judiciary but now simply a government minister) also has a statutory duty to uphold the independence of the judiciary,[153] for instance, against attacks upon their integrity by media, corporations, or the government itself. Members of the judiciary can be appointed from among any member of the legal profession who has over 10 years of experience having rights of audience before a court: this usually includes barristers, but can also mean solicitors or academics.[154] Appointments should be made "solely on merit" but regard may be had to the need for diversity when two candidates have equal qualifications.[155] For appointments to the Supreme Court, a 5-member Judicial Appointments Committee is formed including one Supreme Court judge, three members from the Judicial Appointments Commission, and one lay person.[156] For other senior judges such as those on the Court of Appeal, or for the Lord Chief Justice, Master of the Rolls, or the heads of the High Court divisions, a similar five member panel with two judges is formed.[157] Gender and ethnic diversity is lacking in the UK judiciary compared to other developed countries, and potentially compromises the expertise and administration of justice.[158] Backing up the judiciary is a considerable body of administrative law. The Contempt of Court Act 1981 enables a court to hold anyone in contempt, and commit the person to imprisonment, for violating a court order, or behaviour that could compromise a fair judicial process. In practice this is enforced by the executive. The Lord Chancellor heads the Ministry of Justice, which performs various functions including administering the Legal Aid Agency for people who cannot afford access to the courts. In R (UNISON) v Lord Chancellor the government suffered scathing criticism for creating high fees that cut the number of applicants to Employment Tribunals by 70 per cent.[159] The Attorney General of the UK and the Solicitor General represent the Crown in litigation. The Attorney General also appoints the Director of Public Prosecutions who heads the Crown Prosecution Service, which reviews cases submitted by the police for prosecution, and conducts them on behalf of the Crown.[160]

Executive

The Prime Minister, at 10 Downing Street, exercises political power of the UK government, when they command majority support of the House of Commons.

The executive branch, while subservient to Parliament and judicial oversight, exercises day to day power of the UK government. In form, the UK remains a constitutional monarchy. The formal head of state is Her Majesty Queen Elizabeth II, a hereditary monarch since 1952. In reality, no Queen or King has attempted to usurp the will of Parliament since 1708,[161] and all constitutional duties and power are accepted by binding convention to have shifted to the Prime Minister, Parliament or the courts.[162] Over the 17th century, the Petition of Right 1628 was asserted by Parliament to prevent any taxation by the monarch without Parliament's consent, and the Habeas Corpus Act 1640 denied the monarch any power to arrest people for failing to pay taxes. The monarch's continued assertion of the divine right to rule led to Charles I being executed in the English Civil War, and finally the settlement of power in the Bill of Rights of 1689. Following the Act of Union 1707 and an early financial crisis as South Sea Company shares crashed, Robert Walpole emerged as a dominant political figure. Leading the House of Commons from 1721 to 1742, Walpole is generally acknowledged to be the first Prime Minister (Primus inter pares). The PM's modern functions include leading the dominant political party, setting policy priorities, creating Ministries and appointing ministers, judges, peers, and civil servants. The PM also has considerable control through the convention of collective responsibility (that ministers must publicly support the government even when they privately disagree, or resign), and control over the government's communications to the public. By contrast in law, as is necessary in a democratic society,[163] the monarch is a figurehead with no political power,[164] but a series of ceremonial duties, and considerable funding. Aside from private wealth and finance,[165] the monarchy is funded under the Sovereign Grant Act 2011, which reserves 25 per cent of the net revenue from the Crown Estate.[166] The Crown Estate is a public, government corporation,[167] which in 2015 held £12 billion in investments, mostly land and property, and therefore generates income by charging rent to businesses or people for homes.[168] The monarch's major ceremonial duties are to appoint the Prime Minister who can command the majority of the House of Commons,[169] to give royal assent to Acts of Parliament, and to dissolve Parliament upon the calling of an election.[170] Minor ceremonial duties include giving an audience to the Prime Minister, as well as visiting ministers or diplomats from the Commonwealth, and acting on state occasions, such as delivering the "Queen's speech" (written by the government, outlining its political platform) at the opening of Parliament. It has frequently been debated whether the UK should abolish the monarchy, on the ground that hereditary inheritance of political office has no place in a democracy. On the other hand, there are powerful attachments of emotion and tradition: in Australia a referendum was held in 1999 on becoming a Republic, but failed to get a majority.[171]

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.
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.

Although called the royal prerogative, a series of important powers that were once vested in the King or Queen are now exercised by government, and the Prime Minister in particular. These are powers of day-to-day management, but tightly constrained to ensure that executive power cannot usurp Parliament or the courts. In the Case of Prohibitions in 1607,[172] it was held that the royal prerogative could not be used to determine court cases, and in the Case of Proclamations in 1610 it was held new prerogative powers could not be created by the executive.[173] It is also clear that no exercise of the prerogative can compromise any right contained in an Act of Parliament. So, for instance, in R (Miller) v Secretary of State for Exiting the EU the Supreme Court held that the Prime Minister could not notify the European Commission of an intention to leave under Article 50 of the Treaty on European Union without an Act of Parliament, because it could result in rights being withdrawn that were granted under the European Communities Act 1972, such as the right to work in other EU member states or vote in European Parliament elections.[174] Royal prerogative powers can be categorised in different ways,[175] there are around 15.[176] First, the executive may create hereditary titles, confer honours and create peers.[177] Second, the executive can legislate by an Order in Council, though this has been called an 'anachronistic survival'.[178] Third, the executive can create and administer financial benefits schemes.[179] Fourth, through the Attorney General the executive can stop prosecutions or pardon convicted offenders after taking advice.[180] Fifth, the executive may acquire more territory or alter limits of British territorial waters.[181] Sixth, the executive may expel aliens and theoretically restrain people from leaving the UK.[182] The executive can sign treaties, although before it is considered ratified the treaty must be laid before Parliament for 21 days and there must be no resolution against it.[183] Eighth, the executive governs the armed forces and can do "all those things in an emergency which are necessary for the conduct of war".[184] The executive cannot declare war without Parliament by convention, and in any case has no hope in funding war without Parliament.[185] Ninth, the Prime Minister can appoint ministers, judges, public officials or royal commissioners. Tenth, the monarch needs to pay no tax, unless statute states it expressly.[186] Eleventh, the executive may by royal charter create corporations, such as the BBC,[187] and franchises for markets, ferries and fisheries.[188] Twelfth, the executive has the right to mine precious metals, and to take treasure troves. Thirteenth, it may make coins. Fourteenth, it can print or license the authorised version of the Bible, Book of Common Prayer and state papers. And fifteenth, subject to modern family law, it may take guardianship of infants.[189] In addition to these royal prerogative powers, there are innumerable powers explicitly laid down in statutes enabling the executive to make legal changes. This includes a growing number of Henry VIII clauses, which enable a Secretary of State to alter provisions of primary legislation. For this reason it has often been argued that executive authority should be reduced, written into statute, and never used to deprive people of rights without Parliament. All uses of the prerogative, however, are subject to judicial review: in the GCHQ case the House of Lords held that no person could be deprived of legitimate expectations by use of the royal prerogative.[190]

Whitehall hosts the major offices of the UK government, led by cabinet ministers. Facing towards Big Ben is a statue of Charles I, who was executed in 1649 for denying the rights of Parliament.
Whitehall hosts the major offices of the UK government, led by cabinet ministers. Facing towards Big Ben is a statue of Charles I, who was executed in 1649 for denying the rights of Parliament.

Although the Prime Minister is the head of Parliament, Her Majesty's Government is formed by a larger group of Members of Parliament, or peers. The "cabinet" is a still smaller group of 22 or 23 people, though only twenty ministers may be paid.[191] Each minister typically heads a Department or Ministry, which can be created or renamed by prerogative.[192] Cabinet committees are usually organised by the Prime Minister. Every minister is expected to follow collective responsibility,[193] and the Ministerial Code 2010. This includes rules that Ministers are "expected to behave in a way that upholds the highest standards of propriety", "give accurate and truthful information to Parliament", resign if they "knowingly mislead Parliament", to be "as open as possible", have no possible conflicts of interest and give a full list of interests to a permanent secretary, and only "remain in office for so long as they retain the confidence of the Prime Minister". Assisting ministers is a modern civil service and network of government bodies, who are employed at the pleasure of the Crown.[194] The Civil Service Code requires civil servants to show "high standards of behaviour", uphold core values of "integrity, honesty, objectivity and impartiality", and never put themselves in a position that "might reasonably be seen to compromise their personal judgment or integrity".[195] Since the Freedom of Information Act 2000, it has been expected that government should be open about information, and should disclose it upon a request unless disclosure would compromise personal data, security or may run against the public interest.[196] In this way the trend has been to more open, transparent and accountable governance.

Civil and public service

UK central government expenditure, 2016-17. Social protection includes pensions and welfare.[197]
UK central government expenditure, 2016-17. Social protection includes pensions and welfare.[197]

Regional government

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

Administrative law

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 begin in the High Court.
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 begin in the High Court.

Administrative law, through judicial review, is essential to hold executive power and public bodies accountable under the law. In practice, constitutional principles emerge through cases of judicial review, because every public body, whose decisions affect people's lives, is created and bound by law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest",[198] within three months of the grounds of the cause of action becoming known.[199] Almost any public body, or private bodies exercising public functions,[200] can be the target of judicial review, including a government department, a local council, any Minister, the Prime Minister, or any other body that is created by law. The only public body whose decisions cannot be reviewed is Parliament, when it passes an Act. Otherwise, a claimant can argue that a public body's decision was unlawful in five main types of case:[201] (1) it exceeded the lawful power of the body or used its power for an improper purpose,[202] (2) acted unreasonably or violated a legitimate expectation,[203] (3) failed to exercise relevant and independent judgement,[204] (4) exhibited bias or a conflict of interest, or failed to give a fair hearing,[205] and (5) violated a human right.[206] As a remedy, a claimant can ask for the public body's decisions to be declared void and quashed (before certiorari), or it could ask for an order to make the body do something (or mandamus), or prevent the body from acting unlawfully (or prohibition). A court may also declare the parties' rights and duties, give an injunction, or compensation could also be payable in tort or contract.[207]

Substantive judicial review

Big Ben at sunset - 2014-10-27 17-30.jpg

As judicial review developed over the late 20th century, several categories of claim have become well-established which target the substance (as opposed to the procedure) of a decision in judicial review.

Procedural review

Big Ben London 2014.jpg

Human rights review

Public body liability

  • Duncan v Cammell Laird & Co [1942] AC 624
  • R (Khawaja) v Home Secretary [1984] AC 74

Human rights

Liberty

Association

  • ECHR article 11, freedom of association and article 14, non-discrimination
  • Duncan v Jones [1936] 1 KB 218
  • DPP v Jones [1999] 2 AC 240
  • R (Laporte) v Gloucestershire Chief Constable [2006] UKHL 55
  • Austin v Metropolitan Police Commissioner [2009] UKHL 5
  • Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504
  • City of London v Samede [2012] EWCA Civ 160

Privacy

Expression

Social security

See also

Notes

  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 Organization 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] UKHL 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. ^ See also a photo of the first General Assembly.
  22. ^ 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."
  23. ^ 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.’
  24. ^ Treaty of Versailles 1919 Part XIII, statute of the International Labour Organization
  25. ^ See the International Organisations Act 1968 ss 1-8
  26. ^ United Nations Act 1946 s 1
  27. ^ See the Legality of the Iraq War page.
  28. ^ 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
  29. ^ Treaty on European Union art 2
  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. ^ 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
  32. ^ 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".
  33. ^ [1990] UKHL 7
  34. ^ [1990] UKHL 7
  35. ^ [2014] UKSC 3
  36. ^ [2017] UKSC 5
  37. ^ See Opinion polling for the United Kingdom European Union membership referendum#Post–referendum polling
  38. ^ [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.
  39. ^ 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."
  40. ^ cf Aristotle, Politics (330 BCE) 3.16, ‘It is more proper that law should govern than any one of the citizens’.
  41. ^ 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.’
  42. ^ R (Jackson) v Attorney General [2005] UKHL 56, [104] per Lord Hope
  43. ^ 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’.
  44. ^ AV Dicey, Introduction to the Study of the Law of the Constitution (3rd edn 1889) Part II, ch IV, 189, first "absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power", second "equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts" and third, "principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants". See also J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195. Contrast D Lino, ‘The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context’ (2018) 81(5) Modern Law Review 739. Previously, discourse among international finance followed a restrictive ideal: M Stephenson, ‘Rule of Law as a Goal of Development Policy’ (2008) World Bank Research
  45. ^ Constitutional Reform Act 2005 ss 1, 63-65 and Schs 8 and 12
  46. ^ Entick v Carrington [1765] EWHC KB J98
  47. ^ Malone v United Kingdom (1984) 7 EHRR 14
  48. ^ 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.’
  49. ^ [1765] EWHC KB J98
  50. ^ European Convention on Human Rights art 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
  51. ^ [1979] Ch 344
  52. ^ [1984] ECHR 10, (1984) 7 EHRR 14
  53. ^ Originally the Interception of Communications Act 1985, and now the Regulation of Investigatory Powers Act 2000 ss 1-11, as amended by the Data Retention and Investigatory Powers Act 2014.
  54. ^ 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’.
  55. ^ [2008] UKHL 60, [2]-[7]
  56. ^ R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [55]
  57. ^ See A v Home Secretary [2004] UKHL 56, Lord Nicholls, ‘indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’.
  58. ^ [2017] UKSC 51, [66]-[68]
  59. ^ e.g. M v Home Office [1993] UKHL 5, holding the Home Secretary, Kenneth Baker, in contempt of court for failing to return a Zaire teacher to the UK on refugee status, despite a High Court judge ordering it be done.
  60. ^ Montesquieu, The Spirit of the Laws (1748) Book XI, ch 6, ‘When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty.’
  61. ^ AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2014) 94. cf W Bagehot, The English Constitution 65, the ‘efficient secret’ of the UK constitution was ‘the close union, the nearly complete fusion, of the legislative and executive powers’.
  62. ^ Constitutional Reform Act 2005 ss 108-9
  63. ^ Constitutional Reform Act 2005 s 3.
  64. ^ cf A Bradley, ‘The Sovereignty of Parliament – Form or Substance?’ in Jowell, The Changing Constitution (7th edn 2011) 35, ‘A further question is whether the democratic process in the UK works so well as to justify the absence of any limit on the authority of Parliament to legislate.’ Criticising AV Dicey, The Law of the Constitution (10th edn 1959) 73, who said ‘The electors in the long run can always enforce their will’, on the basis that executive dominance over Parliament might require revisions of the extent of the concept.
  65. ^ Lord Bingham, ‘The Rule of Law and the Sovereignty of Parliament’ (31 October 2007) Speech given at King's College, London. It is also a considered that the rule of law is necessary for democracy, e.g. 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." Lord Woolf [1995] PL 57, ‘Our Parliamentary democracy is based on the Rule of Law.... If Parliament did the unthinkable then I would say that the courts would also be required to act in a manner which would be unprecedented." Reference on Quebec (1998) 161 DLR (4th) 385, 416, "democracy in any real sense of the word cannot exist without the rule of law." R (UNISON) v Lord Chancellor [2017] UKSC 51, [68] "Without such access [to courts], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade."
  66. ^ See Thucydides, History of the Peloponnesian War (c 411 BC) Book 2, para 37. Contrast Aristotle, Nicomachean Ethics, Book V, Parts 3 and 4, translated by DP Chase (favouring aristocracy, by equating it with appointment according "excellence", supposedly), and Plato, The Republic, Book IV, Part V, 139, translated by D Lee (arguing that philosopher kings should rule over a rigid hierarchy where there was "no interchange of jobs").
  67. ^ ECHR 1950 Preamble
  68. ^ See Mathieu-Mohin and Clerfayt v Belgium (1987) 10 EHRR 1, [47] on ECHR 1950 Prot 1, art 3
  69. ^ A Lincoln, Gettysburg Address (1863) "that government of the people, by the people, for the people shall not perish from the Earth".
  70. ^ cf AJ Zurcher, 'The Hitler Referenda' (1935) 29(1) American Political Science Review 91
  71. ^ See FL Neumann, The Democratic and the Authoritarian State (1957) 186-193
  72. ^ J Habermas, Between Facts and Norms (1996) 135, ‘the only law that counts as legitimate is one that could be rationally accepted by all citizens in a discursive process of opinion- and will-formation.’
  73. ^ e.g. R Dworkin, ‘Constitutionalism and Democracy’ (1995) 3(1) European Journal of Philosophy 2-11, 4-5, a constitutional democracy means: (1) ‘a majority or plurality of people’ (2) ‘all citizens have the moral independence necessary to participate in the political decision as free moral agents’ (3) ‘the political process is such as to treat all citizens with equal concern’. D Feldman, Civil Liberties and Human Rights in England and Wales (2002) 32-33 ‘it would be perverse to argue that there is anything undemocratic about a restriction on the capacity of decision-makers to interfere with the rights which are fundamental to democracy itself’. See also Matadeen v Pointu [1999] 1 AC 98, Lord Hoffmann, “Their Lordships do not doubt that such a principle [of equality] is one of the building blocks of democracy and necessarily permeates any democratic constitution."
  74. ^ See Universal Declaration of Human Rights 1948 arts 21 and 29(2), International Covenant on Civil and Political Rights 1966 art 25, International Covenant on Economic, Social and Cultural Rights 1966, art 4
  75. ^ Archie v Law Association of Trinidad and Tobago [2018] UKPC 23, [18] Lady Hale, "A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons." cf KD Ewing, ‘The Resilience of the Political Constitution’ [2013] 14(12) German Law Journal 2111, 2116, suggesting the current political constitution of the UK is not necessarily the same as a fully democratic constitution.
  76. ^ (1703) 2 Ld Raym 938, dissent approved by the House of Lords.
  77. ^ [1975] QB 151
  78. ^ Animal Defenders International v United Kingdom [2008] UKHL 15, [48] and see also [2013] ECHR 362
  79. ^ Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2]. See also O'Rourke v Camden London Borough Council [1998] AC 188, "the [Housing] Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy."
  80. ^ e.g. Johnson v Unisys Limited [2001] UKHL 13, and Gisda Cyf v Barratt [2010] UKSC 41, [39]
  81. ^ See, for example, J Lobel, 'The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law' (1985) 71(7) Virginia Law Review 1071. J Habermas, 'The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society' (2008) 15(4) Constellations 444. In Germany, see Grundgesetz 1949 art 25, "The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory." In the EU, see Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05, holding that international law binds EU law unless it requires an act that would run contrary to basic human rights.
  82. ^ e.g. Magna Carta 1215, ch 41, ‘All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us...’
  83. ^ Coke, 1 Institutes 182
  84. ^ See 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, as contrary to the Confirmation of Charters, Weirs, Taxation Act 1371, 45 Edw 3 c 4, which prohibited indirect taxation without consent of Parliament. The 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. Then, the Case of Ship Money or R v Hampden (1637) 3 St Tr 825 held that the King could raise money from trade without Parliament. This was reversed by the Shipmoney Act 1640, and after the civil war and glorious revolution, once again by the Bill of Rights 1689 art 4.
  85. ^ Lethulier's Case (1692) 2 Salk 443, "we take notice of the laws of merchants that are general, not of those that are particular."
  86. ^ Luke v Lyde (1759) 97 Eng Rep 614, 618; (1759) 2 Burr 882, 887
  87. ^ Pillans v Van Mierop (1765) 3 Burr 1663
  88. ^ Somerset v Stewart (1772) 98 ER 499, "The state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law; the origin of it can in no country or age be traced back to any other source: immemorial usage preserves the memory of positive law long after all traces of the occasion; reason, authority, and time of its introduction are lost..."
  89. ^ Saad v SS for the Home Department [2001] EWCA Civ 2008, [15] Lord Phillips MR, quoting 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.”
  90. ^ R v Lyons [2002] UKHL 44, [27] Lord Hoffmann
  91. ^ [2014] UKSC 47
  92. ^ See further R (SG) v SS for Work and Pensions [2015] UKSC 16, on the benefits cap, Lord Kerr, dissenting, at [247]-[257] argued the dualist theory of international law should be abandoned, and international law should be directly effective in UK law.
  93. ^ Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05
  94. ^ See the Venice Commission, Code of Practice on Referendums (2007) on asking questions with concrete, determinative choices.
  95. ^ For principles of treaty interpretation, see the Vienna Convention on the Law of Treaties 1969
  96. ^ e.g. Winston Churchill, '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
  97. ^ cf World Trade Organization (Immunities and Privileges) Order 1995
  98. ^ On the post-referendum crisis, see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and European Union (Notification of Withdrawal) Act 2017 s 1, giving power to the PM to notify intention to negotiate to leave the EU.
  99. ^ See House of Commons, Digital, Culture, Media and Sport Committee, Disinformation and ‘fake news’: Interim Report (29 July 2018) HC 363 and Electoral Commission, Report of an investigation in respect of Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain (17 July 2018). Litigated in Wilson v Prime Minister [2018] EWHC 3520 (Admin), and see E McGaughey, 'Could Brexit be Void?' (2018) King's Law Journal.
  100. ^ The Parliament Act 1911 set elections to take place at a maximum of each five years, but elections usually occurred in a fourth year. Before this the maximum was seven years, but in practice governments called votes sooner.
  101. ^ Fixed-term Parliaments Act 2011 s 1(3). By contrast, Australia has elections each 3 years, and the US has presidential elections each 4 years.
  102. ^ Parliament Act 1911 and Parliament Act 1949.
  103. ^ Life Peerages Act 1958 s 1
  104. ^ House of Lords Act 1999 ss 1-2, or 90 plus the "Lord Great Chamberlain" and the "Earl Marshal".
  105. ^ R (Simms) v SS for the Home Department [1999] UKHL 33, [2000] 2 AC 115, 131, Lord Hoffmann
  106. ^ Following Magna Carta 1215, see the Acts of Supremacy 1534, the Earl of Oxford's case (1615) 21 ER 485, and the Bill of Rights 1689
  107. ^ This was represented by the Parliament Act 1911, following the People's Budget of 1909.
  108. ^ Bill of Rights 1689 art 4, levying money for the Crown without Parliament's consent is illegal. Each year a Supply and Appropriation (Anticipation and Adjustments) Bill, typically passed in March, provides money on account to fund activities from the start of the new financial year. A Supply and Appropriation (Main Estimates) Bill, typicalled passed in July, authorises issue of money from the Consolidated Fund for the balance of the grant of estimates for the financial year, with a detailed schedule of total net resources, capital and cash authorised for each department.
  109. ^ See JS Mill, Considerations on Representative Government (1861) ch 5. AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) ch 8.
  110. ^ HC Modernisation Committee (2001-2) HC 1168, recommended publishing draft bills, and (2005-6) HC 1097, 'one of the most successful Parliamentary innovations of the last ten years' and 'should become more widespread'.
  111. ^ Fixed-term Parliaments Act 2011 s 1(3)
  112. ^ Mental Health Act 1983 or Criminal Procedure (Insanity) Act 1964
  113. ^ See Hirst v United Kingdom (No 2) [2005] ECHR 681 (blanket disqualification of convicted prisoners from voting breached ECHR Prot 1, art 3. After this the UK failed to change its laws. Green v United Kingdom [2010] ECHR 868 reaffirmed the position. HL Paper 103, HC 924 (2013-14) recommended prisoners serving under 12 months should be entitled to vote. Parliament still did not act. McHugh v UK [2015] ECHR 155, reaffirmed breach but awarded no compensation or costs.However, Moohan v Lord Advocate [2014] UKSC 67 and Moohan v UK (13 June 2017) App No 22962/15, denial of prisoner voting in the Scottish independent referendum was not a breach of art 3.
  114. ^ Electoral Registration and Administration Act 2013 ss 1-5
  115. ^ (1703) 2 Ld Raym 938
  116. ^ Morgan v Simpson [1975] QB 151, per Lord Denning MR
  117. ^ cf Wilson v Prime Minister [2018] EWHC 3520 (Admin), and E McGaughey, 'Could Brexit be Void?' (2018) King's Law Journal
  118. ^ PPERA 2000 ss 72-131 and Schs 8-13, in referendums, the limit has traditionally been set at £600,000 for the official campaigns on each side.
  119. ^ Communications Act 2003 ss 319-333.
  120. ^ Animal Defenders International v United Kingdom [2008] UKHL 15, [48] per Baroness Hale. Confirmed in [2013] ECHR 362.
  121. ^ Representation of the People Act 1983 ss 92. Furthermore, any "trading" with hostile foreign parties with whom the UK is "at war" may lead to seven years in prison. Trading with the Enemy Act 1939 (c 89) ss 1-2, seven years prison for trading with an enemy who is "at war with His majesty".
  122. ^ R (Electoral Commission) v City of Westminster Magistrate's Court and UKIP [2010] UKSC 40, holding that a partial forfeiture of £349,216 donations by a non-UK resident was appropriate.
  123. ^ Political Parties, Elections and Referendums Act 2000 ss 12-69 and 149
  124. ^ Parliamentary Constituencies Act 1986, setting up the Boundary Commission. See also, R (McWhirter) v Home Secretary (21 October 1969) The Times, elector in Enfield sought mandamus ('we command') to require Home Secretary to perform statutory duty of laying before Parliament Commission reports with draft orders in Council.
  125. ^ Electoral Administration Act 2006 s 17
  126. ^ Act of Settlement 1700 s 3 unless ‘qualifying Commonwealth and Irish citizens, British Nationality Act 1981 Sch 7 and Electoral Administration Act 2006 s 18
  127. ^ Insolvency Act 1986 s 426A(5)
  128. ^ RPA 1983 ss 160 and 173
  129. ^ House of Commons Disqualification Act 1957 ss 1 and 5 and House of Commons Disqualification Act 1975 give further exceptions.
  130. ^ Ministerial and Other Salaries Act 1975 ss 1-2
  131. ^ House of Lords Act 1999 ss 1-2
  132. ^ Constitutional Reform Act 2005 s 24
  133. ^ See the Lords Appointments webpage.
  134. ^ Now confirmed in the House of Lords Reform Act 2014
  135. ^ Peerages Act 1963 and Re Parliamentary Election for Bristol South East [1964] 2 QB 257, Viscount Stansgate or Tony Benn challenged the law disqualifying peers standing for Parliament.
  136. ^ House of Lords (Expulsion and Suspension) Act 2015
  137. ^ Parliament Act 1911 ss 1-3 and Parliament Act 1949
  138. ^ An Act abolishing the House of Lords 1649, reading "The Commons of England assembled in Parliament, finding by too long experience that the House of Lords is useless and dangerous to the people of England to be continued, have thought fit to ordain and enact, and be it ordained and enacted by this present Parliament, and by the authority of the same, that from henceforth the House of Lords in Parliament shall be and is hereby wholly abolished and taken away; and that the Lords shall not from henceforth meet or sit in the said House called the Lords' House, or in any other house or place whatsoever..." See also T Benn, 'We should abolish the House of Lords, not reform it' (12 July 2012) New Statesman
  139. ^ cf GDH Cole, Self-Government in Industry (5th edn 1920) ch V, 134-135. S Webb, Reform of the House of Lords (1917) Fabian Tract No. 183, 7, at 12, preferring a chamber of around 100 people elected by proportional representation. E McGaughey, 'A Twelve Point Plan for Labour, and A Manifesto for Labour Law' (2017) 46(1) Industrial Law Journal 169
  140. ^ Practice Statement [1966] 3 All ER 77
  141. ^ This has three divisions: the Administrative, Family and Queen's Bench divisions.
  142. ^ Employment Tribunals Act 1996, appealing to the Employment Appeal Tribunal.
  143. ^ Tribunals, Courts and Enforcement Act 2007, appealing to the appropriate Upper Tribunal division.
  144. ^ e.g. Hounga v Allen [2014] UKSC 47
  145. ^ "The power to interpret is the power to destroy." O Kahn-Freund, 'The Impact of Constitutions on Labour Law” (1976) 35 Cambridge Law Journal 240, 244, paraphrasing Marshall CJ in McCulloch v Maryland (1819) 17 US (4 Wheat) 316
  146. ^ See Re Spectrum Plus Ltd [2005] UKHL 41.
  147. ^ See Pickin v British Railways Board [1974] AC 765
  148. ^ R (Simms) v SS for the Home Department [1999] UKHL 33, per Lord Hoffmann, "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."
  149. ^ Inquiries Act 2005
  150. ^ See now the Constitutional Reform Act 2005 s 33 and Senior Courts Act 1981 s 11(3)
  151. ^ AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2014) 329, ‘whatever the theoretical position, there are a number of reasons which help to ensure that these latter powers are unlikely ever to be used, with the security of judicial tenure relying not so much on legal rules as on a shared constitutional understanding which these rules reflect.’
  152. ^ Codified in 1963, updated in 1972 and 2001, HC Deb (15 December 2001) col 1012.
  153. ^ Constitutional Reform Act 2005 s 3
  154. ^ Courts and Legal Services Act 1990
  155. ^ This was not always true: H Laski (1932) 168-9, between 1832 and 1906, ‘Out of 139 judges appointed, 80 were members of the House of Commons at the time of their nomination; 11 others had been candidates for Parliament’, and that of the 80, ‘63 were appointed by their own party while in office’.
  156. ^ CRA 2005 s 27A and SI 2013/2193. See also Judicial Appointments Regulations 2013 (SI 2192)
  157. ^ CRA 2005 ss 70-79
  158. ^ cf 'Baroness Brenda Hale: "I often ask myself 'why am I here?'" (17 September 2010) Guardian "I'm quite embarrassed to be the only justice to tick a lot of the diversity boxes, for example the gender one, the subject areas in which I'm interested (which are not ones that most of my colleagues have had much to do with up until now), the fact that I went to a non-fee-paying school and the fact that I wasn't a practitioner for any great length of time. I'm different from most of my colleagues in a number of respects (and they're probably at least as conscious of this as I am). I think we could do with more of that sort of diversity."
  159. ^ [2017] UKSC 51
  160. ^ See the Prosecution of Offences Act 1985
  161. ^ Queen Anne withheld royal assent for the Scottish Militia Bill.
  162. ^ See R Blackburn, ‘Monarchy and the personal prerogatives’ [2004] Public Law 546, explaining that the "personal prerogative" of the monarch is a set of powers that must be exercised according to law, and must follow the advice of the Prime Minister, or in accordance with Parliament and the courts.
  163. ^ n.b. the Monarch continued to withhold royal assent for laws in British colonies leading, for example, to the American Revolution and US Declaration of Independence in 1776.
  164. ^ cf W Bagehot, The English Constitution (1867) 111, suggesting the monarch has a right to be consulted, to encourage and to warn.
  165. ^ The Sunday Times Rich List 2015 estimated the Queen's personal wealth at £340 million, making her the 302nd richest person in the UK: H Nianias, 'The Queen drops off the top end of the Sunday Times Rich List for the first time since its inception' (26 April 2015) The Independent
  166. ^ Sovereign Grant Act 2011 ss 1-6. This was raised from 15% by SI 2017/438 art 2.
  167. ^ Crown Estate Act 1961 s 1, up to eight Crown Estate Commissioners are appointed by the monarch on PM advice.
  168. ^ 'Crown Estate makes record £304m Treasury payout' (28 June 2016) BBC News. See map.whoownsengland.org and the colour purple for the Crown Estate. This includes (1) retail property such as Regent Street in London, commercial property in Oxford, Milton Keynes, Nottingham, Newcastle, etc., and a right to receive 23% of the income from the Duchy of Lancaster's Savoy Estate in London (2) 116,000 hectares of agricultural land and forests, together with minerals and residential and commercial property (3) rights to extract minerals covers some 115,500 hectares (4) 55% of the UK's foreshore, and all of the UK's seabed from mean low water to the 12-nautical-mile (22 km) limit, plus sovereign rights of the UK in the seabed and its resources vested by the Continental Shelf Act 1964.
  169. ^ I Jennings, Cabinet Government (3rd edn 1959) ch 2
  170. ^ Fixed-term Parliaments Act 2011
  171. ^ The vote was 45.13% in favour of becoming a republic, but on a model of having a directly elected president. 54..87% of voters opposed this. See [2000] Public Law 3.
  172. ^ Case of Prohibitions [1607] EWHC J23 (KB), per Coke CJ, "true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects".
  173. ^ Case of Proclamations [1610] EWHC KB J22
  174. ^ R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5
  175. ^ cf AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) ch 10 258-265, listing 9 categories.
  176. ^ HC Deb (21 April 1993) col 490 and HC 422 (2003-4) Treasury Solicitor, suggesting an exhaustive catalogue of powers is probably not possible, but listing major categories.
  177. ^ Subject to the Life Peerages Act 1958 and House of Lords Act 1999 s 1
  178. ^ See R v Secretary of State for Foreign and Commonwealth Affairs, ex p Bancoult (No 2) [2008] UKHL 61, [69] per Lord Bingham
  179. ^ R (Lain) v Criminal Injuries Compensation Board [1967] 2 QB 864, 886. R (Harrison) v Home Secretary [1988] 3 All ER 86. R (FBU) v Home Secretary [1995] 2 AC 513, Re Lord Bishop of Natal (1864) 3 Moo PC (NS) 115
  180. ^ Allen (1862) 1 B&S 850 and Criminal Appeal Act 1995 s 16
  181. ^ e.g. the Island of Rockall was seized in 1955, and later recognised in the Island of Rockall Act 1972. See R (Lye) v Kent JJ [1967] 2 QB 153 on alterations.
  182. ^ Nissan v AG [1970] AC 179, now regulated by Immigration Act 1971 s 33(5). The power of expulsion is considered 'doubtful' outside statute: AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) ch 10, 261
  183. ^ Constitutional Reform and Governance Act 2010 s 20, codifying the previous Ponsonby Rule.
  184. ^ Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, 101
  185. ^ This convention was established through the Iraq war, where Parliament backed an invasion contrary to international law in 2003, and a vote against an invasion of Syria in 2013.
  186. ^ Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584
  187. ^ e.g. MoJ, Rev of the Exec Royal Prer Powers (2009) 23
  188. ^ Spook Erection Ltd v Environment Secretary [1989] QB 300 (beneficiary of market franchise not entitled to Crown’s exemption from planning control)
  189. ^ e.g. Butler v Freeman (1756) Amb 302, In re a Local Authority [2003] EWHC 2746, Scott v Scott [1913] AC 417.
  190. ^ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
  191. ^ Ministerial Salaries Act 1975. See also, recognising the PM's position, the Chequers Estate Act 1917, Chevening Estate Act 1959, Ministerial and other Pensions and Salaries Act 1991
  192. ^ Ministers of the Crown Act 1975 s 5. Under the Crown Proceedings Act 1947 s 17 the Minister for Civil Service (i.e. the PM) maintains a list of govt departments (for the purpose of proceedings against the Crown).
  193. ^ See AG v Jonathan Cape Ltd [1976] QB 752, suggesting the duty of confidentiality expires after a number of years out of government.
  194. ^ Constitutional Reform and Governance Act 2010 s 3, putting management of the civil service into statute. Civil Service Management Code s 11.1.1, civil servants employed at pleasure of the Crown, theoretically lacking a wrongful dismissal remedy according to somewhat outdated case law: Dunn v R [1896] 1 QB 116 and Riordan v War Office [1959] 1 WLR 1046, but under the Employment Rights Act 1996 s 191, civil servants expressly have the right to claim unfair dismissal.
  195. ^ This is elaborated upon in a much larger Civil Service Management Code. See also the Prevention of Corruption Act 1906 and 1916. The Osmotherly Rules guide civil servants on how to answer questions from Parliament committees.
  196. ^ Freedom of Information Act 2000 ss 1 and 21-44. Sch 1 lists public bodies that are subject. The BBC can only be required to disclose information held for non-journalistic purposes, to protect freedom of expression: Sugar v BBC [2012] UKSC 4 and BBC v Information Commissioner [2009] UKHL 9
  197. ^ "Budget 2016" (PDF). HM Treasury. March 2016. p. 5.
  198. ^ Senior Courts Act 1981 s 31(3)
  199. ^ 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.
  200. ^ R (Datafin) v Panel on Takeovers and Mergers [1987] QB 815
  201. ^ 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.
  202. ^ Ridge v Baldwin [1964] AC 40 (following law). Padfield v Minister of Agriculture [1968] AC 997 (improper purpose), R v Home Secretary ex p Venables and Thompson [1998] AC 407 (irrelevant consideration).
  203. ^ Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (unreasonableness loosely defined); 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)
  204. ^ R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 (independent judgement)
  205. ^ 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).
  206. ^ Human Rights Act 1998 ss 3-6
  207. ^ Senior Courts Act 1981 s 31(1)

References

Articles
Books
Textbooks
  • AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018)
  • H Kelsen, Principles of International Law (1952)
  • 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 links

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