constiutional

stockdale v hansard

• can’t make a law with house of commons only, HL matters too

Edinburgh v Wauchope case

courts cannot question the interanl procedure of parliament.

jeffery goldsworthy in public law 126 “is parliamentary sovrienty alive?”

• defends the idea that although parliament sovreingty is challanged, it remains supreme

k. ewing

argues parliamentary sovreignty is the most democratic constitutional principle because it allpws for the gov to fullfill its manifesto promise to reflect public interest

thorburn v sunderland city council

• Laws LJ said that Ordinary statutes may be impliedly repealed. Constitutional statutes may not - express reapeled

• Important to note that the very concept of a constitutional statute remains debateable. It is an invention of the Courts and specifically of Laws LJ in Thoburn.

  · Whilst they have received positive subsequent judicial recognition by the Courts (e.g. HS2 and Miller 1) they have also been described as being merely of ‘academic’ interest (Allistair 2023).

• Laws LJ described constitutional statue as: the legal relationship between citizen and State

- ex: Magna Carta 1297 (25 Edw 1)

- the Bill of Rights 1689 (1 Will & Mary sess 2 c 2)

- the Union with Scotland Act 1706 (6 Anne c 11)

- the Reform Acts which distributed and enlarged the franchise (Representation of the People Acts 1832

- the Human Rights Act 1998,

- the Scotland Act 1998

- the Government of Wales Act 1998.

thomas paine

each parliament should have its own power and not be ruled by “those in the grave” so that it can match the current society

sailsbury convention

• house of lords can’t block / veto bills and if a year goes by with no response it’ll usually be considered as accepted

lord hope in jackson

• “parliament is not longer, if it ever was, supreme”

• rule of law > parliamentary sovreingty in extreme cases

miller 2019

• executive cannot use perogative power to frustrate parliaments constiutional role

• judges were able to justly interefer (separation of powers) to uphold rule of law

dilion and others v Secretary of State for Northern Ireland

• courts “disapploed parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 because it caused friction with the Windsor framework

alison young in public law review 187 “‘Hunting Sovereignty:”

• parliament is not longer absolute but it is evoloving

• This view says parliamentary sovereignty should not be treated as absolute or rigid, but should work in a practical way that reflects broader constitutional principles. (rule of law)

sewel convention

although in miller 2017 it was confirmed that the sewel convention is only politcally and not legally binding, the convention is a promise that parliament promises "not normally" to legislate on devolved policy areas - shows some retraint to westminister parliament

dicey on parliamentary sovreignty

parliament has the power to make or unmake any law, it cannot bind furture parliament, and no body or person is above parliament.

dicey on rule of law

equality before the law, nobody is above the law, no punishement without breach of law.

Paul Craig in House of Lords Constitution sixth report:

• dicey’s view on rule of law was

1. “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law “ = ambiguous

2. concerns equality: 'every man, whatever be his rank or condition, is subject to the ordinary law = concerned with access to courts not the nature of the rules

3. unwritten constitution = also ambiguous

• Dicey’s view= ambiguous and uncertainty

• Modern view= diverse:

(a) The Rule of Law and Lawful Authority

(b) The Rule of Law and Guiding Conduct

(c) The Rule of Law, Justice and Accountable Governmen

Thick vs thin on rule of law

Formal / Thin: see Lon Fuller’s “inner morality of law”: generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct.

Fuller argued that adherence to these qualities would supply an inner morality for the law and prevent governments from abusing their power.

Joseph Raz:

THIN

• says it concerns claity and perspective no about morality. about just and predictable

Substantive/thick: assessments based on the content as well as the form of law. It is a more modern conception of the rule of law.

• Rule of law is not only a legal necessity, but as a protector of fundamental rights.

• Goes to the question of whether there are substantive limits to a decision-maker’s powers

Ronald Dworkin:

THICK

• rule of law does / should concern morality → Lord Bingham agrees. concerns human rights

• UNISON showed this approach more

lord reed in R (anufrinjeva)

right to know

lord reed UNISON

"at the heart of the concept of the Rule of Law is the idea that society is governed by law"

how powerful are devolved legislatures?

Axa General Insurance v lord advocate

• Scottish parliamentary statutes are treated as primary legislation

• he TheRule of Law remains the ultimate "controlling principle" over all legislative bodies in the UK

• can be reviewed by courts via rule of law

Imperial Tobacco Ltd v lord advocate

• courts should take a broad interpretation of devolved powers.

→ meaning Westminster will try to give devolved powers as much room as possible to make laws

what is some academic commentary on the concept of devolution

vernon boydaner

• transfer of power from ministers to a subordinate body

micheal o’neil in parliamentary affairs

• flexible solution for the UK

westminister sovreignty and devolution

continuity bill reference 2018

• parts of scottish bill invalid because it interfered with westministers power to make law regarding UK’s withdrawel from EU (Brexit)

ellito and kilford

• devolved powers are restrained due to parliamentary sovereignty

Robinson v Secretary of State for Northern Ireland

It established that constitutional statutes require a broad and flexible interpretation to accommodate the unique historical and political background of the territory

What is the significance of the reference in Robinson to the Northern Ireland Act 1998 as a ‘constitution’? Review House of Lords - Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland)

• Peter Robinson challenged whether the MLAs elected to serve as FM and dFM (David Trimble and Mark Durkan) in November 2001 could validly assume those offices as their election had taken place after the expiry of a six-week time limit provided for by section 16(8) of the Northern Ireland Act 1998.

• Upholding the determination of Kerr J in the High Court, the Court of Appeal in NI interpreted the relevant provisions of the 1998 Act in a way to preserve the power-sharing function in the Belfast Agreement.

• The HL judicial bench agreed with this purposive approach on a 3-2 majority decision.

• HL ultimately upheld the adoption of a purposive approach to interpretation whereby, ‘generously and purposively’ (as Lord Bingham puts it at para 11) and thus the Act itself should be interpreted through the lens of the Agreement and the purpose to bring about a cessation of hostilities and a lasting peace-sharing agreement.

• BUT the minority thought otherwise. Lord Hutton and Lord Hobhouse argued that the NIA is simply a body created by a Westminster statute. Where the statute gives the body power to perform a certain act within a specified period (i.e. elect a new FM and DFM) t

outside of that period. For Lord Hobhouse, a duty had been attached to the secretary of state to set new elections.

• The reference to the NIA as a ‘constitution’ is valid due to its nature and what it oversees i.e. the defining of the exercise of power by different government bodies as well as defining the relationship between the organised power (state) and individuals. → The Northern Ireland Act 1998 can be seen as constitutional because it structures governmental power and regulates the relationship between the state and individuals.

re buicks application

• where there is consititutional collaps, civil servants cannot make major policy decisions

lord mustill in fire bridgades union

defenitive statement: parliament can unchallangebly make law which the executive administers and the courtd interpret and apply

fire bridgades union

home secretary tried to use perogative powers to create compensation schem that contricdicted with statue parliament already passed

held: executive cannot overide will of parliament

lord haisham on seperation of powers

• said its an executive dictatorship because the majority giv in commons can assert its own will on the people with minimal checks

Lon Fuller, "The Morality of Law" (1964)

Laws must be general, public, prospective, coherent, clear, stable, and practicable.

Henry VIII clause

provision in an Act of Parliament that empowers the executive branch (ministers) to amend, repeal, primary legislation using secondary legislation.

AAA v Secretary of State for Home Department

Facts:

• UK government introduced the Rwanda policy: asylum seekers arriving in the UK could be removed to Rwanda, where their claims would be processed.

• Claimants argued this risked refoulement (being sent back to unsafe countries), breaching Article 3 ECHR (prohibition of torture/inhuman treatment).

Issue:

• Whether removal to Rwanda created a real risk of refoulement, making the policy unlawful under Article 3.

Held (Supreme Court):

• The policy was unlawful.

Takeaway:

• Courts decide human rights compliance (not the executive)

• The case reinforces that decisions affecting fundamental rights cannot be left to executive discretion alone.

Parliamentary Legislative Supremacy and devolution

Devolution Acts expressly acknowledge Parliament’s continuing supremacy (e.g., Scotland Act 1998, s28(7)).

R v Horncastle 

• Showed that UK courts can resist Strasbourg where appropriate.

• While the judges recognized the complexity of the issue, the majority held that it was not for the courts to determine such a profound change in social policy. Instead, they decided that the matter should be left to Parliament to legislate

R (Elan-Cane) v Secretary of State for the Home Department

• Facts: Challenge for non-gendered passport ('X' marker).

• Issue: Whether the refusal infringed Article 8 ECHR.

• Decision: No violation; courts must not go further than Strasbourg.

• Importance: Reaffirmed UK courts’ cautious approach post-HRA.

What is a constitutional convention? What role do they play in the UK Constitution? What Convention was discussed in the Miller case and how did the majority decide the issue?

• Constitutional conventions are constitutional rules which are political in nature. court’s can’t make decisions based on them

• they exist because politics need flexibiblity

Miller 1

→ Sewell Convention “not normally” act on devolved powers unless consent is given

→ The question for the Court was whether consent of the Northern Ireland Assembly would be required before the relevant primary legislation for triggering Article 50 was enacted.

→ The answer was a unanimous no!

What are the arguments for and against a written constitution?

Nick Barber, ‘Against a Written Constitution’ [2008] Public Law 11-18:

• The Constitution is not perfect, but it works

• Do note that we have had the Brexit and Covid crises since Barber’s piece!

Jeff King, ‘The Democratic Case for a Written Constitution’ (2019) 72 Current Legal Problems 1-36:

• Suggests remodelling the constitution while preserving flexibility

Entrenched Constitution:

• Important constitutional changes should require more procedure

• Every 20 years a national constitution review should take place

What did the Jackson case say about Parliamentary sovereignty?

• The Parliament Act 1911 created a procedure saying parliament acts (like the one from 1949) can be delagated legislation

• delegated legislation = laws that can be reviewed by courts and struck down if ultra vires because they are made by ministers with parliament’s authority.

• lord bingham says no to this approach, and that Parliament's acts are primary legislation and therefore not reviewable

What is the royal prerogative?

• Prerogative powers are those which used to be exercised by the monarch, but as the monarchy became less political and less powerful as the parliamentary system developed, these powers are now exercised by government. It is important to note that prerogative powers are those which do not require parliamentary authority.

•    Many areas of the royal prerogative can now be controlled by the Courts through the use of judicial review. We see this in both Miller judgments which you will discuss in the next question. Much earlier, in Congreve v Home Office [1976] QB 629, 657-8 we saw the Court of Appeal reject an attempt by the government to increase the TV licence fee through use of the royal prerogative. Roskill LJ noted that if the government wanted to increase fees, they should legislate to do so.

What was the role of the royal prerogative in the Miller and Miller; Cherry cases? How was this dealt with by the Courts?

Miller 1

–> Can the gov use royal prerogative to trigger A50?

→ NO! because this would interfere with domestic rights that only parliament can act on. the gov would need primary legislation

Miller 2

–> prorogation is a prerogative power exercised by the Crown on the advice of the Privy Council. The government advised the Queen to prorogue parliament so to as to avoid parliamentary input in the run-up to the UK’s exit from the EU.

• The principal questions were (1) was this justiciable and (2) if so, was the advice to the Queen lawful.

• UKSC: This prorogation prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks in the run-up to the United Kingdom’s exit from the EU. There was no reasonable justification for this course of action. It undermined both parliamentary sovereignty and accountability. The decision was unlawful.

the constitutional conventions of colective responsibility vs ministeral responsibility

collective responsibility:

• collective cabinet - where ministers agree to policy publicly, even if they disagree, and if they cannot do this, they should resign

• However, there have been times when ministers campaigned (Brexit)

ministerial responsibility:

• Ministerial accountability requires ministers to provide Parliament with full and accurate information relating to the conduct of governmental business within their departments and portfolios.

What does the UNISON ruling of the Supreme Court tell us about the relationship between Parliamentary sovereignty and the rule of law?

• The Supreme Court confirmed that the right of access to the courts is a fundamental part of the rule of law.

• Lord Reed explained that Parliament makes laws, but courts ensure those laws are properly applied and enforced, including by checking that the executive acts lawfully.

• This means people must have access to the courts, laws may become meaningless and unenforceable because courts are where lawyers practice.

• While Parliamentary sovereignty still means Parliament can make any law, UNISON shows that courts will interpret legislation in line with constitutional principles such as the rule of law, ensuring that access to justice is protected so that both democracy and the legal system continue to function effectively.

Is Dicey’s view of the rule of law adequate in the 21st centuruary?

Dicey thought:

• thin approach

• We don’t need a written Bill of Rights (HRA 1998)

• Judges + common law are enough to protect people

Lord Bingham:

• thick approach

• Laws themselves must also be fair and protect rights

so:

• original dicey view → thicker view. Dicey cared about procedure, modern law cares about fairness of the law itself

• HRA 1998 impact → ights are now protected by statute

  • Section 3 (interpretation)

  • Section 4 (declaration of incompatibility)

  Argument: This shows Dicey’s reliance on common law is outdated

• Access to Justice and the Courts

  Subtopic: Courts as guardians of the rule of law

  Case: R (UNISON) v Lord Chancellor

• JR

is Dicey still relevant?

• YES:

  • Still core principles (equality + legality)

• NO:

  • Too narrow, ignores rights + modern governance

How does the separation of powers operate in the UK Constitution?

--> partial approach to the separation of powers the UK. they corssover

--> The executive is still largely derived from our legislature - not a pure separation. PM comes from parliament

The separation of powers operates as a balancing factor between the institutions of government. In particular, it encourages:

1) checks and balances between the different institutions. 2) it is efficient in that it apportions particular roles to those with the greatest expertise to conduct them (e.g. judges and interpreting the law, HoL and scrutiny of legislation, HoC and democratic representation).

What is devolution intended to achieve?

• Remember that the UK is the union of different national groups within one country which was shaped by the military and economic significance of England.

• Devolution had long been on the radar of the United Kingdom authorities. Many have been against it. Dicey dismissed the desire for recognising cultural diversity, stating that it would undermine parliamentary sovereignty, deprive English institutions of their strength, weaken executive powers and make it harder for the country to repel invasions.

• Calls for it incrementally grew throughout the 20th Century, with NI receiving devolved powers first in June 1921 – March 1972.

How has devolution affected the constitutional settlement in the UK?

• Parliamentary Sovereignty is still protetced

→ devolved powers come from Westminster

→ strict and careful wording

→ “reserved matters”

Courts help manage a balance by allowing some flexibility but interfering if ultra vires (AXA).

What is meant when devolution is described as ‘asymmetrical’? How has this manifested?

asymmetrical = power granted in unequal measures

Scotland:

• granted extensive law-making power

• health, education, crime, justice → everything except what’s reserved for parliament (national matters)

• strongest devolved power

• reserved power model

Wales:

• Government of Wales Act 1998

• was weak but became more independent over time. almost on scotlands level but weaker

• started by only being allowed what Westminster granted, but after 2017, moved to a more reserved power model

NI:

• special power-sharing system

• First to have a devolution, but soon taken back after the Good Friday Agreement (Belfast Agreement) 1998

1. expected matters

→ controlled by Westminster. national importance.

2. Reserved matters

→ reserved by Westminster..for now, until political stability is proven

3. transferred matters

→ controlled by the NI government (local matters)

What role do the courts play in the devolution context?

• Devolved legislatures aren’t sovereign like Westminster Parliament, so courts can review them

• AXA General Insurance Ltd v Lord Advocate

→ courts will not review devolved legislatures unless they performed ultra vires. (shows the flexibility)

should devolution system be reformed?

NO! local and works for each nation, flexible (courts in AXA), poltical tension may arise if yes

Yes? unclear? complicated? unequal power distribution?

What issues or challenges arise from the Consociationalism model of the devolved institutions?

Consociationalism = a way of running a country where different groups share power so no one group dominates.

Consociationalism can lead to ineffective governments which are fragile in operation.

· Whilst the model enables the channelling division into a political process, the divisions do not disappear - think about the repeated collapses in power-sharing.

· Is community designation actually reflective of Northern Ireland in 2026?

What is unique about the status of the Ministerial Code in Northern Ireland?

The Northern Ireland Ministerial Code:

• statue (Northern Ireland Act 1998 S.28A)

• must legally comply or else be unlawful

UK ministerial code:

• not a statute-based law but rather based on convention

• no legal consequences, only political ones

Human Rights: the Human Rights Act 1998 and its constitutional significance

Why was the Human Rights Act 1998 created?

👉 Main idea: “Bring rights home”

• People can enforce rights in UK courts (no need to go to European Court of Human Rights)

• Gives faster and more effective remedies

• Reduces cases against the UK internationally

What powers do courts have? 🔹 Section 3 (MOST IMPORTANT)

👉 Courts must interpret laws to fit human rights

• Can reinterpret legislation to make it compatible

• BUT cannot go against the core intention (“grain”) of Parliament

✅ Best remedy for claimants (works immediately)

Section 4 (WEAKER BUT POLITICAL)

👉 Courts say: “This law breaks human rights”

• Called a Declaration of Incompatibility

• Does NOT invalidate the law

• Parliament decides whether to fix it

⚠ Slow, but politically powerful

What does “more academic than practical” mean?

When judges like Lord Stephens say something is “academic”, they mean:

👉 It sounds important in theory (textbooks, lectures)
👉 But doesn’t make much difference in real cases

Big Constitutional Impact of the Human Rights Act 1998

The Human Rights Act 1998 balances Parliamentary sovereignty and rights protection. Under A.V. Dicey’s traditional view, courts could not question Acts of Parliament. However, the HRA gives courts more influence.

Under section 3, courts can interpret laws to make them compatible with human rights. Under section 4, courts can declare a law incompatible, but cannot strike it down. Parliament still decides whether to change the law.

👉 This creates a balance: courts protect rights, but Parliament remains supreme

What role do Select Committees play?

scrutanize current gov and represent the people

What is the purpose of the Recall of MPs Act 2015?

The purpose of this Act was to increase public confidence in Parliament, by making it easier to remove MPs who misbehave, commit offences, or bring the house into disrepute.

Dicey’s acknlowdgement on legal vs poltical power

yes parliament has full legal power, it’s MP’s are voted in and out so it’s poticaly voted by voters as well - making it democratic

Do sections 3, 4 and 19 of the Human Rights Act 1998 unsettle the doctrine of Parliamentary sovereignty?

s3- main purpose still there

s4- still valid

s19- doesn’t need to be compatible with hra but just needs to be known (upholding rule of law)

• literilally an act of parliament

limitations to sovreignty?

• hra 1998 (ex)

→ but not really since theortically parliament can repeal it anytime

• mostly poltical limits not legal limits

should the current devolution arrangement be reformed?

yes:

• asymetrical:

• fragil gov: Consociationalism model intended to channel divisions into political processes has frequently led to "ineffective" and "fragile" governments,

• Governance Gaps: When devolved institutions collapse, particularly in Northern Ireland, senior civil servants are often left to run the government with limited legitimacy,

What role has the official opposition had within the Assembly to date? Has it been effective or not? What examples are there of the official opposition at work? NI addition.

• offical opposition = those not part of gov but ask questions from the outside

• section 28A and the Statutory Ministerial Code

• The Mechanism of "Reserved Matters": The NIA categorizes certain powers as "reserved matters" (such as policing and criminal law). These are issues that Westminster continues to exercise until Northern Ireland's political parties demonstrate an ability to "share them,

importance:

1. channelling Division into Politics: The NIA utilizes a consociationalism model designed to channel historical divisions into a stable political process.

2. Upholding the Belfast Agreement: These provisions are the legal expression of the Belfast Agreement’s purpose: to bring about a "cessation of hostilities" and a "lasting peace-sharing agreement".

3. Preventing Unilateral Action: By requiring collective agreement on significant or cross-cutting issues, the Act prevents any single political group from making major decisions without the consent of representatives from the other community.

4. Maintaining Legitimacy: The "generous and purposive" interpretation of these sharing requirements by the courts (as seen in the Robinson case) ensures that the devolved institutions can continue to function as a "constitution" for Northern Ireland even during political crises

What is a ‘constitutional statute’, and is the ascription of the term to an Act of Parliament of any real significance?

• A constitutional statute is a judicial classification of certain Acts of Parliament that are deemed to have a higher status than "ordinary" statutes due to their fundamental nature in the UK's uncodified constitution.

• As defined by Laws LJ in Thoburn v Sunderland City Council, a statute is "constitutional" if it meets either of the following criteria:

→ It conditions the legal relationship between citizen and State in a general, overarching manner

does the UK constitution need reform?

Institute for Government (2023) “review of the UK constitution”:

• UK constitution needs reform

• “Recent years have seen governments willing to test or even break constitutional norms. The UK system allows significant constitutional changes to be made at speed, driven by narrow political party interests, without establishing broad consensus or a sense of wider public legitimacy.”

• reform ideas: public engagement, new parliament committee, • Creating a new category of constitutional acts to formally recognize the importance of key pieces of legislation that underpin our political system

r v adams

R v Adams demonstrates that constitutionalism in the UK requires executive power to remain strictly subordinate to Parliament

Where statute specifically requires Ministerial personal action

pickin v british railways

Courts cannot question the validity of an Act of Parliament once it has been properly enacted.

did jackson case challange sovreity

showed some challange in obiter..

lord hope, young

but ultimatily, no.

• lord bindgam said its out bedrock. which is true like cant have rule of law with ps because ps makes the laws which rule of law makes accessiable. - golsdworthy

also showed that parliaments acts can’t be quashed by courts

• 1949 parliament act and hunting act 2004 was argued to be delagted which means can be reviewed for unltra vires

• held no. this was a new way of making primary legislation

• confirmed again that courts are under parliamentry sovreinty and can’t say they ultra vires or wtv

is diceys blah on rule of law still adequate?

• in the broader sense it technically still is but it shows some challanges

still is:

“no body or person is above parliament”

• times when executive has tried to overstep their role and attack parliaments sovreingty the courts stepped in

• miller 1 and miller 2, goldsworthy

sighns of challanges:

“parliament cannot bind itself”

• means if something in the current parliament does not align from the last parliamentary session, should be repealed - impliedly. (thomas paine)

• however thorbun v sunderland said that in cases of constitutional statues (hra or big stuff that shows relationship between the state and individaul) has to be expreselly repelaed. hmmm

• evolving - young

“can make or unmake any law”

• theoritcially this is true but we’ve seen that sometimes rule of law will get in the way

• lord hope emphasised this in jackson obiter

• also lord chancellor was stopped in UNISON

so overall, parliament is still sovreign and diceys pricniples are still at the heart of the UK consitituion. however they are being challanges and showing some sighns of evolvement.

is rule of law thin (dicey approach) or thick rn

Thin- muller says it must be clear and predictable. Joseph Raz says morality should not concern the law and would give judges too much power. dicey had narrow approach

thick- craig in "House of Lords Constitution Sixth Report”Craig

→ says dicey’s approach is ambiguous

• Ronald Dworkin says it should concern morality

• lord bingham says rule of law should oversee human rights and be a source of that laws need to no just common law but statutes.

rn its more thick

• human rights (which Dicey was against bill of Rights)the Bill

• UNISON

• R (afujinja)

should uk adopt a codified constitution?

yes:

king “a democratic case for a written consititution”

• entached model

• would be more clear, uphold rule of law.

• works well in canada

no:

• barber “against a written constituion says it’d be too much work and would be a waste of time to stive for protection, it’ll never be perfect. also it’ll be hard to change. example us

• no flexiability, become a product of its time

no:

• having a written will go against ps

• ps is bedrock of consiotution “lord bingham”

• would go against diecys notion of parliament cannot bind itself

devolution and westiminister tension along with consocialism

• devolution gets transferred powers vernon boyamor) from parliament. unlike fedral in us, this means they get their power from westminister which it can give or take away and remains supreme. altough sewel convention says usually parliament won’t interefer with devolved, miller 2017 made note that this was only a poltical promise. also scotland act 1998 s28 recognises parliamentary supremecy. if anything they be restrained (elliot v kilford)

• devolved are not as powerfull. although the courts will be broad interpratation (imperial) and give room (robinson), they can look over it if it goes beyond their power- ultra vires. example, continuity reference 2018, scotland bill didn’t align / interfered with parliament so it was disapplied. dillion may challange thi because it disapplied parts of the troubles act for windsor framework but remeber that the point of the devolution in the uk is to unite nations in the context of their poltical and historical and economic background so devolution unites uk.