Public law

Parliament Act 1911

Parliament Act 1949

Bill of Rights 1689

Limited the kings power, could not legislate without parliament consent

R v Home Secretary 1997

Seperation of powers, Gov minister should not be doing the job of the courts. Sentences were being changed retrospectively. Cannot be punished for the same offence, sentencing not gov’s jurisdiction

R v The Prime Minister Cherry and others v AG for Scotland

Temp suspension of parliament, advice to queen given unlawfully

MacCormick v. Lord Advocate 1953

obiter.:
“The principle of the unlimited sovereignty of Parliament is a
distinctively English principle which has no counterpart in Scottish
constitutional law …

The Jennings (constitutional lawyer and theorist) test

‘We have to ask ourselves three questions:  first, what are the precedents; secondly did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?  A single precedent with a good reason may be enough to establish the rule.  A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded themselves as bound by it”.

 

This leads him to say there is no great distinction between conventions and laws (e.g., Royal Assent). Dicey takes issue with this – conventions are different because they are clearly non-legal. Just because they look like a law does not mean that it is a law. Ginger beer in a whisky bottle is still GB.

SA 1998 SCH 5

Reserved matters

Part I – General Reservations
• Part II – Specific Reservations
• Part III – General Provisions, including interpretative guidance to Parts
I and II.

General Reservations
• The Constitution
• Political Parties
• Foreign Affairs
• Public Service
• Defence
• Treason

Specific Reservations
• Financial and Economic Matters
• Home Affairs
• Trade and Industry
• Energy
• Transport
• Social Security
• Regulation of the Professions
• Employment
• Health and Medicines
• Media and Culture
• Miscellaneous

• By ‘Section 30 Order’ –> Order in Council to amend Schedule 4 or 5, and any other statute or statutory instrument

SA 1998 S63A

Declares the SP and Scottish gov permanent institutions

Fixed-term Parliaments Act 2011

introduced fixed 5 year parliamentary terms, later repealed + think problems (e.g., Brexit gridlock). Dissolution and calling of parliament act 2022 (repealed)

Recall of MPs Act 2015

• Provides for MPs to be recalled by public petition from office under circumstances ofproven misconduct such as criminal convictions or suspensions from the House ofCommons.

The House of Lords Appointments Commission, 2000

Non-statutory, independent, advisory, non-departmental public body,
established by the Prime Minister in May 2000.
• Seven members, including the Chair. Three members were appointed to
represent the main political parties. The other three members and the Chair
are non-political and independent of government.
• Two main functions: (a) recommend individuals for appointment as non-
party-political life peers; (b) to vet nominations for life peers, including those
nominated by the UK political parties, to ensure the highest standards of
propriety

Constitutional Reform Act 2005

Removed the judicial functions of the House of Lords from Parliament and set
up a new, independent Supreme Court (from October 2009).
• It also changed the role of the Lord Chancellor, ending his role as a judge and
as Speaker of the House of Lords.
• First Lord Speaker (Baroness Hayman) elected in 2006.
• In 2009, the 12 Lords of Appeal in Ordinary (the ‘Law Lords’) were disqualified
from sitting or voting in the House of Lords, although when they retired from
the Supreme Court they were allowed to return to the House of Lords as full
members.
• Justices of the Supreme Court do not have seats in the House of Lords.

 

Constitutional Reform and Governance Act 2010

• Introduced a ‘voluntary scheme’ of retirement for those who wanted to do so (previously it was not possible to retire from the House, or even be expelled for wrongdoing).

House of Lords Reform Act 2014

Enabled peers to resign membership.• Enabled removal for non-attendance or upon criminal conviction for seriousoffences.• House of Lords (Hereditary Peers) Bill 2024-26• Labour manifesto commitment at 2024 General Election to remove remaininghereditary peers from House of Lords.• Government Bill is currently at Report Stage in the House of Lords, having passedall stages in the House of Commons

AXA General Insurance Co v. Lord Advocate 2012

“The Scottish Parliament takes its place under our constitutional
arrangements as a self-standing democratically elected legislature. Its
democratic mandate to make laws for the people of Scotland is beyond
question. Acts that the Scottish Parliament enacts which are within its
legislative competence enjoy, in that respect, the highest legal authoritySovereignty remains with the UK Parliament

The Sewel Convention

WM will not normally legislate. SA 1998, s28(8)

Legislative Competence of SP

SA 1998, s.28: Acts of the Scottish Parliament
(1) Subject to section 29, the Parliament may make laws, to be known
as Acts of the Scottish Parliament.
(5) The validity of an Act of the Scottish Parliament is not affected by
any invalidity in the proceedings of the Parliament leading to its
enactment.

7) This section does not affect the power of the Parliament of the
United Kingdom to make laws for Scotland.
(8) But it is recognised that the Parliament of the United Kingdom will
not normally legislate with regard to devolved matters without the
consent of the Scottish Parliament → putting the Sewel convention on
a statutory footing → R (on the application of Miller and another) v
Secretary of State for Exiting the European Union [2017] UKSC 5,
otherwise known as Miller No.1.

SA 1998, s.29: Legislative competence

(1) An Act of the Scottish Parliament is not law so far as any provision
of the Act is outside the legislative competence of the Parliament.

Power to amend or repeal Acts of the UK Parliament (whether before
or after 1 July 1999) provided the provision doing this is within the
legislative competence of the Scottish Parliament

SA 1998, s.29(2)(d) → “incompatible with the Convention rights”
• Examples:
• Axa General Insurance Co Ltd 2012 SC (UKSC) 122

ECHR restriction on Legislative Competence

Schedule 4 SA 1998

Cannot modify law on reserved matters. Purpose, prevent Scottish parliament from legislating to amend SA 1998 to alter structure of devolution

Internal Market Act 2020

Does not affect legislative competence (Brexit) of the Scottish parliament, but controls application of devolved legislation

Section 30 order or SA 2016

order in council to amend SCH 4 or 5, any any other statute or staturoy instrument

Salisbury Convention

The House of Lords should not reject a government Bill
that implements a manifesto pledge and for which the government therefore has
an electoral mandate’.
Legal Restrictions: Parliament Acts 1911 and 1949

Scotland Act 1998, s.36: the stages of Bills

SA 1998, s.28(5) specifically provides that “[t]he validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament
leading to its enactment.”

the Presiding Officer, as required by SA 1998,
s.31(2), declaring whether or not, in his or her view, the Bill’s provisions
would be within the legislative competence of the Parliament

Political Parties and Elections Act 2009

·      gave commission new supervisory powers – strengthened the electoral commissions role under the 2000 Act – commission important for integrity of election and referendums

·      Electoral commission reports to the speakers committee, can set its own strategic priorities

Scotland Act 1998 as amended by the Scottish Elections (Reform) Act 2020 section 1.  – changes to every 5 years

Dates of general elections to the Scottish Parliament are set out in statute. The 1998 Act S. 2 (1), as amended, provides that a general election for membership of the Parliament is to be held is the first Thursday in May every five years.

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]

Parliament passed a law that gave gov the power to intro new criminal (victim) injury compensation scheme. Gov cannot use prerogative power when parliament has made a law on this area. Gov is limited by parliament

The Miller II / Cherry case: R (On the Application of Miller) v Prime Minister; Cherry and Others v Advocate General [2019]

HL Select Committee on the Constitution

Follows a recommendation on the reform the HL (CM 4534)  - to “act as a constitutional long stop”, ensuring that changes are not made to the constitution without full and open debate and an awareness of the consequences

Henry VIII clauses

is a clause in a bill that gives the gov through secondary legislation to amend primary legislation

Fast-tracking – a problem, bills that are passed to quickly, they don’t go through the proper process, proper timing between those stages. Too busy not an excuse for fast-tracking

Placeholder – does not include the ACTUAL TEXT in the clause (e.g., this is a criminal offence that we will eventually draft)

EU Withdrawal ACT (HL CONST COMMITEE)

The House of Lords Constitution Committee issued three reports, the first of which was anticipatory, published in March 2017, before even notification of intention to withdraw under Article 50 of the Treaty on European Union had been issued.

Parliamentary Privilege, no new one may be introduced, but…

e.g. Parliamentary
Commissioner Act 1967, s. 10(5))

Bill of Rights A9

the freedome of speech and debates or proceedings in Parlyament ought not to be
impeached or questioned in any court or place out of Parlyament.” (anything said in parliament is not impeached outside of parliament)

Stockdale v Hansard (1839)

Stockdale tried to sue Hansard for something defamatory in a Commons report, H argued was a privilege. Courts said that once parliament published those reports they could be sued for defamation. So parliament passed the parliamentary papers act 1840 which guaranteed absolute immunity for both houses. So led to an expansion of the privileges of parliament

Exclusive Cognisance

The right of Parliament to determine its own rules and procedures for
its work → includes certain penal powers (members and non-members) over ‘contempt of Parliament.’
• Blackstone (1765):
• “whatever matter arises concerning either house of parliament, ought to be
examined, discussed, and adjudged in that house to which it relates, and not elsewhere.”

Bradlaugh v Gosset (1884) → elected MP, an atheist, refused to take oath
required by statute → action against Serjeant-at-Arms, dismissed by court:
“what is said and done within the walls of Parliament cannot be inquired
into in a court of law” → even where the matter is regulated by statute
(see below).
• British Railways Board v Pickin [1974] → courts will not question proceedings even if it is alleged Parliament was misled by fraud or otherwise in legislating

Parliamentary Papers Act 1840

overturned Stockdale v Hansard by
giving:

a)        absolute privilege for Hansard (official report) and other parliamentary
papers (e.g. select committee reports); and
b) qualified privilege for extracts published elsewhere ‘bona fide and without malice.’

Key principle: privilege extends to the application of statute law to Parliament

the Owen Paterson Affair

Breached parliamentary lobbying rules, setting up meetings with ministers for his companies. He was not allowed to lobby. Investigated and accused of breaches of the lobbying rules

The Committee on Standards in Public Life and the Seven Principles of Public Life

Establishment of a House of Commons Select Committee on Privileges and
Standards (now Privileges and Standards are overseen by two separate
Commons Committees)
2. Establishment of a new office of Parliamentary Commissioner for
Standards.
3. A new Code of Conduct for MPs, policed by the Parliamentary
Commissioner for Standards.
4. Articulation of the Seven Principles of Public Life, namely, selflessness,
integrity, objectivity, accountability, openness, honesty, and leadership
(also known as the Nolan Principles after the chair of the committee

Its formal role is to:
• Advise the Prime Minister on ethical issues relating to standards in public life
• Conduct broad inquiries into standards of conduct
• Recommend changes to existing arrangements
• Promote the Seven Principles of Public Life
• The Committee does not investigate individual allegations of misconduct (which are handled by other institutions, considered below). A joint endeavour between PM and MPs. Its main role is an oversight role, and a liaison role, to ensure that Parliament and the Gov are working to the same standards

Standards of the House of Commons

The Code of Conduct
• The Code of the Conduct governing MPs’ personal behaviour and financial conduct is agreed by the House, on the recommendation of the Committee on Standards.
• The Code is reviewed, usually, once every Parliament.
• The review of the Code is undertaken by the Parliamentary Commissioner
for Standards, who makes recommendations to the Committee on Standards.
• The Committee takes account of those recommendations before reporting to the House.
• The House may make changes to the Committee’s recommendations before adopting changes to the Code.

The Code sets out MPs’ public duties, as follows:
• To owe allegiance to the Crown (constitution)
• To uphold the law
• To act in the interests of the nation as a whole and their constituents in particular.
• The Code requires MPs to follow the Seven Principles of Public Life in their personal conduct, and it also requires that: “Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally.”

Parliamentary Standards Act 2009 (as amended by the Constitutional Reform and Governance Act 2010)

It established the Independent Parliamentary Standards Authority (IPSA).
• IPSA is responsible for both determining the salaries and entitlements of
MPs and their payment.
• It also administers the MPs expenses scheme, and has a compliance officer
who investigates payments.
• IPSA works closely with the Parliamentary Commissioner for Standards.

SA 1998 s41 (Defamatory Statements)

(1) For the purposes of the law of defamation—
(a) any statement made in proceedings of the
Parliament, and
(b) the publication under the authority of the Parliament
of any statement,

shall be  absolutely privileged.

Scotland Act 1998: s.42 (Contempt of court)

(1) The strict liability rule shall not apply in relation to any publication—
(a) made in proceedings of the Parliament in relation to a Bill or subordinate legislation,
or
(b) to the extent that it consists of a fair and accurate report of such proceedings made in good faith.
(2) In subsection (1), “the strict liability rule” and “publication” have the same meanings as in the Contempt of Court Act 1981.

Scottish Exclusive Cognisance

Scotland Act 1998: s.1 (The Scottish Parliament)
(4)The validity of any proceedings of the Parliament is not affected by any
vacancy in its membership.

Scotland Act 1998: s.28 (Acts of the Scottish Parliament)
(5)The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

Same thing about anything passed by SP is a valid piece of legislation, e.g., the railway thingy in WM

(S) Register of Interests

Scotland Act 1998, s.39: requires the Parliament to establish a
Register of Members’ Interests, open to inspection by the public.
• Interests of the Members of the Scottish Parliament Act 2006 (ASP)
• All MSPs and the Lord Advocate and the Solicitor General for Scotland
required to register certain financial interests, including benefits in kind
• Must declare any interest before participating in parliamentary proceedings
which relate to that interest

Scottish code of conduct

• ‘Lobbygate Affair’ → Standards Committee concluded no truth in newspaper
report, but led to Lobbying (Scotland) Act 2016

The Courts and Prerogative Powers:  Nature, Scope and Judicial Review

·      AG v. De Keyser’s Royal Hotel Ltd. [1920] AC 508

Post WW1, hotel requisitioned during WW1 for defence purposes, owner claimed compensation. AG argued that gov entitled by prerogative and no compensation due. Court sympathetic, no prerogative here to take property without compensation. Court also said statute supersedes prerogative, defence act 1882, which did allow requisition of property. If they wanted to take the hotel lawfully, should have used that legislation. Statute is dominant, not prerogative powers.

R (Miller) v The Prime Minister and Cherry v Advocate General for Sco

When bojo wanted to prorogue parliament, found he acted unlawfully. Court’s job to protect parliament

Ministerial Code 2010 (WM)

Key point is that ministers views are private and confidential, free to express

 

Attorney General v Jonathan Cape Ltd [1976] QB 752.

Cape’s executors wanted to publish his diary, which contained stuff from cabinet ministers, not for the courts to protect a constitutional convention. But if there had been a legal duty of confidentiality (e.g., NDA), that would have been enforced

Composition of SP

SA 1998, s. 44(1)

-              FM

-              Ministers

-              ““such Ministers as the First Minister may appoint under s. 47”

-              Junior ministers (s49) not members of Scot gov, their job is to assist Scottish ministers

-              Law officers s48 – lord advocate and solicitor General for Scotland

SA 1998, s. 45(1): The First Minister shall be appointed by His
Majesty from among the members of the Parliament and shall hold
office at His Majesty’s pleasure.

Appointment of Scottish Ministers

As with Cabinet Secretaries (Scottish Ministers), junior Scottish Ministers are subject to a statutory process for appointment and removal
– SA 1998, s. 49
• Role is “to assist the Scottish Ministers in the exercise of their functions” – s. 49(1)

Executive functions (statutory and prerogative) within devolved competence were transferred from UK ministers to Scottish
Ministers – s. 53
• “Statutory functions may be conferred on the Scottish Ministers by that name.” – s. 52(1)
– Ministers can be given functions, including powers to make secondary legislation / statutory instruments by enabling Acts
• Executive functions (including secondary legislation) cannot be exercised outside devolved competence – s. 54

Powers of intervention

SA 1998, s.58
– Secretary of State may prevent action being taken if it is incompatible with international obligations: s.58(1)
– Secretary of State may order action to be taken to give effect to “any such obligations”: s.58(2)
– Action includes “making, confirming or approving subordinate legislation” or introducing a Bill in the Scottish parliament
– If the Scottish Government makes or revokes subordinate legislation contains provisions -
s.58(4)(a) which the Secretary of State has reasonable grounds to
believe to be incompatible with any international obligations or the
interests of defence or national security, or
(b) which make modifications of the law as it applies to reserved
matters and which the Secretary of State has reasonable grounds to
believe to have an adverse effect on the operation of the law as it
applies to reserved matters the Secretary of State may by order revoke the legislation

Factortame (Challenge to sovreignty)

SEWEL CONVENTION

In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add—

“(8)But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

 

 

·      R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5

 

According to the majority, judges ‘are neither the parents nor the guardians of political conventions; they are merely observers’: while they can ‘recognise the operation of a political convention in the context of deciding a legal question’, they cannot ‘give legal rulings on its operation or scope, because those matters are determined within the political world’.