on 01-Jul-2016 (Fri)

The Montevideo Convention on Rights and Duties of States 1933, art 1 defines a state as follows: 'The State as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states.'

Lord Bolingbroke described a constitution as: '… that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system according to which the community hath agreed to be governed.' A Dissertation Upon Parties (1841)

Finer, a political scientist and jurist, adopted a narrower definition. He described constitutions as those: '... codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and offices of government, and define the relationships between them and the public.' Five Constitutions (1979)

Additionally, the word 'constitution' can signify in more basic terms a document or series of documents: '… having a special legal sanctity which sets out the framework and the principal functions of the organs of State and declares the principles governing the operations of those organs.' Constitution of the United States of America (1787)

From the definitions given above, the general function and purpose of a constitution can be ascertained. Broadly speaking, it is to ensure the allocation of power amongst the various bodies that compose a state and between the state and its citizens. It can also be argued that a constitution exists to ensure citizens are governed in accordance with democratic principles and that those who govern have legitimacy for their actions. This is known as 'constitutionalism'.

The US Constitution is a very good example of an entrenched constitution. In order to make a constitutional amendment, a proposal firstly has to be passed by both houses in Congress (the legislature) with a two-thirds majority. The proposal then has to be ratified by the individual states on a 75 per cent majority basis.

On the other hand, a flexible constitution is one where any laws, including constitutional laws, can be amended in the normal or standard way. In the UK, Parliament is the supreme law-making body and it can pass, amend, or repeal any law with a simple majority. The Human Rights Act 1998, for example, could be expressly amended or even repealed entirely in exactly the same way as any other Act of Parliament. No special mechanisms are necessary to change important constitutional laws in the UK. This is a consequence of the central place of parliamentary supremacy (or sovereignty) in the UK

A supreme constitution is one where the legislative powers of the sovereign body are unlimited. Conversely, where the powers of the sovereign body are limited by some higher law, the constitution is said to be subordinate. For example, in a federal state, a regional province's legislative power may be limited by national constraints. This situation was characteristic of some former British colonial states where the scope of their legislative power was limited by the higher legal authority of Westminster.

Conversely, in a federal constitution, power is divided between national (or 'federal') government and states or regional authorities. This model is generally established in a constitutional document, for example the German and US Constitutions. Some powers, like state security and foreign policy, are likely to be reserved to central government, butthe regional authorities (such as the individual states in the USA or the German 'Bundesländer') have considerable powers to legislate on and administer their own affairs.

Traditionally all statutes in the UK were seen to have the same status, as they are enacted in the same way. None are formally entrenched and all can be repealed by a simple majority in Parliament. As a result, determining which statutes are ‘constitutional' is not immediately obvious; it is a question of what the subject matter of the Act in question concerns. In recent years some Acts of Parliament have become recognised, though, as having a special constitutional status (see Thoburn v Sunderland City Council [2003] QB 15).

This was defined by Professor A.V. Dicey as 'the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown'. Prerogative power is a form of power, recognised by the common law, which has or can have constitutional significance. It comprises all the privileges and immunities recognised at common law as belonging to the Crown. The courts will determine its ambit and existence.

'The House of Commons is not Parliament but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place anyone beyond its control.'

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (Known as the 'GCHQ' case, this case will be discussed at several stages during the course.) Acting pursuant to delegated prerogative power, the Minister for the Civil Service (the then Prime Minister, Margaret Thatcher) issued instructions, altering the conditions of service of civil servants employed at the Government Communication Headquarters (GCHQ) in Cheltenham. These effectively prohibited them from being members of a trade union. Judicial review of the decision was sought by the CCSU on a number of grounds and the key issue became whether the courts could review the exercise of prerogative power. The House of Lords held, in a landmark decision, that the way in which prerogative power was exercised by government could be subject to judicial review.

A and Others v Secretary of State for the Home Department [2004] UKHL 56 (also known as the ‘Belmarsh case’). This case concerned the detention of a number of suspected terrorists held in Belmarsh Prison under the Anti-Terrorism, Crime and Security Act 2001. Section 23 of the Anti-Terrorism, Crime and Security Act 2001permitted detention of suspected international terrorists without charge or trial. Such detention was presumed incompatible with Article 5 of the European Convention on Human Rights, and so the UK initially lodged a derogation from this Article (through the Human Rights Act 1998 (Designated Derogation) Order 2001) in order to allow it to pass the above measure in the first place. However, the House of Lords ruled that the derogation did not satisfy the criteria required: as a result, they quashed the derogation order which then allowed them to issue a declaration of incompatibility in respect of section 23 of the Anti-Terrorism, Crime and Security Act 2001.

One of the characteristics of constitutions in general is that they contain significant areas that are governed by conventions rather than by strict law. This is a particularly notable feature of the UK constitution: many of its important features are regulated by convention alone. For example, the Queen, as head of state and a constituent part of Parliament, has the legal right to refuse royal assent to bills presented to her by Parliament (which would prevent them from becoming law). By convention, however, the Queen does not refuse assent.

Discussing constitutional rules, Dicey, having referred to 'laws', identified a different set of rules consisting of:

'… conventions, understandings, habits or practices, which, though they may regulate the conduct of officials are not in reality laws at all since they are not enforced by the courts.'
Introduction to the Study of the Law of the Constitution (1885)

Dicey argued that conventions are merely descriptive rules of behaviour and are are not binding in law.

Jennings took a slightly different perspective, viewing conventions as actual binding rules of behaviour, albeit that not legally enforceable.

Marshall and Moodie, in Constitutional Conventions, followed a similar approach. They stated that conventions are:

'… rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the law courts … nor by the presiding officers in the Houses of Parliament.'

(a) Conventions relating to the legislature include:
(i) The House of Lords should defer to the House of Commons. This is particularly the case when a bill promoting an election manifesto commitment is being proposed – this is known as the Salisbury Convention.
(ii) Financial bills are only introduced in the House of Commons, and then only by a Cabinet minister.
(iii) Parliament must be summoned to meet at least once a year.
(iv) All parliamentary committees should reflect each party's relative strength in the House of Commons.
(v) MPs have access to the Crown through the Speaker.
(vi) Arguably, a new convention has become established in recent years – notably after the parliamentary vote on Syria in August 2013 – that the Commons should be consulted before the government embarks on significant foreign policy initiatives, involving the use of the armed forces, (otherwise than in an emergency).

(b) Conventions relating to the Executive.
(i) The monarch must act in accordance with the advice provided by her ministers.
(ii) The monarch must not exercise her legal right to refuse to give 'Royal Assent' to bills passed through Parliament.
(iii) The monarch should appoint the leader of the political party who is able to command the confidence of the House of Commons as Prime Minister;
(iv) The Prime Minister chooses the Cabinet.
(v) The Prime Minister and the Chancellor of the Exchequer must be members of the House of Commons;
(vi) The doctrines of collective and individual ministerial responsibility. These will be discussed in more detail in Chapter 3.
(vii) After a vote of no confidence, the government should resign and advise dissolution of Parliament (leading to a general election). (Note that this remains the case under the Fixed-term Parliaments Act 2011, s 2.)
(viii) The monarch must be asked for Royal Consent before bills affecting the personal interests of the monarchy (including those of the Prince of Wales) are introduced to Parliament. (This was the subject of a contested Freedom of Information request for details about the official guidance on this practice in August 2012.)

(c) Conventions relating to the judiciary.
(i) Judges must not be politically active.
(ii) A judge's professional conduct should not be criticised in Parliament except on a motion of dismissal.

(d) Conventions relating to the Commonwealth.
(i) The Governor-General of a Commonwealth country should not be appointed by the Queen unless advice has been taken from the country concerned.
(ii) The UK Parliament should not legislate for an independent Commonwealth nation unless that state has requested and consented to it. (Note too: Statute of Westminster 1931, s 4.)

Purpose/Rationale of Conventions (a) They are a flexible means of changing and developing the constitution informally. According to Jennings, conventions 'fill in the gaps' in the UK's constitution. (b) They define powers, regulate the authority of the Crown and underpin the operation of the Cabinet system. (c) They regulate internal relations between the House of Lords and Commons. (d) They also regulate relations between the UK and other members of the Commonwealth. (e) They help to control and provide accountability of the Executive.

As non-legal rules, the courts are prepared to recognise conventions, but will not enforce them.

Constitutional and Administrative Law 16 (d) Conventions relating to the Commonwealth. (i) The Governor-General of a Commonwealth country should not be appointed by the Queen unless advice has been taken from the country concerned. (ii) The UK Parliament should not legislate for an independent Commonwealth nation unless that state has requested and consented to it. (Note too: Statute of Westminster 1931, s 4.) 2.2.3 Purpose/Rationale of Conventions (a) They are a flexible means of changing and developing the constitution informally. According to Jennings, conventions 'fill in the gaps' in the UK's constitution. (b) They define powers, regulate the authority of the Crown and underpin the operation of the Cabinet system. (c) They regulate internal relations between the House of Lords and Commons. (d) They also regulate relations between the UK and other members of the Commonwealth. (e) They help to control and provide accountability of the Executive. (See Chapter 3 on ministerial responsibility.) Activity point Refer back to your thoughts on the royal assent. Apply Jennings' three stage test and see if you can justify the existence of this convention. Loveland pages 277-278 may assist you. Pick two conventions from the list above and apply Jennings' three stage test to them. 2.2.4 Courts and Conventions As non-legal rules, the courts are prepared to recognise conventions, but will not enforce them. Carltona v Commissioner of Works [1943] 2 All ER 560 The key issue in this case was that the Commissioner of Works had unfairly delegated his power to requisition property to a relatively minor official. Lord Greene MR referred to the relevant convention or principle as follows: 'The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.'

Where there is a conflict between a convention and a law, the courts must enforce the law. Madzimbamuto v Lardner-Burke [1969] 1 AC 645 In this case the Judicial Committee of the Privy Council had to decide whether the Southern Rhodesia Act 1965 should take priority over a convention. The convention required that Parliament should legislate for a Commonwealth country only with the consent of the country's government.

Conventions exist for a number of reasons, as discussed above. If one adheres to the Jennings/Marshall/Munro arguments, conventions are prescriptive and impose an obligation that they should be followed. If they are not followed, however, the consequences are likely to be political rather than legal. Munro argues that the standard or level of obedience depends on the degree of obligation imposed by any particular convention. For example, the convention that the monarch gives assent to bills passed by Parliament imposes a very large degree of obligation and it is highly unlikely that it would ever be breached. Reference Re Amendment to the Constitution of Canada illustrates these issues well. A breach of a convention can also have quasi-legal consequences; see Attorney General v Jonathan Cape Ltd.

An interesting dispute relating to the scope of parliamentary privilege was decided by the Supreme Court in R v Chaytor and Others [2010] UKSC 52. The appellant former MPs were attempting to argue that they should not be subject to the jurisdiction of the Crown Court in relation to charges against them of false accounting (relating to dishonest expenses claims), on the grounds that parliamentary privilege attached to all 'proceedings in Parliament'.

Barnett Constitutional & Administrative Law (5 th Ed, Cavendish (pp 5-6)) explains the operation of the doctrine of constitutionalism in the following terms:
(a) that the exercise of power be within the legal limits conferred by Parliament on those with power – the concept of intra vires – and that those who exercise power should be accountable to law;
(b) the exercise of power – irrespective of legal authority – must conform to the notion of respect for the individual and the individual citizen's rights;
(c) that the powers conferred on institutions within a state – whether legislative, executive or judicial – be sufficiently dispersed between the various institutions so as to avoid abuse of power; and
(d) that the government, in formulating policy, and the legislature, in legitimating that policy, are accountable to the electorate on whose trust power is held.

The Prime Minister determines the size and composition of the Cabinet and the subject matter and composition of Cabinet committees. He also determines when the Cabinet meets and has almost exclusive control over the agenda for discussion. By maintaining control over the Cabinet and discipline within the ruling party, the Prime Minister takes the leading role in deciding the priorities in the government's programme.

According to the convention of collective ministerial responsibility, the Prime Minister, Cabinet, and government are collectively responsible to the House of Commons for their conduct of national affairs and must resign if defeated in a ‘vote of no confidence'.

Since the passing of the Fixed-term Parliaments Act 2011, governments now have a fixed term of office of five years. The only other ways in which an election can now be triggered are if a motion of no confidence is passed and no alternative government is found, or if a motion for an early general election is agreed either by at least two-thirds of the House or without division.

There are three main constitutional principles underpinning the civil service.
(a) Permanence. The principle of permanence means that the civil service does not change hands with each new government. This creates a pool of people with specialist skills and experience on which ministers can draw.
(b) Political neutrality. It is important, if the civil service is to serve successive ministries from different parties, that it is politically neutral. While lower level civil servants are allowed to engage in political activity, those employed in higher grades are prevented from doing so at a national level.
(c) Anonymity. This is important in maintaining the essential political neutrality of the civil service. It also reflects the concept that it is the minister, and not his or her servants, who is responsible for the actions of the department.

Parliamentary questions are seen as one of the more important mechanisms through which information can be gained from ministers about government policy and actions. Questions can be asked in both the House of Commons and the House of Lords. There are two main types of questions: oral and those requiring a written answer.

Answers to questions are prepared in the department of the minister concerned. Ministers are also fully briefed about any related matters that may arise in supplementary questioning. A minister can refuse to answer questions on certain subject matters such as national security.

Question time is not a spontaneous affair and members are required to table their primary question a minimum of two days before sitting. Supplementary questions do not have to be tabled in advance, however.

Prime Minister's Questions Every Wednesday 30 minutes is set aside in Parliament for questions to be directed to the Prime Minister. Usually they start with an 'open question' from an MP about the PM's engagements. This then paves the way for supplementary questions

Private Notice Questions These are urgent oral questions about matters of public importance or arrangement of parliamentary business that have not appeared in the order paper. These questions enable the issue to be discussed immediately after question time. As they are considered to take priority over normal parliamentary business, the Speaker must be given notice before noon on the day the MP wishes to put the question and the Speaker has an absolute discretion as to whether to allow the question.

Questions for Written Answer Many oral questions receive written answers. However, some questions require a written answer as a matter of design. Often this is to enable MPs to pursue a political case or to put pressure on the government on a particular issue or campaign. These questions tend to be more specifically targeted and often require a fuller and more detailed response. There is no limit on the number of these questions that an MP may table.

Debates take place on the floor of the House. Rarely do debates result in decisions, but they can force the government to account for itself and to defend its policies in a public forum. They also enable MPs to test the view of the House over particular issues, which in turn can place considerable pressure on the government. There are many different forms of debates, most notably: main business debates (on legislation), daily adjournment debates, and emergency debates. Emergency debates can be highly significant as they allow MPs to discuss a specific and important issue. A notable example is the emergency debate, which took place on 18 March 2003, on the proposed war in Iraq. MPs can also table Early Day Motions, which are technically calls for debate but which very rarely lead to one, being used far more often to raise a matter of general concern or to launch a campaign on a specific issue.

Select committees are 'permanent' parliamentary committees appointed by the House to perform a variety of tasks on the House's behalf, including scrutinising the work of all government departments and examining expenditure, procedures, and domestic administration of the House. Committees determine the subjects into which they will inquire and they have extensive powers to gather evidence, both written and oral. Their findings and recommendations are submitted to the House and published as reports. There are around 40 select committees in the Commons, comprising departmental and non-departmental committees, domestic and sub-committees. There are also a number of joint committees, which are comprised of members from both Houses, such as the Joint Committee on Human Rights.

Committees have the power to 'send for persons and papers', but they cannot compel ministers to attend and give evidence, and there are no formal requirements regarding ministerial co-operation, with the exception of the Committee on Standards and Privileges. Generally, however, governments will co-operate with the work of select committees and ministers will agree to give evidence when invited. Proposals and reports publicised by select committees are not binding, although the government should reply to a report within 60 days.

An important development in recent years has been the number of bills published in draft form by the government for pre-legislative consideration in Parliament through the select committee system of both Houses. Pre-legislative scrutiny by select committees of draft bills or detailed policy statements is recognised as a useful means of testing government policy, and an increasingly effective process for enhanced parliamentary scrutiny of the executive. For example, as part of this process, the Joint Committee on Human Rights considers draft bills at the pre-legislative stage and reports to both Houses on their compatibility with Convention rights.

Standing committees in the House of Commons are not to be confused with select committees. They are of a temporary nature, being established to examine in detail a bill at the committee stage of its formal passage through Parliament.

One of the most significant downsides of a reliance on Parliament to hold the executive to account is that it is not sufficiently independent in the political sense. In accordance with the principle of separation of powers (see further in Chapter 4), the courts are reluctant to interfere with matters of government policy. 'The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision' (R on the application of A & Others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68). So, when the issue at stake is more political in nature, the courts are more likely to defer to Parliament, as the democratic organ of the state.

One of the most important ways in which the executive can be held to account, at least in principle, is through operation of conventional political practices. The two key political conventions in this area are the so-called 'twin conventions' on ministerial responsibility: collective ministerial responsibility; and individual ministerial responsibility.

The doctrine of collective ministerial responsibility is well established.

'The doctrine of collective ministerial responsibility requires that all ministers, and usually parliamentary private secretaries, must accept Cabinet decisions, or dissent from them privately while remaining loyal to them publicly, or dissent publicly and resign, unless collective responsibility is waived by the Cabinet on any given occasion. If a minister does not resign over an issue of policy or procedure he will be collectively responsible for it, in the sense that he will have to support it publicly through his votes in Parliament and through his speeches.'
R Brazier Constitutional Practice (2nd edn Clarendon Press Oxford 1994)

The principle of collective responsibility, save where it is explicitly set aside, requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained.

The rationale for the convention lies in the need for government to present a united front in order to maintain public and parliamentary confidence. Confidence relates to the idea that the government must enjoy the support and confidence of the House of Commons in order to remain in office. In practice, this does not mean that the government must resign over every defeat. They must only resign if they lose a specific 'no-confidence' motion.

Unanimity requires that, once a decision or agreement has been reached, all ministers should publicly agree with government policy and, if they feel that they cannot do this, they should resign. This applies even if the minister was not present at the discussions. Examples include the resignations in 2003 of John Denham, Minister for Police and Crime Reduction, Robin Cook, the Leader of the House, and Clare Short, the International Development Secretary, in protest at the government's decision to embark upon the war in Iraq.

A more radical way of dealing with the difficulties of collective responsibility is the suspension of the doctrine to allow open dissent within specified limits. This is likely where the political disagreement is of great magnitude and the Prime Minister finds it more expedient to suspend the doctrine temporarily. This occurred in 1975 in relation to the referendum on the membership of the European Communities. (See Loveland pp 270-273.) Another more recent example of this came with the referendum on the Alternative Vote system in May 2011.

Confidentiality encompasses the duty not to disclose confidential information and extends to Cabinet papers and also to ministerial memoirs. There are three exceptions to the rule of collective responsibility:
1. Papers deemed to be in the public domain;
2. Papers dealing with matters known to foreign governments; and
3. Written opinions of law officers.

In Attorney-General v Jonathan Cape, [1976] QB 752 (‘the Crossman Diaries case’) Lord Widgery CJ recognised the convention stating: 'I find overwhelming evidence that the doctrine of joint responsibility is generally understood and practised, and equally strong evidence that it is on occasion ignored.'

The classic doctrine of individual ministerial responsibility required ministers to accept responsibility and, if necessary, resign for any errors and failures of their departments.

The convention is a difficult one, not least because there is considerable academic opinion to the effect that the doctrine in its classic form has rarely been observed in recent times. This leaves open the possibility that the convention might in fact have disappeared. However, there is a pattern emerging where ministers are called upon and feel obliged to resign, not for the failings in the operation of their departments, but for their own errors of judgment. The most quoted example of a minister accepting personal blame for departmental errors and resigning as a consequence is that of Sir Thomas Dugdale in relation to the Crichel Down affair in 1954.

The Crichel Down Affair Land in Devon was acquired by compulsory purchase in 1938 for use as a bombing range. It was subsequently transferred to the Ministry of Agriculture and then to the Commissioner for Crown Lands, who let it to a tenant of their choice. The former owner of the land was denied the right to buy it back, and neighbouring landowners, who were led to believe that they would also be able to bid for it, were denied this opportunity. These events led to an inquiry, where it was concluded that the civil servants in the Ministry of Agriculture had acted in a deceitful way. The Minister of Agriculture, Sir Thomas Dugdale, then resigned.

Following Dugdale's resignation, Sir David Maxwell Fyfe, Home Secretary at the time, distinguished between four different situations, thereby arguably modifying the traditional convention.

1. Where there is an explicit order made by a minister, in which case the minister must protect the civil servant who has carried out his order.
2. When the civil servant acts properly in accordance with policy laid down by the minister, in which case the minister must protect the civil servant.
3. Where an official makes a mistake or causes some delay, but not on an important issue of policy.
4. Where a civil servant has taken the action, of which the minister disapproved and has no prior knowledge and the conduct of the official is reprehensible.

In the first two situations, Maxwell Fyfe believed that the minister should resign. In the remaining two he believed that the minister need not do so

The redefinition of the convention to require some personal knowledge has been strengthened by instances where ministers have not resigned following errors made within their departments. In 1983, the Northern Ireland Secretary, James Prior, did not resign following a mass breakout of IRA prisoners from the Maze prison. Prior distinguished between responsibility for policy, which belonged to the minister, and the failure of officials to properly implement policy, for which he maintained the minister was not necessarily accountable

Loveland notes that it is difficult to extract a rule as to the circumstances under which a minister will be required to resign, and he draws on Finer's suggestion that political expediency rather than political morality may be the touchstone in explaining the scope of the modern doctrine. Political expediency appears to have played some part in the resignation of the Foreign Secretary, Lord Carrington, in 1982, following Argentina's invasion of the Falkland Islands. He had underestimated the threat from Argentina, but would not necessarily have violated any constitutional convention had he stayed in office. It subsequently became apparent that one reason for his stepping down was to assist the government.

In recent years there has been an increasing trend for ministers to resign over personal errors of judgement or for reasons relating to issues of personal morality. Examples of resignations under these circumstances include the following:
1. Ron Davis' (Secretary of State for Wales) resignation in 1999 following an apparent indiscretion on Clapham Common;
2. Peter Mandelson (Secretary of State for Trade and Industry) and Geoffrey Robinson (the Paymaster General) both resigned over an undisclosed loan by Mr Robinson to Mr Mandelson for a house purchase;
3. Beverley Hughes (Immigration Minister) resigned in 2004 following inadvertently misleading public statements regarding the lack of scrutiny of self-employed immigration applicants entering the UK;
4. David Blunkett (Home Secretary) resigned in 2004 over misleading statements relating to a visa application by his ex-lover's nanny;
5. David Laws (briefly Chief Secretary to the Treasury in 2010) resigned following the disclosure of an inappropriate parliamentary expenses claim.
6. Liam Fox (the Defence Secretary) resigned in October 2011 following allegations that he had breached the Ministerial Code in giving a personal friend significant access to the Ministry of Defence and allowing him to accompany him on overseas ministerial visits.
7. Chris Huhne (the Energy and Climate Change Secretary) resigned in February 2012 due to an ongoing criminal investigation into swapping speeding points with his ex-wife (for which he was subsequently imprisoned).
8. Maria Miller, the then Culture Secretary, resigned from Cabinet in April 2014 after reports of over-claiming of parliamentary expenses.

Political Accountability in Play: The Budd Inquiry and David Blunkett's Resignation' [2005] PL 229

The Freedom of Information Act 2000 created new rights of access to information and was intended to generate greater openness in government. It superseded the Code of Practice on Access to Government Information, which came into effect in 1994 (with a revised edition in 1997). It commits departments and public and governmental bodies to publish information, but does not confer an entitlement. The Freedom of Information Act covers a range of public authorities, including government departments, the National Assembly for Wales, the Northern Ireland Assembly, local government and National Health Service. An Information Commissioner, to whom the public has direct access, regulates the provisions in the Act. The Act permits people to apply for access to documents, or copies of documents, as well as the information itself. A very valuable insight into the role of the Information Commissioner and the statutory framework regulating the application of the Act can be gained from reading the leading case of R (Evans) v Attorney General [2015] UKSC 21 relating to the request for disclosure of Prince Charles’s letters to ministers.

It is widely acknowledged that the concentration of all types of state power into the same hands can lead to iniquitous and/or inefficient government. In the famous words of the British historian, Lord Acton: 'Power tends to corrupt; absolute power corrupts absolutely.' Constitutional theorists argue that for a constitution to be 'efficient' and 'well arranged' the three branches (or organs) of state (the judiciary, executive and legislature) should be separated into different bodies or persons.

The idea was given more modern expression by Montesquieu during the 18th century. He believed that liberty would be best protected if there was a separation of powers into judicial, executive and legislative branches:

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ... again, there is no liberty if the power of judging is not separated from the legislative and the executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles, or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs and that of trying crimes or individual causes. Any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.' Montesquieu, De L’Esprit des Lois,(1689-1755)

The Founding Fathers of the US adopted a relatively strict separation of powers in which no office holder could legally be allowed to wield power belonging to another branch of the state.

In the UK there has traditionally been a considerable degree of overlap in terms of personnel and functions between the different branches of the state. Academic writers including Bagehot (The English Constitution 1867) identify this as being a result of the British constitution being a parliamentary, as opposed to a presidential, system. In a parliamentary system, the legislature selects the political part of the executive branch, which then is then ultimately dependent on the legislature for its position and power. For this reason, parliamentary systems are often seen to create a fusion of powers rather than a separation of powers.

In the UK, many commentators have warned of the potential dangers of such fusion, particularly given the strong degree of control exercised by the political parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'first past the post' electoral system. Lord Hailsham, Lord Chancellor from 1970–74 and from 1979–87, commenting on the relationship between these two bodies of state, coined the phrase 'elective dictatorship' in describing executive dominance over the legislature.

The key power of the legislature is legislative, which means the power to make statutory law. The primary law-making entity is Parliament, but in the UK the executive also has extensive law-making powers through the operation of delegated legislation. It can also take action and establish policy through the use of prerogative powers

Similarly, the courts play a role in law-making through the development of the common law and through the interpretation of statute. However, there is a fine dividing line between developing the law and making it, and sometimes the courts are accused of excessive ‘judicial activism’.

In Shaw v DPP [1962] AC 220, Shaw wanted to publish a 'ladies directory' giving details of prostitutes and their services. He was advised that publication of the directory would not amount to a criminal offence. Nevertheless, a conviction of 'conspiracy to corrupt public morals' was upheld (even though there was no such statutory offence and such a conviction was unprecedented). The House of Lords held that courts have: 'residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state'.

Judicial influence on the development of law can be a strong one, therefore. However, it is very important to note that Parliament ultimately has the ability to override the effect of a judicial decision by passing legislation to nullify it. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the court had upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation.

In addition to the judicial function performed by judges in the courts, certain aspects of the judicial role can, and have been, exercised by members of the executive, most notably in the past by the Home Secretary. This power derived from both statutory and prerogative sources. For example, following the murder of James Bulger by two ten-year-old boys, it was within the Home Secretary's power to set the tariff for their imprisonment. It was found in R v Home Secretary, ex parte Venables and Thompson [1998] AC 407 that he had acted unlawfully in exercising these powers. (See section 14.5 for further details on this case.) The judicial power of the Home Secretary has been reduced in recent years, however, following some high profile human rights cases and consequent statutory amendments. See, for example, R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 and the Criminal Justice Act 2003.

For centuries the highest court in the UK was the Appellate Committee of the House of Lords. This arrangement was often quoted as a clear example of a further overlap in the separation of powers model in the UK. The judicial function exercised by this part of Parliament ended in 2009, however, following the Constitutional Reform Act 2005, when the UK Supreme Court was established as an institution, totally separate from Parliament.

public law courts in the UK do have the right to quash the actions of the executive through the key mechanism of judicial review.

As a result of these many overlaps, several academic writers have been sceptical over whether the concept of separation of powers properly exists in the UK. See for example Professor SA de Smith, who commented that: 'no writer of repute would claim that it [separation of powers] is a central feature of the modern British Constitution'.

Barendt, 1995 Public Law 615 commented:

'The truth is that there is no effective separation of powers between the legislature and executive in the United Kingdom in the system of "checks and balances". The advent of the mass political parties has destroyed the semblance of such a system which existed a century ago. Except on rare occasions when there is significant party split, the government effectively controls the legislature ... There is, however, an effective separation of the judicial power from the other branches.'

Although it could be correct to say that the UK Constitution does not conform to any strict theoretical model, there is some adherence to the theory on a more practical level. As Barendt notes above, there is 'an effective separation of the judicial power from the other branches'. Furthermore, a number of statutes and constitutional conventions exist to ensure a degree of separation and, most importantly, to enable institutions to exercise checks on the others.

There are many examples of statutes and conventions that operate to ensure a degree of separation within the UK's constitutional arrangements. Consider, for example, the House of Commons Disqualification Act 1975, which operates to prevent judges and senior civil servants from becoming MPs.

The Human Rights Act 1998 (HRA 1998) also arguably reinforces the doctrine of separation of powers. If a court considers that legislation is in conflict with a right protected by the European Convention of Human Rights, the court has the power to make a 'declaration of incompatibility' under the HRA 1998, s 4. Significantly, the court does not have a power to strike down or ignore the statute, however; it is for the relevant minister to arrange for the necessary amendment of the offending provision with parliamentary support.

Without an independent judiciary, there can be no real separation of power because the executive cannot be held properly to account in the legal sense.

According to the Constitutional Reform Act 2005, s 3, the executive has an obligation to uphold judicial independence. Ministers are specifically barred from trying to influence judicial decisions through any special access to judges.

Some other important safeguards, the products of legislation and convention, are outlined below.
(a) Tenure. The Act of Settlement 1700 originally provided for judicial security of tenure. This is now re-enacted in the Senior Courts Act 1981, s 11 (formerly the Supreme Court Act 1981) for judges in the Crown Court, High Court and Court of Appeal, and in the Constitutional Reform Act 2005, s 33 for a judge of the (new) Supreme Court. Both of these Acts state that judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament.
(b) Immunity. An independent judiciary means that there is a requirement that judges cannot be sued for their actions in court, even if they act mistakenly, providing that they act within their jurisdiction. This privilege extends to the law of defamation. Judges are required to reach their decisions freely and independently. Complete immunity is given to judges in the higher courts, although in the lower courts the position is not quite so clear. For instance, in Sirros v Moore [1975] QB 118 it was held that, even if a judge acts maliciously, so long as he reasonably believes that he is acting within his jurisdiction, he cannot be sued for his actions in court.
(c) Open courts. Trials should be conducted in public, as it is important that justice is seen to be done. Cases should only be heard 'in camera' if a hearing in an open court would defeat the ends of justice or if it is necessary to protect the vulnerable. Article 6 of the European Convention on Human Rights also plays an important role in this regard. Note, however, the more recent introduction of the 'closed material procedure' in relation to some cases involving national security. (See section 5.3.1).
(d) Political independence. Full-time judges are disqualified from sitting in the House of Commons and, by convention, must be apolitical. Members of the Cabinet should not criticise judges, although this is a convention that is not always observed. Courts also lack jurisdiction to inquire into proceedings in Parliament. This is a very long-established and important principle of ‘parliamentary privilege’ is enshrined in Article 9 of the Bill of Rights 1689.
(e) Judicial appointments. The appointments of judges up to and including the High Court used to be made by the Lord Chancellor, a member of the executive and the legislature (and formerly also one of the Law Lords). This system was criticised by many as directly contradictory to the doctrine of separation of powers. The Constitutional Reform Act 2005, s 6 provided for the setting-up of an independent Judicial Appointments Commission, intended to improve the quality of the administration of justice and enhance public confidence in the judiciary. The work of the Commission ensures greater conformity with the doctrine of separation of powers. Independence of the Commission is ensured by 15 commissioners comprising a mix of professional, lay and judicial members. According to the Constitutional Reform Act 2005, s 63, judicial appointments will solely be based on merit and good character.
(f) Head of the Judiciary. As a result of the Constitutional Reform Act 2005, s 7, the Head of the Judiciary is no longer the Lord Chancellor, but instead the Lord Chief Justice. This removes the office from direct political control

In recent decades, the judiciary has played an increasing role in exercising a check on the executive through the use of judicial review. The growth of judicial review has been seen as an expression of the importance of the separation of powers in modern Britain. See Council of Civil Service Unions v Minister for the Civil Service (the 'GCHQ' case) [1985] AC 374.

The courts have often explained their readiness to strike down executive action in terms of upholding the democratic will of Parliament. In R v Secretary of State for Home Department, ex parte Fire Brigades Union, [1995] 2 All ER 244 the House of Lords ruled that the Home Secretary's use of prerogative power to introduce a criminal injuries compensation scheme at variance with an unimplemented statutory provision was inconsistent with the will of Parliament.

Lord Mustill stated:

‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.'

Similarly, the courts have often employed the doctrine of the separation of powers as part of their justification in deciding cases. In M v Home Office [1993] 3 WLR 433, when the Home Secretary ignored a court order because he thought it was wrongly made, the court made it clear that this was in breach of the doctrine of separation of powers.

In the case of Malone v Metropolitan Police Commissioner, [1979] CH 344 the court refused to support the plaintiff's argument that he had a right to privacy. In contrast to the cases discussed earlier (see section 4.3.1.1), where the courts were criticised for judicial law-making in areas of significant public importance, the court in Malone can be seen to have been more deferential and conscious of not encroaching on to what it saw as the legislature's territory.

In more general separation of powers terms, the self-image of the higher judiciary as a determinedly independent force within the constitution is a very significant feature of modern constitutional law. The degree to which this role is pursued will vary to an extent between judges but it is fair to say that the modern judiciary sees itself as playing a vital role in maintaining an effective overall constitutional balance.

The Lord Chancellor is the government minister with responsibility for the administration of justice including the administration of the court system. Historically, this office carried a wide portfolio of responsibilities. However, under the Constitutional Reform Act 2005, the role was reorganised to remove overlaps with the legislative and judicial functions. In particular, the Lord Chancellor ceased to be the Speaker or President of the House of Lords in May 2006. In April 2006 he also ceased to be the head of the Judiciary in England and Wales and surrendered his powers of judicial appointment to the Judicial Appointments Commission.

The Attorney General sits in Cabinet as the chief legal adviser to the government. He also has a role in deciding whether to bring a prosecution in individual cases. The nature of this office has given rise to concerns about the possible impact on the doctrine of separation of powers, as a conflict of interest could arise between the inherent political allegiance of any holder of the office and the wider constitutional obligation to give independent, impartial legal advice to the government. A good example of this was the controversy surrounding the legal advice given to the Blair government by the then Attorney General, Lord Goldsmith, in the lead-up to the war in Iraq.

Lord Irvine, speaking at a lecture to the High Court of Hong Kong in 1998, summarised the UK's approach to the separation of powers:

'In the United Kingdom, the approach which is taken to the separation of powers - in common with so many aspects of constitutionalism – is essentially pragmatic. Within the British constitutional order, the divisions of functions between the different branches of government is not set in tablets of stone. The separation of powers itself is not viewed as a single paradigm of institutional arrangements which can be achieved once and for all time. Rather, it is perceived as an ideal which must be pursued in a manner appropriate to contemporary circumstances. As political, legal and social conditions evolve over time so too conceptions change of what the respective institutions of government should do, and of the powers which each should exercise over the others. It is this flexible and pragmatic approach - which is the fruit of the unwritten constitution – that is central to the typology of constitutional development in the UK.

The rule of law is the principle that those exercising a governmental function should not be able to exercise power arbitrarily, but rather be subject to legal controls.

'… powers exercised by politicians must have a legitimate foundation ... based on authority conferred by law.' Professor De Smith 1959

'… a government of laws not of men. ' John Adams, Constitution of the Commonwealth of Massachusetts (1780)

'It is better for the law to rule than one of the citizens ... so even the guardians of the laws are obeying the laws.' Aristotle (translated by Warrington) c. 350BC

'It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ... ' Justice Blackburn (later first Lord of Appeal in Ordinary) 1866

'It is essential, if a man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ' The Universal Declaration of Human Rights 1948

In R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714, the court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabia. This provoked an explicit threat made by Saudi representatives to the Prime Minister's Chief of Staff, leading to a suspension of the investigation. The Divisional Court concluded that the decision to halt the investigation represented asurrender to an external threat and therefore ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The House of Lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.

In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act 2005, s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case.

Lord Bingham, in his book The Rule of Law (Allen Lane 2010), attempted to define the concept: 'The core of the existing principle is that 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 publically administered in the courts.'

The formal view of the rule of law is that, for there to be government under the law, laws must adhere to certain procedural requirements. This view says nothing about the morality of the law, merely that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions and position within society in any given circumstances. This extends to an expectation of how the citizen will be treated by the state and other private citizens. In order to achieve this quality of certainty, law must be prospective and clear, and it should be adjudicated upon y an independent judiciary with access to the courts available to all citizens. Joseph Raz is a key advocate of the formalist conception of the rule of law.

Leon Fuller's analysis differs from that of Raz. Fuller argues that law can and must possess some form of 'internal morality' or it is not worthy of the title 'legal system'. Thus he is prepared to concede that a regime which merely commanded authority could be described as a governmental system, but would not qualify as a 'legal' system. A legal system must in his view serve the interests of the population and not simply those of the regime itself.

In an Introduction to the Study of the Law of the Constitution (1885), Dicey stated that the rule of law has three meanings.
1. The supremacy of regular law over arbitrary power. 'We mean in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established before the ordinary courts of the land … It means … the absolute supremacy or predominance of regular law as opposed to the influence or arbitrary power, and excludes the existence or arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else.'
2. Equality before the law. 'We mean … when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.'
3. No higher law other than the rights of individuals as determined through the courts. '… the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.'

Lord Bingham ascribes to a number of the points made by Dicey over a century earlier, but develops the theory in a more modern and substantive direction. He describes eight sub-rules within his conception of the rule of law. 1. The law should be accessible, clear and predictable.
2. Legal issues should ordinarily be resolved through legal processes and not through exercise of (administrative) discretion.
3. The law should apply equally to all.
4. The law should afford adequate protection for human rights.
5. There should be access to justice in the courts without inordinate delay or expense.
6. Public officials, including ministers, should exercise the powers they have been granted
in good faith and within the limits of those powers.
7. Legal and adjudicative processes should be fair.
8. The state should comply with its obligations under international law.

One of the key aspects of the rule of law is the supremacy of regular law over arbitrary power. This is based on the idea that those exercising power should have some legal justification for their actions and exercise their powers within the terms provided for by Parliament. Entick v Carrington (1765) 19 St Tr 1029 clearly illustrates this point.

In Kelly v Faulkner [1973] NI 31, the Northern Ireland Court of Appeal refused to accept that British soldiers dealing with the emergency should be exempt from the normal legal requirements for the execution of a valid arrest just because of the security situation.

When government is answerable under the law, the courts are empowered to make the authoritative determination of what the law is. In M v Home Office [1993] 3 WLR 433, the House of Lords had to determine whether the Crown (in this case the Home Secretary) had to obey a court order. Cases such as these, where the courts have carefully and deliberately examined government action and upheld the rule of law, clearly illustrate its aims and importance.

In The Sunday Times v United Kingdom, (1979) 2 EHRR 245 the European Court of Human Rights discussed certain qualities that must be fulfilled for law to meet this criteria. In the context of human rights law and the European Convention, this concept is often referred to as being 'prescribed by law'.

Retrospective laws are also seen as incompatible with the rule of law. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the House of Lords upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation.

Another example of retrospective law-making came in the form of the War Crimes Act 1991, which empowers the UK courts to punish war crimes committed by persons who were not subject to British jurisdiction at the time when the crimes were committed. Note, however, that while retrospective criminal legislation is prohibited by the ECHR, art 7, there is an exception: 'the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations'. The War Crimes Act 1991 comes within the scope of this exception.

More recently, the Jobseekers (Back to Work Schemes) Act 2013 has also overridden the effect of the Court of Appeal's decision in R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-work 'training scheme'

Looked at from a different perspective, it could be said that legal clarity is sometimes compromised through the operation of common law development. See the case of Shaw v DPP

If the rule of law is equated with adherence to the requirements of formal legality, as demonstrated in Entick v Carrington, the existence of a statutory authority will be deemed to be sufficient to justify governmental action. However, there are instances where the exercise of such statutory power has been seen to be incompatible with the rule of law if the nature of the power conferred is insufficiently limited. See, for instance, Lord Denning’s approach in the case of Inland Revenue Commissioners (Appellants) v Rossminster Ltd (Respondents) [1980] AC 952. This represents an example of an alternative approach adopted by some judges, namely to use the rule of law as a principle of interpretation. If this approach is followed, the rule of law takes on a more substantive quality. See also R v Somerset County Council, ex parte Fewings.

During emergencies, particularly during wartime, the courts have often been more reluctant to interfere with the exercise of discretionary power. This is whether the power arises from statute or is pursuant to the exercise of the royal prerogative (see Chapter 7).

In Liversidge v Anderson [1942] AC 206, the Home Secretary was empowered under Reg.18B of the Defence Regulations (issued under the Emergency Powers (Defence) Act 1939) to imprison any person if he had 'reasonable cause to believe' such a person had hostile intentions. Liversidge was detained without trial under this regulation and sued the Home Secretary for false imprisonment, claiming that 'reasonable cause to believe' imputed an objective factual standard.

The majority of the House of Lords disagreed, and accepted the Home Secretary's interpretation of the regulation. They held that there was no objective requirement, enabling him to take this action, as long as his belief was an honest one. Thus the courts could not inquire into the grounds for the detention, unless there was evidence to suggest that the Home Secretary had not acted in good faith.

In the minority was Lord Atkin. Famously accusing the majority of being 'more executive minded than the executive', he concluded that, had Parliament wished to give the Home Secretary unlimited discretion, it would not have qualified the grant of power with the word 'reasonable'. In his view, the word purported the existence of facts or a state of facts; therefore the Home Secretary needed to show some evidence for his justification.

While much criticised at the time, Lord Atkin's approach is much closer to current judicial orthodoxy. Even so, the courts have generally remained more cautious in interfering with the grant of wide discretionary powers in times of war or when national security is in issue. This is often described as an example of 'judicial deference'.

Some further examples of judicial deference include the following.

R v Secretary of State for Home Affairs, ex parte Hosenball [1977] 3 All ER 452 The Court of Appeal was unwilling to order reasons to be given to justify the deportation of an American journalist by the Home Secretary. Hosenball claimed that the decision to deport him had breached the rules of natural justice because the Home Secretary had not disclosed the grounds on which he considered him to be a security risk.

R v Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319 In 1991, during the Gulf War, the Court of Appeal accepted the Home Secretary's determination that Cheblak's presence in the UK was not 'conducive to the public good', and refused to order Cheblak's release from detention pending his deportation. The Home Secretary was not required to specify the precise nature of the threat allegedly posed by Cheblak.

However, more recent cases suggest that the courts, in examining the choices made by the executive and legislature in response to emergency situations, will not necessarily continue to be so deferential.

The degree to which judicial culture has moved away from the more deferential past is illustrated by the tension that has arisen between the government and the judiciary (and to some extent within the judiciary) over the courts' scrutiny of issues of a more political and diplomatic nature. A further illuminating example of this can be seen in Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs, [2012] UKSC 48 in which the Supreme Court upheld the issue of a writ of habeas corpus on the UK government, requiring it to seek to procure the release of the claimant who had been held by US forces in the Bagram Airbase since 2004.

Cases such as these and particularly that of Binyam Mohamed (above) have inspired further highly controversial changes in court procedure in the form of the Justice and Security Act 2013. This Act makes some very significant changes in civil cases involving sensitive national security issues by extending the use of “Closed Material Procedure” which may allow the government to prevent evidence being relied upon from being disclosed to the opponent party. This arguably has very serious implications for key rule of law principles relating to the control of discretionary power, the importance of equality of arms before the law and the need for open and transparent justice.

a further highly contentious recent issue has been brought about by the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012. This is partly designed to introduce significant reductions in the scope of civil legal aid, including that for judicial review. It has been described by opponents, including the President of the Supreme Court, Lord Neuberger (in a highly critical televised BBC interview in March 2013), as a means of reducing access to justice and effectively strengthening the power of the state in relation to the individual.

Equality before the Law This idea can be split into two aspects: that everyone is subject to the same law, and that everyone is subject to the ordinary courts of the land.

For Dicey, an essential component of the rule of law, contained in the third limb of his theory, was that the rights and duties of the citizen were primarily to be found in the common law as a result of cases brought before the courts.

The HRA 1998 incorporates the ECHR into the domestic law of the United Kingdom, but falls short of the complete protection envisaged by the Convention. The Act does not, for instance, enable a court to enforce an individual's rights by overturning or striking down a statute. As a last resort, the courts can only make a 'declaration of incompatibility', leaving the amendment of the offending law to the relevant minister and Parliament. However, the HRA 1998 does provide a significant restraint on public bodies from using their power to interfere unjustifiably with individual rights, and therefore provides positive, substantive protection for such rights.

Significantly in recent years, one of the most notable trends in constitutional law has been a resurgence in interest and emphasis by the higher judiciary on what has come to be called ‘common law constitutionalism’. This is the idea the common law is developing as an organic body of law which serves to protect individual rights and to uphold key principles, such as fairness, access to justice and accountability of government, effectively in tandem with the more formal rights associated with the European Convention.

n January 1959, the International Commission of Jurists issued the Declaration of Delhi. This declared that the purpose of all law should be respect for the 'supreme value of human personality', and that the observance should entail certain prerequisites such as the existence of a representative government, respect for basic types of human freedoms, and an independent judiciary. Such a robustly substantive view of the rule of law appears to go much further than weaker, procedural conceptions of the rule of law. The Universal Declaration of Human Rights and the European Convention of Human Rights also demonstrate respect for the rule of law.

The rule of law certainly operates as a check on executive power by requiring that the executive acts only on the basis of lawful authority, which is ultimately granted by Parliament.

The principle of the rule of law can also be used by the judiciary to justify the implication of restrictions on the scope of legislation, created by Parliament, in the interests of protecting individual liberties. This can be achieved through judicial interpretation of statutory provisions, incorporating common law (and now ECHR) notions of justice and fairness necessary to uphold democratic principles.

R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 Simms was a convicted murderer who claimed to be innocent. In seeking and receiving help from a journalist, he was interviewed on several occasions. A blanket ban was imposed by the Home Secretary on journalists using information gained during such interviews with prisoners. He claimed authority to do this under the Prison Rules. However, the court found the blanket ban to be unlawful.

In discussing the relationship between parliamentary sovereignty and the rule of law, Lord Hoffmann considered the principle of 'legality'. While acknowledging that ultimately the principle of parliamentary sovereignty meant that Parliament could enact legislation contrary to fundamental human rights, he nonetheless noted:

'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 in 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.'

Lord Hope said in R (Jackson): 'The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.'

In M v Home Office [1993] 3 WLR 433, Lord Templeman stated:

'... Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.'

The doctrine of the separation of powers is closely connected with the rule of law: the judiciary, by performing its constitutional function of 'enforcing' the law in the cases that come before it, keeps the executive within the bounds of its lawful authority and so upholds the law as made and sanctioned by Parliament. One of the key ways in which the judiciary performs this rule of law/separation of powers function is through the process of judicial review, which we will look at in detail in the final part of the course.

Lastly, it is worth referring back in this context to the highly significant recent case of R (Evans) v Attorney General [2015] UKSC 21. In a very clear defence of the courts’ role in upholding the rule of law and in maintaining the judiciary’s position in the separation of powers balance, Lord Neuberger stated:

‘When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.’

Professor Dicey's conception of the theory has been the most influential. He explained the 'continuing theory of Sovereignty of Parliament' in the following way:

'The principle of Parliamentary Sovereignty means nothing more or less than this, namely Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.'

According to Dicey, sovereignty means that there are no substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what Parliament could do.

The theory suggests that Parliament can pass legislation, however absurd, unjust or impractical. Sir Leslie Stephen's often-quoted example (from 1882) was that Parliament could pass a law ordering the death of all blue-eyed babies.

Parliament can certainly pass laws to alter or regulate its own terms of office, as it did with the Septennial Act 1715 and the Fixed-term Parliaments Act 2011. It can also limit the power of its own constituent bodies as it did in the Parliament Acts of 1911 and 1949.

Parliament can also create legislation that changes aspects of the constitution. In Ex parte Canon Selwyn (1872) 36 JP 54, the validity of the Irish Church Act 1869 was challenged by a priest on the grounds that it disestablished his church in Ireland contrary to the Act of Union with Ireland (1800). This argument was rejected by the court, Cockburn CJ stating that:

'There is no judicial body in this country by which the validity of an Act of Parliament could be questioned. An Act of Legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce judgment as to the validity of an Act of Parliament.'

In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'.

It is also possible for Parliament to create statutes that conflict with public international law. In Cheney v Conn [1968] 1 All ER 779, a taxpayer challenged the validity of the Finance Act 1964. He argued that it conflicted with the Geneva Convention, a treaty to which the UK was a party, because part of the tax collected would go to the manufacture of nuclear weapons.

Ungoed-Thomas J said: 'What the statute itself enacts cannot be unlawful, because … it is the highest form of law known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a Parliamentary enactment… is illegal.'

The orthodox theory also states that Parliament can legislate for territory beyond the jurisdiction of the UK, even if this produces a conflict with international law.

Mortensen v Peters (1906) 14 SLT 227 : The captain of a Norwegian trawler was convicted of fishing in the Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. The court held that it was bound to apply the Act, even though it restricted fishing beyond the three-mile territorial limit recognised by international law.

Parliament can pass laws that are retrospective as well as prospective. In 1965 Parliament passed the War Damage Act 1965, which had the effect of retrospectively nullifying the House of Lords' decision in the case of Burmah Oil Co v Lord Advocate

Dicey believed that each new Parliament must enjoy the same unlimited power as any before it. Therefore, Parliament cannot be bound by its predecessors and may amend or repeal any previous enactment. The rationale for this rule is that, if Parliament were to pass a law limiting its power as an institution, a future parliament would not be supreme.

There are two forms of repeal.

(a) Express repeal. This is where legislation is passed that expressly states an intention that an earlier Act should be repealed. For example, the Interception of Communications Act 1985 was expressly replaced by the Regulation of Investigatory Powers Act 2000. Express repeal often happens when there is a drive to consolidate and simplify legislation. For example the Sex Discrimination Act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995 were all expressly repealed and replaced by the Equality Act 2010.

(b) Implied repeal. In the absence of express repeal, if a new Act is partially or wholly inconsistent with a previous Act, the previous Act is repealed to the extent of the inconsistency. This is known as the doctrine of implied repeal and again follows from the principle that Parliament should not be able to bind its successors.

Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133 and Ellen St Estates v Minister of Health [1934] 1 KB 590. Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be assessed in compliance with the Housing Act 1925. The plaintiffs refuted this, however. They argued that the assessment should be calculated according to the more generous terms of the Acquisition of Land Act 1919, which had expressly stipulated that its provisions were to prevail over any others passed or to be passed. The court held that it was bound to apply the terms of the later 1925 Act. If the plaintiff's claim had succeeded, the 1919 Act would effectively have become entrenched.

In Ellen St Estates v Minister of Health [1934] 1 KB 590, Maugham LJ stated:

'The legislature cannot, according to our constitution, bind itself as to the force of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.'

In McCormick v Lord Advocate [1953] SC 396, a Scottish Nationalist raised an objection to the designation of the new monarch as Queen Elizabeth the Second. He argued that, as a matter of fact, the first Queen Elizabeth had been Queen of England but not of Scotland. The application was dismissed on other grounds but Lord Cooper stated, obiter:

'The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law ... Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty in seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.'

Arguments have been raised to the effect that the Acts of Union between England and Scotland and Ireland were intended to represent a higher form of law and so should be seen as substantively entrenched. The theory behind the argument is that the Acts of Union were not created by the UK Parliament but by the original English, Scottish and Irish Parliaments. Hence, the Acts created a new (UK) Parliament that was not sovereign, but limited by its founding constitutional documents. In the words of Professor J Mitchell, the new Parliament was 'born unfree'.

Gibson v Lord Advocate [1975] SLT 134 The Acts of Union between England and Scotland contained some fundamental provisions relating to the preservation of certain aspects of Scottish law and institutions, for example that alterations in private law must be 'for the evident utility of the subjects in Scotland' (article XVIII). This case involved a challenge to a European Community common fisheries policy measure because it gave access to Scottish waters. The complainant argued that this was a change in private law which was not for the 'evident utility' of Scots, as required by the Acts of Union. The court held that access to fisheries was not 'private law' and therefore the measure could not be challenged. However, Lord Keith did not rule out an argument of the kind put forward in situation where it might be more relevant on the facts. The arguments in both the above cases were quite inconclusive. Dicey certainly viewed the Acts of Union as having no higher legal status than any other Act and it is true to say that the UK Parliament has altered many of the principles contained in both the Scottish and Irish Acts of Union. Furthermore, the judicial remarks in McCormick and Gibson were obiter. No Scottish court has actually declared an Act of Parliament to be invalid on the basis that it is inconsistent with the Act of Union.

The British Empire was gradually dismantled by grants of independence to the colonies. Several, such as Canada and Australia, thereafter became known as 'Dominions' but were effectively independent nations. The Dominions' constitutions were established by UK Acts of Parliament. A British constitutional convention developed that no new UK Act affecting a Dominion would be passed without the request and consent of that Dominion (in recognition of their independent status). This was confirmed in the Statute of Westminster 1931, which required there to be a recital of the request and consent from the Dominion.

The significance of this was that the Statute of Westminster effectively imposed substantive and procedural restrictions on the Westminster Parliament's ability to legislate for former colonies. This raises the question as to how far the 1931 Parliament bound its successors to adhere to the requirements of the Statute of Westminster, s 4 when passing subsequent legislation.

In British Coal Corporation v The King [1935] AC 500, a case concerning the ability of Parliament to legislate for Canada in breach of the Statute of Westminster, s 4, Lord Sankey said:

'It is doubtless true that the power of the Imperial [i.e. Westminster] Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of the Statute ... But that is theory and has no relation to realities.'

In Blackburn v Attorney General [1971] 1 WLR, a case concerning UK membership of the European Community, the issue of the limits on Parliamentary sovereignty was discussed again. Lord Denning highlighted the distinction between legal and political theory.

'We have all been brought up to believe that, in legal theory, one parliament cannot bind another and that no act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931 ... Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the Dominions....Can anyone imagine that parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics.'

For this reason, some later judges have doubted their views. Manuel v Attorney General [1983] Ch 77 concerned an amendment to the Constitution of Canada by an Act of Parliament. Megarry VC clearly re-stated the orthodox view of sovereignty.

'I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of parliament. In my view, it is a fundamental of the English constitution that parliament is supreme. As a matter of law the courts of England recognise parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of parliament the courts of a territory may be released from their legal duty to obey parliament, but that does not touch on the acceptance by the English courts of all that parliament does. Nor must validity in law be confused with practical enforceability.'

In summary, we can see that the grants of independence do impose very clear political limits on Parliament, but do not limit the theoretical legal power of Westminster to pass law governing these states, although many may think that this distinction is very much an academic argument. A very similar situation is arguably developing with regard to the devolved nations of the UK, notably Scotland

The orthodox Diceyan view of sovereignty is that, while a Parliament could pass a statute that required a special procedure for its amendment or repeal, this requirement would not be binding on a successor Parliament. Furthermore, the courts would not entertain a challenge to the subsequent incompatible statute because of the 'enrolled bill rule' laid down in Pickin v British Railways Board [1974] AC 765

some academics have challenged the argument that Parliament cannot bind its successors on a number of fronts. The most obvious relate to the Human Rights Act 1998 and the European Communities Act 1972

In Attorney-General for New South Wales v Trethowan, [1932] AC 526 (PC) the validity of the Constitution (Legislative Council) Amendment Act 1929 was tested. This Act inserted a new s 7A into the Constitution Act 1902. This provided that no bill to for abolishthe upper house in New South Wales (NSW) could be presented unless it had been supported by a majority of voters in a referendum. Similarly, s 7A itself was also entrenched; in order to repeal this section the same procedure had to be followed, an arrangement known as 'double entrenchment’. In 1930, following a change in the NSW state government, it was decided to repeal the Constitution Act 1902, s 7A and abolish the upper house. Before putting the bill forward for royal assent, the matter went to the Privy Council for their advice as to whether the proposed amendment was legal. The Privy Council held that the requirement to have a referendum was binding, and that parliamentary sovereignty had no relevance in determining the present case. The Privy Council seemed to indicate that the matter turned on a statutory construction of the Colonial Laws Validity Act 1865, s 5. The New South Wales Parliament was a legislative body having subordinate powers and hence the issue was not one relating to sovereignty of the type enjoyed by Westminster.

This issue came to the fore once more following the enactment of the European Union Act 2011, which introduced a 'referendum lock', a statutory framework requiring a national referendum to be held before further amendments can be made to the founding Treaties of the European Union. This followed on from the coalition government's pledge to obtain popular approval for any further transfer of sovereignty or powers to EU institutions. The referendum lock provision in the Act seemed to extend this pledge beyond the last Parliament by creating a manner and form requirement, which arguably binds future governments.

The Diceyan view of parliamentary sovereignty rests on the notion that Acts of Parliament are the highest form of law, so neither the manner in which legislation is passed, nor the substance of the law, should be reviewable by the courts.

Edinburgh and Dalkeith Railway v Wauchope (1842) 8 ER 279 (HL) In this case Wauchope claimed to have been unlawfully denied his property rights as the result of a statute that had been passed. He claimed that he had not been given proper notice of the impending legislation (in accordance with existing parliamentary standing orders, which were designed to protect affected landowners prior to an enactment). However, the court rejected his argument that the procedural irregularity could render the Act void. Lord Campbell stated:

'… all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses …'

One of the most heated debates in recent years occurred during the passing of the Hunting Act 2004. This Act made the hunting of wild animals, and especially foxes, by dogs unlawful. At issue in R (on application of Jackson) v Attorney General [2005] UKHL 56 was the validity of the Hunting Act itself. The Act was passed without the consent of the House of Lords, using the accelerated procedure created by the Parliament Acts of 1911 and 1949.

The Scotland Act 1998 gave the new Scottish Parliament the right to legislate in relation to a number of issues. However, the Scotland Act 1998, s 28(7) specifically provides that there be no reduction in the legal sovereignty of Westminster to legislate for Scotland if it is considered desirable to do so.

In the case of AXA General Insurance Ltd v Lord Advocate, [2011] UKSC 46 the Supreme Court had an opportunity to review the legal relationship between Westminster and the Scottish Parliament when considering whether an Act of the Scottish Parliament was susceptible to judicial review. The resolution of the issue turned upon the constitutional status of the Scottish Parliament and whether it should be regarded as a delegated legislature (akin to a local authority), or as a political equal (albeit without sovereign status) with powers shared with Westminster. In the circumstances, Lords Hope and Reed considered that review of Acts of the Scottish Parliament on the normal grounds of judicial review was not appropriate, as they clearly regarded Acts of the Scottish Parliament as a species of primary, rather than delegated legislation. Nevertheless, both agreed that Acts of the Scottish Parliament of a kind that violated the rule of law would not be upheld by the courts. The justification for this was Lord Hope's previously stated view in the Jackson case that 'the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based'.

Although arguably of great constitutional significance, the Human Rights Act 1998 (HRA 1998) does not mark any formal reduction in the legal sovereignty of Parliament. This is for two main reasons. First, it does not empower the courts to strike down primary legislation, but only to make a non-binding declaration that an Act is incompatible with the European Convention on Human Rights (the Convention) under the HRA 1998, s 4. This provision was specifically designed to maintain the sovereignty of Parliament. Second, the Human Rights Act is itself only an ordinary Act which is capable of express repeal by ordinary legislation.

There have been a number of declarations of incompatibility since the Human Rights Act 1998 came into force. Although s 4(6) of the Act does not require Parliament to change an incompatible statute, the political consequences of a declaration are very significant and effectively oblige the relevant minister to arrange for the amendment of the offending part of the statute. The obligation is seen to be akin to that of a convention.

The HRA 1998, s 3(1) states:

'… so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.'

R v A (Complainant's Sexual History) [2002] 1 AC 45, a case concerning the admissibility of evidence in a rape trial, the law lords arguably seemed prepared to transform the meaning of the relevant legislation through use of the very strong interpretive power given to them by the HRA 1998, s 3(1). Lord Steyn, giving the main judgment, stated:

'After all it is realistic to proceed on the basis that the legislature would not if alerted to the problem have wished to deny the right to an accused to put forward a full and complete defence … It is therefore possible under section 3 to read section 41 … as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible.'

Despite formally agreeing with this creative interpretation of the Youth Justice and Criminal Evidence Act 1999, s 41, Lord Hope felt that the general comments made by Lord Steyn on the scope of the HRA 1998, s 3 were constitutionally questionable. He accepted that the rule of construction laid down by the HRA 1998, s 3 was 'quite unlike any previous rule of statutory interpretation'. However, he felt that the rule was one 'of interpretation only' and did not give the judiciary the right to act as legislators, a role that should be reserved solely for Parliament.

Some of the political criticisms of the Human Rights Act have centred on the way in which the courts have applied sections 3 and 4 of the Act, in a manner which critics have viewed as an example of judicial activism. It is always important to realise, however, that these are powers which have not been self-created but have been given by Parliament (in 1998).

One very notable feature of the Human Rights Act has been the effect it has had on the doctrine of implied repeal.

Lord Denning, in Bulmer v Bollinger [1974] 2 All ER 1226, described the effect of the ECA 1972 as follows:

'When we come to matters with a European element the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back ... Parliament has decreed that the Treaty is henceforward to be part of our Law. It is equal in force to any Statute.'

The main provisions of the European Communities Act for sovereignty purposes are as follows.

The ECA 1972, s 2(1) gives direct effect to Community law within the UK. It provides that: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.'

The ECA 1972, s 2(4) provides that: '… any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].'

According to the ECA 1972, s 3(1), questions of law relating to the Community shall be determined according to the principles and decisions laid down by the European Court of Justice (ECJ).

Since the UK became a member of the EC/EU, there have been a number of interpretations as to the effect of European Law on parliamentary sovereignty.

courts began to develop a presumption that Parliament, in passing legislation, must have intended to legislate consistently with Community law. Therefore, when interpreting statutes, the courts would try to give effect to the purpose of EU provisions.

In Macarthy's Ltd v Smith [1981] QB 180, Lord Denning MR considered that he was obliged to construe the statute purposively because of the ECA 1972, s 2(4). He concluded that this subsection had effectively abolished the doctrine of implied repeal in so far as Community law was concerned.