Parliament and legislation

Hobbes quote on sovereignty + generals ideas

Hobbes - sovereignty lies with ‘the office of the sovereign representative’ / links to his ideas of the Leviathan

Abbe Sieyes

Sieyes - ‘pouvoir constituant’ and ‘pouvoir constitue’ / people have a constitutional function + Democratic function

Rousseau quote on representatives (in The Social Contrat)

Rousseau - ‘the day you elect representatives is the day you lose your freedom’

Electoral vs good democracy

Electoral = formal democracy, free elections, universal franchise, free speech / good democracy = protection of rights, RofL, SoP, etc.

UK’s democracy + L.S. Amery’s quote from Thoughts on the Constitution

Pluralist democracy (links to FPTP) / majoritarian, 2 party system / weak bicameralism / Amery - ‘government of the people, for the people, with, but not by the people’

Examples that show how ministers = delegates, not trustees

EU withdrawal votes (MPs may have chosen to vote against their constituency) / Assisted Dying Bill (passed 330-275)

Parliamentary government (But in practice)

UK has a parl system - govt must work through parl / govt initiates legislation, but parl reacts and approves / but in practice - govt controls the commons timetable, 90% are govt bills, delegated legislation

J. Bates def of legislation (New Oxford Companion to Law)

Bates - ‘legislation consists of written rules of law which are authoritatively ratified’

Public, private, and hybrid legislation

Public = for country in general / private = targeted at specific groups / hybrid = for the country, but with a focus on groups (e.g. HS2 bill)

Primary vs secondary legislation

Primary - made by parl, Acts / delegated - bypasses Parl, SIs

Struggle over legislative power

Govt has too much power - proposes, develops, and drafts policy (links to fusion of power)

P Norton on parl + govt

Norton - ‘undermine parl and, in the long term, you undermine the authority of govt’

P Norton on the problem with fusion of powers

Norton - ‘policy-influencing legislatures… are essentially dependent on government’

M. Russel, D. Grover and K. Walter on govt power in the Commons + exec dominance

Russel, Grover and Walter - ‘government defeats in the Commons are very rare… creates an impression not only parliamentary weakness, but of executive dominance’

Fire brigades union case 1995 - on statutory duties of enforcing + Lord Keith quote

Outlined how, unless Parl imposed a statutory duty to do so, courts wouldn’t force the exec to impose a law / Lord Keith - doing so would be ‘an unwarrantable intrusion by the court into the political field’

Delegated legislation in depth

Less scrutiny / outnumbers primary legislation (efficient, fleshes out the skeleton (Act), implements Acts)

R. Baldwin on skeleton laws (quote)

Baldwin - ‘much modern legislation is carried out by means of ‘framework’ (so SIs needed)

Types of delegated legislation

SI Act 1946 - split into orders, regulations, and rules / commencements - when an act has to be enforced

House of Lords concerns

Concerns over the use of delegated legislation + skeleton laws / supremacy shouldn’t > democracy

Henry VIII clauses

Enabling provisions in acts allow for delegated legislation (H8 clauses)

Acts containing H8 clauses

Regulatory Reform Act 2001 + Legislative and Regulatory Reform Act 2006

R (National Association of Health Stores) v Sec of state for Health 2005 - overview

R (NAHS) v Sec health / was a decision lawful if the minister didn’t personally know a key fact? / court rejected the arg that dept knowledge = minister’s knowledge, but someone in dept must know

R (National Association of Health Stores) v Sec of state for Health 2005 - Sedley LJ quote + links to…

R (NAHS) v Sec Health / Sedley LJ - ‘minister sneed know nothing… so long as those advising them know the facts / links to Carltona

3 committees focused on D. legislation

House of Lords Delegated Powers and Regulatory Reform Committee / Joint Committee on Statutory Instruments / House of Lords Secondary Legislation Scrutiny Committee

SIs and the courts

D. Legislated subject to JR + parl sov doesn’t apply to SIs, so courts could declare an SI illegal

R (Javed) v Secretary of State for the Home Department 2001 - facts

Javed case / Court considered if the Asylum Order 1996 was made lawfully by the Home Sec (Order sought to identify certain countries as safe enough to deport asylum seekers to) - Javed argued against Pakistan being on that list

R (Javed) v Secretary of State for the Home Department 2001 - Ruling + Lord Philips

Javed case / courts ruled that the Home Sec was wrong - women and religious minorities (like Javed) would be subject to persecution in Pakistan / Lord Philips - the order ‘fails both in law and on the facts’

Ahmed and Ors v HM Treasury 2010 - facts

Ahmed case / govt orders to free terrorist assets based on ‘reasonable suspicion / Ahmed argued it was against Article 6

Ahmed and Ors v HM Treasury 2010 - Ruling

Ahmed case / SC quashed orders, ruled in Ahmed’s favour - govt acting ultra vipers, did infringe with HRs / emphasised parl sov + RofL

Ahmed and Ors v HM Treasury 2010 - Lord Hope quote on parl sov

Lord Hope - court’s decision in this case ‘upholds the supremacy of Parliament’

R (Public Law Project) v Lord Chancellor 2016 - facts

PLP v LC / LC tried to add a rule to the Legal Aid Act 2010 (LASPO) so that aid applicants would have to have lived in the UK for 1yr minimum

R (Public Law Project) v Lord Chancellor 2016 - ruling

PLP v LC / SC ruled in PLP’s favour - LASPO 2012 enabling provision allowed ministers to vary the scope of services, not exclude people

Examples of resistance to H8 clauses

Public Bodies Act 2011 - bill included many H8 clauses, amended heavily to remove this / EU Withdrawal Act 2018 - Lords published a report that it would ‘fundamentally challenge the constitutional balance of powers’, amended

Pandemic + D. Legislation (Lord Sumption quote)

Led to increased D. Legislation / e.g. Public Health Act 1984 used questionably to justify lockdowns / Parl was sidelined / Lord Sumption - parl allowed covid rules to be ‘steamrolled through with no real scrutiny’

Risks of D. Legislation

Authoritarian governance / undermines representatives + parl sov / less scrutiny / arbitrary decisions

Further reading - Edward Lui - overview

Lui - parl privilege cannot be a defence to JR

Further reading - Edward Lui - Quotes (models)

Lui - ‘parliamentary privilege… is incompatible with the two prevailing models of the separation of powers’ (models being the efficiency and liberty ones)

Further reading - A. Tucker - overview

Tucker - parl sov isn’t absolute because there’s no formal rule of recognition of it in the UK (it’s indeterminate - no clear procedural rules) / can never be fully sure if parl is unlimited, courts don’t always accept parl - sov is adaptable